Sharpe v. Calabrese, 87-1972

• Decision Date: 14 July 1988
• Docket Number: No. 87-1972,87-1972
• Citation: 13 Fla. L. Weekly 1651,528 So.2d 947
• Parties: 13 Fla. L. Weekly 1651 Susan W. SHARPE, Appellant, v. Eugene T. CALABRESE, et al., Appellees.
• Court: Florida District Court of Appeals

Page 947

528 So.2d 947

13 Fla. L. Weekly 1651

Susan W. SHARPE, Appellant, v. Eugene T. CALABRESE, et al., Appellees.

No. 87-1972.

District Court of Appeal of Florida Fifth District.

July 14, 1988.

Seymour Benson, Orlando, for appellant.

Shawn G. Rader of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for appellees.

PER CURIAM.

A marriage dissolution action between a wife, appellant Susan W. Sharpe, and a husband, Gene E. Sharpe, was bifurcated with the marriage being dissolved on August 19, 1985, and the other issues being left for later determination. By operation of law under section 689.15, Florida Statutes, upon dissolution of their marriage, the ex-husband and ex-wife became tenants in common of a lot in Dawn Estates, formerly jointly owned. In a marital settlement agreement, the wife agreed to convey her interest in the marital home in Wingfield North to the husband and the husband agreed to pay the wife $50,000 in five payments of $10,000 each and to provide the wife a house not more than $100,000 in value. The wife performed by conveying her interest in the Wingfield lot to the husband who apparently sold, or agreed to sell, it to a third person named David M. Pomerance. ¹ The ex-husband failed to perform his covenants ² under the marital settlement agreement, and as a result the ex-wife recovered a money judgment against the ex-husband for $110,000 (representing $100,000 damages for failure to provide a house and $10,000 for the first payment on the $50,000). On October 8, 1986, this money judgment was duly recorded in the proper public records. ³ The ex-wife also filed an action against the ex-husband to partition the Dawn Estates lot which partition action was consolidated with the pending dissolution action. After a partition sale of the Dawn Estates lot was ordered, upon motion of the ex-wife, the court ordered that, in the event the ex-wife was a successful bidder at the partition sale, rather than make a cash deposit at the sale, the ex-wife, as judgment creditor could give the husband credit against the money judgment for sums due him from the ex-wife's bid at the partition sale. ⁴ On December 23, 1986, David M. Pomerance reconveyed all of his interest in the Wingfield lot to the ex-husband who, on December 26, 1986, conveyed the Wingfield lot to appellees Eugene T. Calabrese and Denise T. Calabrese. On January 6, 1987, with a bid of $1.00, the ex-wife purchased the Dawn Estates lot at the partition sale.

Appellant, the ex-wife, as judgment creditor, filed this action against the Calabreses to foreclose her judgment lien against the Wingfield lot. ⁵ The Calabreses' affirmative defense was to the effect that (1) the Dawn Estates lot purchased by the judgment creditor for $1.00 at the partition sale was worth $270,000, ⁶ (2) even though she did not use her money judgment as a set-off in bidding at the partition sale, she waived her right to foreclose her judgment lien against the Wingfield lot by obtaining court permission to use her money judgment as a set-off in bidding at the partition sale of the Dawn Estates lot, and (3) because the judgment creditor so used her money judgment to obtain her ex-husband's interest in the Dawn Estates lot for so little, she was estopped from foreclosing her judgment lien against the Wingfield lot. Based on the same facts, the Calabreses also counterclaimed for a declaratory decree that the ex-wife's money judgment was satisfied and for a mandatory injunction requiring her to execute a formal satisfaction of her judgment.

Both sides moved for summary judgment. The trial court granted summary judgment for the Calabreses, adjudicating that their title was free and clear of any lien of the money judgment because

the Court is of the opinion that it would be inequitable and unconscionable to allow Mrs. Sharpe to profit from the legal morass which ensued and was largely the creature of her own making. Furthermore, she received all that she might have reasonably expected to and was entitled to receive from Mr. Sharpe under the [marital settlement] Agreement and the litigation that ensued from it.

The judgment creditor appeals. We reverse.

There is no "legal morass"--this is a simple case. The ex-wife has a recorded money judgment which, by operation of law, attached and became a lien against the judgment debtor's interest in the Wingfield lot before that lot was conveyed by the judgment debtor to the Calabreses.

There were no dealings between the ex-wife (judgment creditor) and the Calabreses that could possibly give rise to any waiver or estoppel against the judgment creditor and in favor of the Calabreses as subsequent purchasers of the Wingfield lot. The Calabreses have no basis or standing to collaterally attack the money judgment or to have it declared satisfied or to have the Wingfield lot released from its lien.

If the judgment debtor had an interest in the Wingfield lot at the time a certified copy of the judgment was recorded on October 8, 1986, the lien of the judgment attached to his interest at that time. ⁷ The judgment lien also attached to any interest the judgment debtor received from David M. Pomerance when the deed between those parties was executed on December 23, 1986 (see note 1 herein). In all events, the lien of the money judgment constituted a recorded lien against the Wingfield lot when the judgment debtor conveyed that lot to the Calabreses on December 26, 1986, which of course, was before the partition sale of the Dawn Estates lot on January 6, 1987. It would have made no difference had the...