Sibley v. Sibley

• Decision Date: 03 November 2004
• Docket Number: No. 3D03-2083.,3D03-2083.
• Citation: 885 So.2d 980
• Parties: Montgomery Blair SIBLEY, Appellant, v. Barbara SIBLEY, Appellee.
• Court: Florida District Court of Appeals

885 So.2d 980

Montgomery Blair SIBLEY, Appellant, v. Barbara SIBLEY, Appellee.

No. 3D03-2083.

District Court of Appeal of Florida, Third District.

November 3, 2004.

Order Granting Rehearing in Part December 8, 2004.

Montgomery Blair Sibley, in proper person.

Jay M. Levy; Bette E. Quiat, Miami, for appellee.

Before COPE, GERSTEN and GREEN, JJ.

PER CURIAM.

Montgomery Blair Sibley (the former husband) appeals two post-judgment orders entered after dissolution of marriage. Final judgment in the dissolution action was entered in 1994 and there have been numerous post-judgment proceedings since that time. In this proceeding, the former husband appeals orders compelling payment of attorney's fees and tuition. We affirm those orders.

The former wife requests an order precluding the former husband, an attorney, from representing himself in further appeals in this court. We grant the request.

I.

The former husband appeals an order entered on July 1, 2003 ("the July 1 order") which required the former husband to pay the former wife, Barbara Sibley, $33,119.70 in attorney's fees within sixty days. This order enforced earlier attorney's fee awards which had already been entered against the former husband in prior proceedings.

On this appeal, the former husband argues that one of the underlying attorney's fee orders was entered in error and that the trial court erred in enforcing it. This argument is without merit.

The underlying attorney's fee order which the former husband is trying to attack was entered on March 4, 2003 ("the March 4 order").¹ The former husband appealed the March 4 order to this court, arguing procedural error. This court affirmed without opinion. Sibley v. Sibley, 866 So.2d 1223 (Fla. 3d DCA 2003) (table), cert. denied, ___ U.S. ___, 124 S.Ct. 2909, 159 L.Ed.2d 813 (2004). Since the former husband already appealed the March 4 order and this court already affirmed it, common sense and principles of res judicata dictate that the former husband cannot now mount a second appeal of the March 4 order. The former husband argues that a successive attack on the March 4 order is allowed as a result of the Florida Supreme Court's decision in Florida Department of Transportation v. Juliano, 801 So.2d 101 (Fla.2001). The former husband misunderstands the import of that decision. The Juliano case explains the law of the case doctrine, where there has been an interlocutory appeal followed by a later appeal from a final judgment. See id. at 106.

The Juliano decision does not apply here. The March 4 order was a final order awarding attorney's fees and it was appealed as a final order. The March 4 order is res judicata.

This court has explained that res judicata applies where, as here, there have been multiple final orders in post-dissolution proceedings.

[I]t does not matter that the issue-preclusive effect of the earlier adjudication is asserted later in the same case, rather than in separate, subsequent litigation. Probably because res judicata principles in general apply only to final, appealable determinations, see 33 Fla. Jur.2d Judgments & Decrees § 173 (1994), and successive final judgments in the same case are at least unusual, see Del Castillo v. Ralor Pharmacy, Inc., 512 So.2d 315 (Fla. 3d DCA 1987), it is true that the principle is often broadly and imprecisely stated as applying in subsequent "suits" or "actions." See 32 Fla. Jur.2d Judgments and Decrees § 140. Nevertheless, when there is indeed a final earlier adjudication, its "effect ... as res judicata is not confined in its operation to subsequent independent proceedings, but also applies to all collateral proceedings in the same action."

Utterback v. Starkey, 669 So.2d 304, 305 (Fla. 3d DCA 1996) (footnotes and citations omitted).

The former husband argues that it would work a manifest injustice for this court to enforce the March 4 order. The Florida Supreme Court "has long recognized that res judicata will not be invoked where it would defeat the ends of justice." State v. McBride, 848 So.2d 287, 291 (Fla.2003) (citations omitted).

The former husband argues that it would be a manifest injustice to enforce the March 4 order because the prior panel which affirmed the March 4 order did not write an opinion explaining the panel's reasoning. In the former husband's view, the prior panel was mistaken and should have written an opinion to explain the ruling. This is not a legally sufficient showing of manifest injustice. The district courts of appeal are allowed to issue affirmances without opinion. See R.J. Reynolds Tobacco Co. v. Kenyon, 882 So.2d 986 (Fla.2004).

The former husband argues that the claimed procedural errors in the entry of the March 4 order render the March 4 order void. The former husband moved for relief from judgment under Florida Rule of Civil Procedure 1.540, with respect to the March 4 order and relief was denied by the successor judge, Judge Wilson. That order is one of the orders on appeal herein. However, the former husband has not demonstrated any error in the order denying Rule 1.540 relief.

II.

The former husband next appeals a July 17, 2003 order compelling him to reimburse tuition expenses for two of the parties' children.

Under the parties' marital settlement agreement, the former husband is responsible for payment of educational expenses through college. See Sibley v. Sibley, 816 So.2d 136 (Fla. 3d DCA 2002).

The children are also beneficiaries of trusts set up for their benefit. A guardian ad litem currently serves as the trustee of those trusts. When the former husband has failed to pay tuition, the trusts have made those payments. However, where that has happened, the trustee has requested that the trusts be reimbursed.²

In February 2003 the former wife filed a motion entitled "Emergency Motion to Permit Payment of Deposit for Minor Child, Montgomery Blair Sibley, Jr., at Palmer Trinity [School] and Summer School Tuition for Margaret Harper Sibley and Emergency Motion for Contempt for Failure to Pay Life Insurance Premium" ("the Emergency Motion").

After conducting hearings on March 10 and April 7, 2003, the trial court granted the tuition-related requests. The trustee was authorized to pay the tuition amounts. That part of the order is not challenged on this appeal.

The July 17 order also required former husband to reimburse two of the trusts, in the amounts of $18,130 and $7,207.50, respectively.

The former husband argues that the trial court should not have heard the motion because at that time of the hearing the former husband's seventh motion to disqualify the trial judge was pending.

We reject the former husband's argument, as the point has been waived. The former husband correctly argues that when a motion for disqualification or recusal is pending, it is the court's duty to rule on that motion before ruling on anything else. See Fuster-Escalona v. Wisotsky, 781 So.2d 1063 (Fla.2000). Further, it is not necessary for the movant to request a hearing. See id.

However, disqualification motions cannot be used for "gotcha" litigation tactics. See Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337, 1339 (Fla. 3d DCA 1979). In this case, the former husband and his counsel personally attended the hearing on the Emergency Motion. Nowhere in the transcript did they object that the hearing could not proceed until the court ruled on the pending motion for disqualification.

A party cannot go to a hearing knowing that he has filed a motion for disqualification, make no mention of the pending motion, participate in the hearing, and then after receiving an unfavorable ruling, argue that the court must start over because there was a pending motion for disqualification.

"The well-settled proposition is that the law `does not favor the substitution of a Judge or Justice in a cause after decision which essentially carries a benefit to the successful party.'" Lawson v. Longo, 547 So.2d 1279, 1281 (Fla. 3d DCA 1989) (quoting Ball v. Yates, 158 Fla. 521, 29 So.2d 729, 735 (1946)). In Lawson

the seller waited, having knowledge of the alleged ground for recusal from the second day of trial, until well after final judgment, which was adverse to him. By doing nothing to affirmatively promote or protect the issue of the possible recusal, the seller can be said to have sat on his rocking chair, watching the trial meander by. It is now too late and he has shown no good cause for delay.

Lawson, 547 So.2d at 1281; see also Fischer v. Knuck, 497 So.2d 240, 243 (Fla.1986) ("A motion for recusal is considered untimely when delayed until after the moving party has suffered an adverse ruling unless good cause for the delay is shown.")

The former husband relies on Fuster-Escalona v. Wisotsky, 781 So.2d 1063 (Fla.2000), but that case is not on point. In Fuster-Escalona there was never a hearing on the motion for disqualification. That case addressed how to treat a disqualification motion for purposes of the rule regarding dismissal for lack of prosecution. Id. at 1064-65. It did not involve a situation like the one now before us, where a party participated in a hearing without objecting that there was a pending disqualification motion.

The former husband relies on the thirty-day rule established by Tableau Fine Art Group, Inc. v. Jacoboni, 853 So.2d 299 (Fla.2003), but reliance on that case is misplaced. In Tableau the Florida Supreme Court announced that a motion for disqualification must be ruled on by a trial court within thirty days. Id. at 303. If there is no ruling within thirty days, then disqualification is automatic. See id. at 301. The former husband argues that his seventh motion for disqualification was pending for more than thirty days and therefore Judge Lando should have been disqualified. However, the thirty-day rule of Tableau is prospective only, and came into effect only for motions for disqualification filed on or after August 20, 2003. See City of Hollywood v. Witt, 868 So.2d 1214, 1218 n....