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Campos v Ferrara

Case No. 3D10-3009 (FL Dist. 3 Ct. App., Jun. 6, 2012)

Edson Carlos De Campos (“Former Husband”), appeals the denial of his Petition to Determine Entitlement to and Award Attorney’s Fees and Costs and the denial of his rehearing motion. For the following reasons, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY



On February 22, 1991, a Final Judgment dissolving the parties’ marriage was entered by the trial court, which incorporated the parties’ Property Settlement Agreement. The trial court also retained jurisdiction to enforce the Final Judgment and the Property Settlement Agreement. Pursuant to the terms of the parties’ Property Settlement Agreement, the parties were each to receive one-half of the proceeds from the sale of the parties’ company, Plant Care.

On August 29, 2008, in violation of the trial court’s Final Judgment and the parties’ Property Settlement Agreement, Yolanda Carmen Ferrara (“Former Wife”) sold the parties’ business, Plant Care, without revealing the sale of the business to the Former Husband. The Former Wife also misappropriated all of the proceeds from the sale of Plant Care. In addition, once the sale of the business was ultimately revealed to the Former Husband, the Former Wife fraudulently misrepresented the amount of the proceeds that resulted from the sale in an effort to reduce any potential liability to the Former Husband.

On November 5, 2008, the Former Husband filed a Verified Emergency Supplemental Petition for an Ex-Parte Temporary Injunction Preserving the Status Quo and Freezing Sales Proceeds, for an Order Compelling Payment, Contempt, and Other Relief with the trial court. The trial court determined that the Former Husband’s Petition should be treated as a petition for enforcement and granted a temporary injunction. The Former Wife subsequently filed an Emergency Petition to Dissolve the Injunction and argued that she had already previously satisfied the requirements of the Property Settlement Agreement. Specifically, the Former Wife contended that in February 1993 she incorporated a business called Plant Care, Inc. and transferred the assets and liabilities of Plant Care to Plant Care, Inc. The Former Wife argued that this constituted a “sale” of the business within the meaning of the Property Settlement Agreement and, in accordance therewith, she paid Former Husband $48,000, which constituted approximately half of the sales of Plant Care at the time of the transfer from Plant Care to Plant Care, Inc. The Former Husband contended that the $48,000 payment did not relate to Plant Care, Inc.
 

 

Judge(s): Barbara Lagoa
Jurisdiction: Florida Court of Appeals, Third District
Related Categories: Civil Remedies
 
Trial Court Judge(s)
Kevin Emas

 
Court of Appeals Judge(s)
Angel Cortinas
Barbara Lagoa
Frank Shepherd

 
Appellant Lawyer(s) Appellant Law Firm(s)
Nancy Hass

 
Appellee Lawyer(s) Appellee Law Firm(s)
Lyubov Zeldis

 

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Click the maroon box above for a formatted PDF of the decision.
chapter 61, which it had acquired and retained over the former husband and $48,000 paid by the former wife to the former husband in 1993 was for the under chapter 61, florida statutes, and because we find that section 61.16(1), settlement agreement had been satisfied, or whether enforcement of those rights action was essentially an equitable declaratory proceeding to construe and enforce husband was presently entitled to one-half of the net proceeds received by the agreement and to enforce it. neither party is entitled to an section 61.16(1), florida statutes, provides, in pertinent part, as follows: parties’ property settlement agreement, not an action to interpret or declare the the former husband. the former wife also misappropriated all of the proceeds award of section 61.16(1) fees as petition for declaratory judgment, which was a and remand for the trial court to determine the former husband’s entitlement to attorney’s fees from the former wife, it concluded that it was bound by the 10 but such waiver depends upon relationship between the parties and their rights with respect to the matter before from the former wife. the trial court determined that the former husband’s interest in, or value of, plant care. the trial court further ruled that the former appellant, the court, without ordering that anything be done or awarding damages. “section financial resources of both parties, order a party to pay a unlike flanders, the trial court, here, was not called upon nor required to rights under the parties’ property settlement agreement and was merely seeking to governs the issue of entitlement to attorney’s fees, we reverse the trial court’s order and the ex-husband filed a motion for enforcement of the final judgment. id. the parties’ property settlement agreement do not bar the former husband from requirements of the property settlement agreement. specifically, the former wife lower tribunal no. 91-2879 former wife in the dissolution proceedings, to enforce the agreement as law governing parties’ entitlement to fees the circuit court, the party seeking a declaration must . . . show that he is in doubt costs. because there is no language, express or implied, in the agreement before us authority to that effect (statute or contract) likewise the waiver of attorney fees the parties’ property settlement agreement. flanders, 516 so. 2d at 1091. when a pleading to enforce it. although the trial court correctly sought to look to the not final until disposition of timely filed motion for rehearing. fla. l weekly at d1666 (quoting conley v. morley realty corp., 575 so. 2d 253, on february 22, 1991, a final judgment dissolving the parties’ marriage under section 61.16(1). florida courts generally have held that a party to a sold the parties’ business, plant care, without revealing the sale of the business to petition to determine entitlement to and award attorney’s fees and costs and the florida statutes (2010), rather than the parties’ property settlement agreement, iii. conclusion on november 5, 2008, the former husband filed a verified emergency edson carlos de campos (“former husband”), appeals the denial of his former husband’s contributions to the construction of the home that the parties wife did not contest the former husband’s rights under the property settlement agreement at issue did not provide for an award of attorney’s fees, the former so. 2d 1090 (fla. 5th dca 1987), the trial court concluded that: (1) the property litigation involving the agreement, and section 61.16, lagoa, j. agreement. rather, she contended that the former husband’s rights already had denial of his rehearing motion. for the following reasons, we reverse. hearing was held. on october 20, 2010, the trial court entered an order denying 2011); see also kelner v. woody, 399 so. 2d 35 (fla. 3d dca 1981). quo and freezing sales proceeds, for an order compelling payment, contempt, a petition for a declaratory judgment asks the court to define the legal husband’s petition should be treated as a petition for enforcement and granted a appellee. 7 ________________ 86.011(1), florida statutes (2009), confers upon the circuit courts jurisdiction to and transferred the assets and liabilities of plant care to plant care, inc. the of envtl. prot. v. garcia, 36 fla. l. weekly d1664, d1666 (fla. 3d dca aug. 2, to an award of attorneys’ fees in the matter and the amount, if any, of such fees. resided in during their marriage, and that it did not represent payment for any 5 held in escrow until the trial court held an evidentiary hearing on the former power, privilege or right.’ however, in order to properly invoke the jurisdiction of the parties’ property settlement agreement. applying flanders v. flanders, 516 fifty percent of the proceeds from the 2008 sale of the assets of plant care, inc., be husband “is to receive one-half of the proceeds from the sale of the company, plant settlement agreement, not section 61.16, florida statutes (2010)1 basis. property settlement agreement can waive his statutory right to an award of the sale proceeds according to his interpretation of the parties’ agreement, and 3 dca 1974) (“just as the award of attorney’s fees is dependent upon express florida statutes, should not be applied. ________________ paid former husband $48,000, which constituted approximately half of the sales from the sale of plant care. in addition, once the sale of the business was issue of entitlement to attorney’s fees, and (2) because the property settlement case.”); posner v. posner, 237 so. 2d 186, 188 (fla. 3d dca 1970). should also be dependent upon express language which we find lacking in instant ordered the ex-husband to pay an award of attorney’s fees to the ex-wife. id. the because we find that the proceedings below were enforcement proceedings equal share of the proceeds from the sale of plant care. he did not assert any pertains to an enforcement or modification of the final decree”). nature of the proceedings below 2009. the trial court ruled in favor of the former husband, concluding that the husband’s entitlement to attorney’s fees is properly governed by section 61.16(1), misrepresented the amount of the proceeds that resulted from the sale in an effort reversed and remanded. used in the agreement must clearly and unambiguously express waiver or the care, which is owned by [the wife].” the former husband had no doubt as to his ultimately revealed to the former husband, the former wife fraudulently “doubt about the existence or non-existence of his rights or privileges.” garcia, 36 no. 3d10-3009 this appeal ensued. judge. the court may from time to time, after considering the ii. analysis agreement contains no provision for attorney’s fees in and other relief with the trial court. the trial court determined that the former below. cf. batista v. batista, 585 so. 2d 459, 461 (fla. 1st dca 1991) (reversing interpret or construe the parties’ property settlement agreement. the trial court 2 freezing sales proceeds for and an order compelling payment, contempt and the former husband’s motion for rehearing. while the trial court expressed its edson carlos de campos, former wife, as the pleading filed with the trial court was not an equitable agreement. the trial court also retained jurisdiction to enforce the final judgment parties’ property settlement agreement, yolanda carmen ferrara (“former wife”) parties’ rights under the agreement. flanders is therefore distinguishable on that the former husband contends that the trial court erroneously relied upon an appeal from the circuit court for miami-dade county, kevin emas, express language to that effect. see sasnett v. sasnett, 683 so. 2d 177, 178 (fla. denying the former husband’s request for an award of attorney’s fees and costs on august 29, 2008, in violation of the trial court’s final judgment and the 4 husband’s entitlement to an award of attorney’s fees, we cannot agree with the render declaratory judgments as to the existence or nonexistence of any ‘immunity, to dissolve the injunction and argued that she had already previously satisfied the inc. separate action, was not filed under chapter 61 and “§ 61.16, florida statutes ex-husband appealed the award of attorney’s fees and the court reversed, holding contended that in february 1993 she incorporated a business called plant care, inc. the trial court on march 18, 2010. on may 3, 2010, the trial court entered an order proceeds from the sale of the parties’ company, plant care. state of florida, january term, a.d., 2012 as to the existence or nonexistence of some right or status, . . . [and] that there is a the award of attorney’s fees and costs nor an express waiver of attorney’s fees and former wife at the closing of the sale of plant care, inc. on august 28, 2008. the flanders in denying his request for an award of attorney’s fees and costs from the see e.g., bane v. bane, 775 so. 2d 938, 943 (fla. 2000); vitale v. vitale, 31 so. [i]n real legal substance, this [was] merely an equitable the cost to the other party of maintaining or defending 255 (fla. 3d dca 1991)); see also kelner, 399 so. 2d at 38. moreover, the former reasonable amount for attorney’s fees, suit money, and and modification proceedings and appeals. incorporated into the judgment, section 61.16(1) is applicable to the proceedings declaratory proceeding to construe the parties’ property settlement agreement but because the petition in this matter invoked the trial court’s jurisdiction under i. factual and procedural history the former wife contends that the parties’ property settlement agreement to reduce any potential liability to the former husband. declaratory proceeding to construe the parties’ property opinion filed june 6, 2012. trial court’s conclusion that the proceedings were essentially declaratory in nature. florida statutes. the parties’ property settlement agreement contains neither a provision for 2006); dean v. dean, 655 so. 2d 243 (fla. 3d dca 1995). the trial court granted the former wife’s petition to dissolve the other relief. a final evidentiary hearing was subsequently held on november 17, vs. any proceeding under this chapter, including enforcement filed a petition for accounting and for equitable distribution of property proceeds, temporary injunction and ordered that the sum of $152,500, which represented 6 that , governed the nancy a. hass (hallandale beach), for appellant. on may 13, 2010, the former husband filed a motion for rehearing and a authority of flanders to deny the former husband’s petition for attorney’s fees. 2 on december 17, 2009, the former husband filed his petition to determine meaning of the property settlement agreement and, in accordance therewith, she third district court of appeal “real legal substance” of the proceedings before it in order to determine the former fee award provision in the settlement agreement precludes a statutory fee award 9 final judgment previously entered by the court. therefore, the issue of the former governs the former husband’s rights to fees and she argues that the absence of a lyubov zeldis (ft. lauderdale), for appellee. former husband contended that the $48,000 payment did not relate to plant care, at their essence, the proceedings before the trial court were for enforcement of a husband was not entitled to fees. before shepherd, cortiÑas, and lagoa, jj. enforce the agreement by compelling the former wife to provide him with his former wife argued that this constituted a “sale” of the business within the language must be such that an interpretation of the agreement as a whole can lead seeking an award of attorney’s fees under section 61.16(1). entitlement to and award attorney’s fees and costs and a hearing was held before the parties’ property settlement agreement provided, in pertinent part, that the the trial court construed the stipulated property settlement, ordered a division of id. at 1092. to no other conclusion but waiver.”); scott v. scott, 303 so. 2d 683, 684 (fla. 4th attorney’s fees in an enforcement proceeding,2 was required to determine whether the former husband’s rights under the property in flanders, a sale of jointly owned marital property was made pursuant to 3d 970 (fla. 4th dca 2010); ulbrich v. coolidge, 935 so. 2d 607 (fla. 4th dca (1989), does not apply in the absence of a marital relationship unless the matter attorney’s fees under section 61.16(1). and the property settlement agreement. pursuant to the terms of the parties’ husband’s petition for temporary injunction preserving the status quo and was entered by the trial court, which incorporated the parties’ property settlement 8 1 bona fide, actual, present, and practical need for the declaration . . . .” state, dep’t that can be construed as an intent to waive attorney’s fees and costs, the terms of been satisfied and her obligations under the agreement had been discharged. supplemental petition for an ex-parte temporary injunction preserving the status trial court deferred ruling on the issue of whether the former husband was entitled belief in both orders that equity entitled the former husband to an award of the parties could not agree as to the distribution of the sale of proceeds, the ex-wife temporary injunction. the former wife subsequently filed an emergency petition was required. therefore, this was an enforcement proceeding to enforce the of plant care at the time of the transfer from plant care to plant care, inc. the there was no such doubt on the part of the former husband in this case. yolanda carmen ferrara, 2d dca 1996) (“in order to find that a waiver of rights has occurred, the language award of attorney’s fees because the property settlement property settlement agreement, the parties were each to receive one-half of the


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