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SUPREME COURT OF FLORIDACASE NO. SC12-18483DCA CASE NO. 3D10-3009
YOLANDA CARMEN FERRARA,
Appellant,
vs.
EDSON CARLOS DE CAMPOS,
Appellee.
APPELLEE'S ANSWER BRIEF ON JURISDICTION
NANCY A. HASS, ESQUIRENANCY A. HASS, P. A.2100 East Hallandale Beach BoulevardSuite 200Hallandale Beach, Florida 33009Telephone (954) 889-0155Facsimile (954) 889-0154E-mail: nahpa@nahpalaw.comAttorney for Appellee
TABLE OF CONTENTS
Table of Contents 2
Table of Citations 3
Introduction 5
Summary of the Argument 5
Legal Argument/Issues Presented for Review 7
I. The opinion of the District Court of Appeal Third District inDe Campos v. Ferrara, 90 So.3d 865 (Fla. 3d DCA 2012) doesnot expressly or directly conflict with the opinion of theDistrict Court of Appeal Fifth District in Flanders v.Flanders, 516 So.2d 1090 (Fla. 5th DCA 1987) or the opinionof this Honorable Court in Bane v. Bane, 775 So.2d 938 (Fla.
b 2000)7
Conclusion 14
Certificate of Service 15
Certificate of Compliance with Filing and Font Requirements 15
TABLE OF CITATIONS
Cases Page No.
Bane v. Bane775 So.2d 938 (Fla. 2000) 6, 7, 13, 14
De Campos v. Ferrara90 So.3d 865 (Fla. 3d DCA 2012) 6, 7, 13, 14
Encarnacion v. Encarnacion877 So.2d 960 (Fla. 5th DCA 2004) 8, 9
Flanders v. Flanders516 So.2d 1090 (Fla. 5th DCA 1987) 6, 7, 8, 9, 10, 13, 14
Fortner v. Fortner631 So.2d 327 (Fla. 2d DCA 1994) 12
Hirschenson v. Hirschenson996 So.2d 905 (Fla. 4th DCA 2008) 12
Kirkland v. Kirkland253 So.2d 728 (Fla. 1971) 12
Kass v. Kass560 So.2d 293 (Fla. 4th DCA 1990) 12, 13
Smilack v. Smilack858 So.2d 1072 (Fla. 5th DCA 2003) 10
X Corp. v. YPerson622 So.2d 1098 (Fla. 2d DCA 1993) 11
TABLE OF CITATIONS
Statutes Page No.
§ 61, Florida Statutes (2010) 5, 6, 8, 9, 10, 12, 13
§ 61.16, Florida Statutes (2010) 5, 6, 10, 12
§ 61.16(1), Florida Statutes (2010) 9, 10
§ 86, Florida Statutes (2010) 11
INTRODUCTION
The Appellant, YOLANDA CARMEN FERRARA, the Appellee in the District
Court of Appeal Third District will be referred to as the "Former Wife" or "the
Appellant". The Appellee, EDSON CARLOS DE CAMPOS, the Appellant in the
District Court of Appeal Third District will be referred to as the "Former Husband" or
"the Appellee".
SUMMARYOFTHEARGUMENT
In this case, the trial court had jurisdiction and the Former Husband was entitled
to an award of attorney's fees under Florida Statutes Section 61.16 for his attorney's
services that were rendered to enforce the parties' Final Judgment that incorporated the
parties' Property Settlement Agreement where the Former Wife was in violation of the
Agreement. Even in the case where a property settlement agreement contains a specific
waiver, the Former Wife could still be liable for the Former Husband's attorney's fees
where enforcement proceedings were necessitated by the conduct of the Former Wife in
failing to comply with the terms of the parties' Property Settlement Agreement.
Here, the Former Husband filed his enforcement action pursuant to Florida
Statutes Section 61 and the final determination as to the matters raised in his
enforcement proceeding were adjudicated in the Family Court by the lower tribunal.
E The Former Husband's action was very clearly not a declaratory action as defined by
Florida Statutes Section 86, barring the trial court from making an award of attorney's
fees and costs in favor of the Former Husband. The sole existing issue in this case was
5
factual in nature and properly determinable in an action at law and declaratory relief
was not available to the Former Husband. The Former Husband had no doubt about his
rights under the parties' Property Settlement Agreement and was merely seeking to
enforce said Property Settlement Agreement to compel the Former Wife to provide him
with his equal share of the proceeds from the sale of Plant Care. Accordingly, the
EFormer Husband's request for an award of attorney's fees and costs was clearly
governed by Florida Statutes § 61.16. Even in those cases where actions have been
brought in other courts, where the action arose from a dissolution or post-dissolution
proceeding, the Appellate Courts of this State have repeatedly sustained awards of
attorney's fees under Florida Statutes Section 61.
Consequently, the Former Husband respectfully submits that the opinion of the
District Court of Appeal Third District in De Campos v. Ferrara, 90 So.3d 865 (Fla. 3d
DCA 2012) does not expressly or directly conflict with the opinion of the District Court
of Appeal Fifth District in Flanders v. Flanders, 516 So.2d 1090 (Fla. 5th DCA 1987)
or the opinion of this Honorable Court in Bane v. Bane, 775 So.2d 938 (Fla. 2000) and,
I accordingly, this Honorable Court should not accept jurisdiction herein.
ARGUMENT
I. THE OPINION OF THE DISTRICT COURT OF APPEALTHIRD DISTRICT IN DE CAMPOS V. FERRARA, 90 SO.3D865 (FLA. 3D DCA 2012) DOES NOT EXPRESSLY ORDIRECTLY CONFLICT WITH THE OPINION OF THEDISTRICT COURT OF APPEAL FIFTH DISTRICT INFLANDERS V. FLANDERS, 516 SO.2D 1090 (FLA. 5TH DCA1987) OR THE OPINION OF THIS HONORABLE COURTIN BANE V. BANE, 775 SO.2D 938 (FLA. 2000)
The Former Wife incorrectly and inaccurately argues that there is a conflict
between the opinion of the District Court of Appeal Third District in De Campos v.
Ferrara, 90 So.3d 865 (Fla. 3d DCA 2012) and that of the opinion of the District Court
of Appeal Fifth District in Flanders v. Flanders, 516 So.2d 1090 (Fla. 5th DCA 1987)
and the opinion of this Honorable Court in Bane v. Bane, 775 So.2d 938 (Fla. 2000).
In this case, the Former Husband's 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 was founded
upon the jurisdiction acquired by the trial court over the parties in the dissolution of
marriage proceedings and the matter pertained to the enforcement of the parties' Final
Judgment. Contrary to the Former Wife's argument, clearly, the trial court had the
jurisdiction and authority to award the Former Husband attorney's fees and costs,
consistent with the very authority enunciated by this Honorable Court in Bane v. Bane,
775 So.2d 938, 941-42 (Fla. 2000) (where the proceedings are filed under chapter 61
E and pertain to enforcement or modification of the final judgment of dissolution and are
founded upon the jurisdiction acquired by the court over the parties in the divorce
proceedings section 61.16 does apply).
Citing to Flanders v. Flanders, 516 So.2d 1090 (Fla. 5th DCA 1987), the Former
Wife incorrectly argues that because a property settlement agreement is not subject to
modification, where former spouses engage in litigation over the interpretation of a
non-modifiable property settlement agreement, Florida Statutes § 61 does not apply and
attorney's fees may not be awarded. If at 1092. Fla. Stat. § 61 (2010).
In this case, the parties were not arguing over the "interpretation" of their
Property Settlement Agreement. Rather, in violation of the trial court's Final Judgment
and the parties' Property Settlement Agreement, the Former Wife had surreptitiously
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. Accordingly, the Former Husband was merely moving to enforce
the terms of the parties' Property Settlement Agreement and recover his fifty percent
(50%) share of the sale proceeds.
Moreover, subsequent to the District Court of Appeal Fifth District's decision in
Flanders, the Fifth District issued its decision in Encarnacion v. Encarnacion, 877
So.2d 960 (Fla. 5th DCA 2004). In Encarnacion, the District Court of Appeal Fifth
District reiterated its position that at the time a judgment of dissolution of marriage
becomes final, the parties' property rights, if determined by the judgment, are fixed as a
E matter of law. However, the Fifth District went on to state that, "[a] court may clarify
what is implicit in a final judgment, and enforce the judgment. But after a fmal
judgment is rendered, a trial court lacks jurisdiction under chapter 61 to determine
property rights, unless the final judgment reserves jurisdiction for a specific purpose
regarding identified property." Il at 963.
Here, pursuant to the terms of the parties' Property Settlement Agreement, the
parties were each to receive one half (1/2) of the proceeds from the sale of the parties'
company, Plant Care, which business the parties had established in 1981. The parties'
Final Judgment clearly sets forth in paragraph 2 that, "[t]he terms of the Property
Settlement Agreement will be incorporated herein by reference." Further, paragraph 3
of the parties' Final Judgment specifically provides that, "[t]he Court will retain
jurisdiction to enforce this order".
Accordingly, in this case, the trial court had jurisdiction under chapter 61 to
determine the rights of the parties, and the parties' Final Judgment specifically reserved
jurisdiction for the purpose of enforcing said order, which provided for the Former
Husband to receive one half (1/2) of the proceeds of the sale of Plant Care. Further, the
Former Husband specifically brought his action under Florida Statutes §61 and not
Florida Statutes §86, and was thus entitled to an award of attorney's fees as properly
pled.
As such, the Former Wife's reliance on Flanders is misplaced, as Encarnacion,
which succeeds the District Court of Appeal Fifth District's decision in Flanders,
clearly provides the trial court with the authority not only under chapter 61 to enforce
the parties' Final Judgment, but to award attorney's fees to the Former Husband,
consistent with Florida Statutes Section 61.16(1) (The court may from time to time,
after considering the financial resources of both parties, order a party to pay a
reasonable amount for attorney's fees, suit money, and the cost to the other party of
maintaining or defending any proceeding under this chapter, including enforcement and
modification proceedings and appeals. Fla. Stat. § 61.16 (2010)).
In this case, the trial court not only retained jurisdiction to enforce the terms of
the parties' Property Settlement Agreement to ensure that the Former Husband received
the equitable distribution of the marital estate to which he was entitled, but as this
matter was governed by Florida Statutes § 61, the trial court also had the authority to
award attorney's fees and costs on behalf of the Former Husband and under the
reasoning of Smilack v. Smilack, 858 So.2d 1072 (Fla. 5th DCA 2003), could even
modify the terms of the parties' Final Judgment to make such an award. If at 1075. In
fact, even the District Court of Appeal Fifth District in Flanders in 1987 understood
that Florida Statutes Section 61.16, providing for an award of attorney's fees, might be
held to be applicable to the enforcement of a property settlement agreement. Flanders,
516 So.2d at 1092.
The Former Wife also improperly maintains that the Former Husband's 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 was a "declaratory action" and that the Former Husband was not
entitled to an award of attorney's fees and costs from the Former Wife.
Here, the Former Husband was not in any doubt about his right to an equitable
distribution of the sale proceeds of Plant Care, consistent with terms of the parties'
Property Settlement Agreement, nor was there any question as to the construction or
validity of the parties' Property Settlement Agreement. Further, the Former Husband
never sought any relief consistent with Florida Statutes Section 86.
To this end, the District Court of Appeal Second District in X Corp. v. Y Person,
622 So.2d 1098 (Fla. 2d DCA 1993) concluded that to state a cause of action for
declaratory relief, a party seeking a declaration must show that they are in doubt as to
the existence or nonexistence of some right, status, immunity, power or privilege and
that they are entitled to have such doubt removed. If at 1101.
Here, the Former Husband was not seeking to obtain a declaration of rights,
status or other equitable or legal relations under the parties' Property Settlement
Agreement. Additionally, the Former Husband was not in any doubt as to the existence
of his right to fifty percent (50%) of the proceeds from the sale of Plant Care.
Accordingly, the Former Husband was not seeking declaratory relief from the Family
Court.
In this case, the Former Husband's rights were violated, as on August 29, 2008, in
violation of the trial court's Final Judgment and the parties' Property Settlement
Agreement, the Former Wife surreptitiously 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. Further, other
legal relief was immediately available to the Former Husband in the form of a motion
for enforcement before the Family Court, which the Former Husband filed and brought
before the Family Court for resolution, consistent with the trial court's reservation of
jurisdiction in the parties' Final Judgment, as well as the relief afforded to the Former
Husband consistent with Florida Statutes Section 61.
In the instant proceeding, the Former Husband's enforcement action was brought
in the Family Court and was resolved by the Family Court. Accordingly, the Former
Husband's request for an award of attorney's fees and costs was clearly governed by
Florida Statutes § 61.16 (2010). Even in those cases where actions have been brought
in other courts, where the action arose from a dissolution or post-dissolution
proceeding, the Appellate Courts of this State have repeatedly sustained awards of
attorney's fees under Florida Statutes Section 61. § 61 and § 61.16. See Kirkland v.
Kirkland, 253 So.2d 728 (Fla. 1971) (a party who seeks to enforce a final judgment of
dissolution of marriage is entitled to attorney's fees under Florida Statutes Section 61
where it is necessary for a party to either go into court or if a party is brought into court
for the purpose of securing or defending their financial rights under a dissolution
decree), Hirschenson v. Hirschenson, 996 So.2d 905 (Fla. 4th DCA 2008) (trial court
in which former wife filed post-dissolution motions to enforce alimony and child
support was authorized to award former wife attorney's fees for the services of her
bankruptcy counsel in securing and enforcing the alimony, child support, and other
expenses in bankruptcy proceedings against former husband consistent with Florida
Statutes Section 61.16), Fortner v. Fortner, 631 So.2d 327 (Fla. 2d DCA 1994) (the
right to attorney's fees under section 61.16 should not depend upon the courtroom in
which the twine is unraveled), and Kass v. Kass, 560 So.2d 293 (Fla. 4th DCA 1990)
, (companion lawsuits to the dissolution proceeding involved entities that were wholly
12
owned and controlled by the husband and although the issues were resolved in separate
proceedings, the trial court determined that they were so intertwined that the fees could
all be regarded as fees incurred under Florida Statutes Section 61).
In this case, the Respondent/Former Husband's 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 was clearly an action under Florida Statutes Section 61 to enforce the unfulfilled
terms of the parties' Property Settlement Agreement and attendant Final Judgment. The
Former Husband's enforcement action was not a "declaratory action" as the District
Court of Appeal Third District correctly reasoned. As such, the trial court was not
barred from awarding the Former Husband attorney's fees and costs from the Former
Wife, as was erroneously set forth by the lower tribunal in its Order on Former
Husband's Motion for Rehearing.
Consequently, the Former Husband respectfully submits that the opinion of the
District Court of Appeal Third District in De Campos v. Ferrara, 90 So.3d 865 (Fla. 3d
DCA 2012) does not expressly or directly conflict with the opinion of the District Court
of Appeal Fifth District in Flanders v. Flanders, 516 So.2d 1090 (Fla. 5th DCA 1987)
or the opinion of this Honorable Court in Bane v. Bane, 775 So.2d 938 (Fla. 2000) and,
accordingly, this Honorable Court should not accept jurisdiction herein.
13
CONCLUSION
Based upon the foregoing argument and authority, the Former Husband
etfully submits that the opinion of the District Court of Appeal Third District in De
pos v. Ferrara, 90 So.3d 865 (Fla. 3d DCA 2012) does not expressly or directly
ict with the opinion of the District Court of Appeal Fifth District in Flanders v.
ders, 516 So.2d 1090 (Fla. 5th DCA 1987) or the opinion of this Honorable Court
zne v. Bane, 775 So.2d 938 (Fla. 2000) and, accordingly, this Honorable Court
ld not accept jurisdiction herein.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY, that a true copy of the foregoing has been sent via E-
mail and United States First Class Mail to LYUBOV ZELDIS, ESQUIRE, Attorney for
the Appellant/Former Wife, 915 Middle River Drive, Suite 600, Fort Lauderdale,
Florida 33304, this 3 0 day ofNovember, 2012.
By:NANCY A. HA½fS, ESQUIREFlorida Bar No. 881635Nancy A. Hass, P.A.2100 East Hallandale Beach BoulevardSuite 200Hallandale Beach, Florida 33009E-mail: nahpa@nahpalaw.comTelephone (954) 889-0155Facsimile (954) 889-0154
CERTIFICATE OF COMPLIANCE WITH FILINGAND FONT REQUIREMENTS
I HEREBY CERTIFY, that the Appellee's Answer Brief on Jurisdiction has
been submitted to this Honorable Court via e-mail transmission and in Times New
Roman 14 point font in compliance with Rule 9.210(a)(2), Florida Rules of Appellate
Procedure.
By:NANCY A. HAS , ESQUIREFlorida Bar No. 881635
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