Semko v. Semko

• Decision Date: 06 September 1988
• Docket Number: No. 88-904,88-904
• Citation: Semko v. Semko, 537 So.2d 588, 13 Fla. L. Weekly 2090 (Fla. App. 1988)
• Parties: 13 Fla. L. Weekly 2090 Theresa D. SEMKO, Appellant, v. William SEMKO, Appellee.
• Court: Florida District Court of Appeals

Page 588

537 So.2d 588

13 Fla. L. Weekly 2090

Theresa D. SEMKO, Appellant, v.William SEMKO, Appellee.

No. 88-904.

District Court of Appeal of Florida Third District.

Sept. 6, 1988.

Rehearing Denied Nov. 2, 1988.

Harold Peter Barkas, Miami, for appellant.

Horton, Perse & Ginsberg and Mallory Horton, Miami, for appellee.

Before SCHWARTZ, C.J., and BASKIN, J., and JOSEPH P. McNULTY, Associate Judge.

BASKIN, Judge.

Theresa Semko appeals an order on Motion to Clarify Final Judgment entered in post-dissolution of marriage proceedings.The amended final judgment included a provision ordering the distribution of "the stock securities owned by the parties, jointly, severally or in trust"; it did not refer to the wife's retirement plan.Neither party appealed the amended final judgment.Upon the wife's motion for clarification, the court entered an order stating that the stock distribution provisions in the amended final judgment included all stocks of the "Bell System Plan For Salaried Employees."Appellant contends that the order, characterized as a clarification, is actually an impermissible modification of property rights.We agree.

A trial judge may clarify what is implicit in the final judgment.Tinsley v. Tinsley, 490 So.2d 205(Fla. 3d DCA1986).In the case before us, the final judgment ordering distribution of the parties' property made no mention of the wife's retirement plan.Thus, the subsequent order requiring distribution of appellant's retirement plan constitutes a redetermination of the parties' property rights and improperly modifies a vested right.SeeHarrell v. Harrell, 515 So.2d 1302(Fla. 3d DCA1987);Miller v. Miller, 455 So.2d 436(Fla. 2d DCA1984), review denied, 462 So.2d 1107(Fla.1985);Covin v. Covin, 403 So.2d 490(Fla. 3d DCA1981);Schneider v. Schneider, 296 So.2d 77(Fla. 3d DCA1974);Mintz v. Ellison, 233 So.2d 156(Fla. 3d DCA1970).See alsoFranks v. Franks, 469 So.2d 934(Fla. 3d DCA1985);Poling v. Tresidder, 373 So.2d 405(Fla. 4th DCA1979)(court may not modify provision of property rights adjudicated in final judgment by petition entitled motion for enforcement but which is actually an effort to seek determination of property interest).Cf.Golub v. Golub, 336 So.2d 693(Fla. 2d DCA1976)(order requiring transfer of stocks was enforcement of final judgment, not modification).The court did not retain jurisdiction and the record does not disclose the presence of circumstances which would allow...