The Florida Bar v. Cibula, No. 89,551.

• Court: United States State Supreme Court of Florida
• Writing for the Court: PER CURIAM.
• Citation: 725 So.2d 360
• Decision Date: 25 November 1998
• Docket Number: No. 89,551.
• Parties: THE FLORIDA BAR, Complainant, v. Frank G. CIBULA, Jr., Respondent.

725 So.2d 360

THE FLORIDA BAR, Complainant,
v.
Frank G. CIBULA, Jr., Respondent

No. 89,551.

Supreme Court of Florida.

November 25, 1998.

Rehearing Denied February 9, 1999.

725 So.2d 361

John F. Harkness, Jr., Executive Director, Tallahassee, Florida, and Ronna Friedman Young, Bar Counsel, Fort Lauderdale, for Complainant

Robert A. Springer of Springer & Springer, Palm Springs, for Respondent.

PER CURIAM.

We have for review the complaint of The Florida Bar and the referee's report regarding alleged ethical breaches by Frank G. Cibula, Jr. We have jurisdiction. See art. V, § 15, Fla. Const.

At issue in this case is respondent Cibula's testimony under oath during two court hearings held in connection with his alimony obligations. In August 1991, at a hearing on a motion for contempt for failure to pay alimony, Cibula testified under oath that he earned $3000 per month. Again, at a second hearing concerning his alimony obligation held in November of 1991, Cibula testified under oath that he earned $3000 per month, or $36,000 per year. On May 31, 1996, Judge Stephen A. Rapp entered a Final Order of Modification that stated:

The Former Husband misrepresented his income in 1991 in order to induce the Former Wife to agree to modify the alimony. The true facts would have justified the modification in 1991. The Court finds that the Former Wife never really believed the Former Husband in any event. The Former Husband's misrepresentations have resulted in additional time and expense

725 So.2d 362

in attorney's fees for which he should be held responsible.

On December 17, 1996, The Florida Bar filed a complaint against Cibula charging that his testimony was knowingly false and that in so testifying Cibula had violated rule 3-4.3 (conduct that is unlawful or contrary to honesty and justice), rule 4-3.3(a)(1) (false statement of material fact to a tribunal), and rule 4-8.4(c) (conduct involving dishonesty, fraud, deceit or misrepresentation), of the Rules Regulating The Florida Bar.

After a hearing, the referee found that Cibula's income for 1991 was greatly in excess of $36,000, and that Cibula knew his testimony was false at the time he gave it. Accordingly, the referee found Cibula guilty of the charged misconduct and recommended that he be suspended from the practice of law for sixty days with automatic reinstatement at the end of the period of suspension. The referee also recommended that costs be assessed against Cibula.

The Florida Bar filed a petition for review seeking imposition of a harsher discipline—a ninety-one-day suspension and withdrawal of Cibula's civil trial lawyer certification. Cibula filed a cross-petition challenging the referee's finding that the misrepresentations were made intentionally, the propriety of the sixty-day suspension, and the award of costs.

FINDINGS OF FACT

Cibula argues that the Bar did not prove by clear and convincing evidence that his misrepresentations to the court regarding his income were intentional. Cibula's burden on review, however, is to demonstrate "that there is no evidence in the record to support [the referee's] findings or that the record evidence clearly contradicts the conclusions." Florida Bar v. Jordan, 705 So.2d 1387, 1390 (Fla.1998) (quoting Florida Bar v. Spann, 682 So.2d 1070, 1073 (Fla.1996)). Where the referee's findings are supported by competent substantial evidence, "this Court is precluded from reweighing the evidence and substituting its judgment for that of the referee." Jordan, 705 So.2d at 1390 (quoting Florida Bar v. MacMillan, 600 So.2d 457, 459 (Fla.1992)).

Here, the referee's finding that Cibula's misrepresentations to the court regarding his income were intentional is clearly supported by competent substantial evidence in the record. Cibula argues that nothing in the record proves that he knew, at the time of his testimony, what his total annual income would be. However, even by his own account of the draws he took from his law practice in 1991, by the time he first testified at the August hearing, Cibula had already paid himself $35,200, and by the time he testified in November that his annual income was about $36,000, he had already drawn a total of $44,200. Though he may not have known at the time of his testimony what his total income would be, this evidence clearly supports a finding that he knew it would be in excess of $36,000 for the year. In addition to this evidence, the referee's finding is bolstered by four other categories of evidence specifically listed in his report: (1) Cibula's apparent overpayment of taxes by $100,000 as reflected in his 1991 tax return; (2) the testimony of the Bar's expert accountant regarding Cibula's actual taxable income as shown on his 1991 tax return, the accountant's opinion that overpayment of taxes is a method of hiding income from an ex-spouse, and documentation showing that Cibula's income level for other years was never less than six figures; (3) the testimony of James Rich, counsel for Cibula's ex-wife, regarding Cibula's reluctance to divulge his tax information during the modification proceedings and the fact that Cibula had consistently represented to him that his income was $3000 a month; and (4) the contempt orders and confinement previously imposed upon Cibula for his failure to pay alimony, which showed a pattern of attempting to evade this responsibility. Accordingly, the referee's finding that Cibula intentionally misrepresented his income in his testimony to the court is approved.

DISCIPLINE

Both the Bar and Cibula disagree with the referee's recommendation that Cibula be suspended for sixty days—the Bar because it is too lenient, and Cibula because it is too harsh. While the Bar agrees that suspension is appropriate, it argues that a

725 So.2d 363

ninety-one-day suspension requiring proof of rehabilitation before reinstatement is required because of several important factors: (1) Cibula lied under oath two times; (2) his previous conduct established a pattern of attempting to evade his alimony responsibilities; and (3) the apparent motive behind his representations was personal and financial gain. The Bar also argues that Cibula's certification in the area of civil...