IN THE DISTRICT COURT OF APPEALS OF THE STATE OF FLORIDAFOURTH DISTRICT, 1525 PALM BEACH LAKES BLVD., WEST PALM

BEACH, FL 33401

APPEAL NO. 4D15-4279 (consolidated for panel purposes with

appeal nos. 4D14-4842, 4D15-0792 & 4D15-1324)

JON M. NEWMAN,

Appellant,

v.

MARYBETH F. NEWMAN n/k/a MARYBETH FARRELL

Appellee.

INITIAL BRIEF OF APPELLANT

FINAL APPEAL FROM THE CIRCUIT COURT OF THE 15TH JUDICIALCIRCUIT IN AND FOR PALM BEACH COUNTY, FLORIDA

L.T. Case No. 502012DR008050XXXXNB

BRADY & BRADY, P.A.Jeanne C. Brady, Esq.Florida Bar No. 0997749Frank R. Brady, Esq. Florida Bar No. 0588024Appellant’s counsel1200 N. Federal Hwy., Suite 200Boca Raton, FL 33432Phone: (561) 338-9256email: Jeanne@bradylawfirm.biz

Frank@bradylawfirm.biz

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IN THE DISTRICT COURT OF APPEALS OF THE STATE OF FLORIDAFOURTH DISTRICT, 1525 PALM BEACH LAKES BLVD.

WEST PALM BEACH, FL 33401

JON M. NEWMAN, )Appellant/Former Husband, )

-vs- ) )MARYBETH NEWMAN, ) Appellee/Former Wife. )

4TH DCA appeal no. 4D15-4279(consolidated for panel purposes with appealnos. 4D14-4842, 4D15-0792 & 4D15-1324)

LT Case No. 502012DR008050XXXXNB

PRELIMINARY STATEMENT

This appeal arises from several orders rendered after the final judgment

dissolving the long term marriage between Appellant/Former Husband, JON M.

NEWMAN (“Husband”), and Marybeth F. Newman n/k/a Marybeth Farrell (“Wife”).

Citations to documents in the electronic record are made to the electronic record filed

in this Appeal no. 4D15-4279 on March 31, 2016, and are made with the abbreviation

“R” followed by the page assigned by the Index to Record for Appeal no. 4D15-4279,

and the pdf page of the electronic record.1

Transcripts of the trial and several other hearings were filed electronically with

the Clerk of the lower court in accordance with this Court’s April 15, 2016

supplementation order. The lower court Clerk electronically uploaded these

transcripts to this Court’s docket as two documents, with no supplemental index. On

May 11, 2016 the Clerk uploaded transcripts of: (1) the final dissolution trial, which

took place on Sept. 29th and October 8th, 2014; (2) the January 27, 2015 hearing; (3)

the February 13, 2015 hearing; (4) the October 8, 2015 hearing; and (5) the October

27, 2015 hearing. References to those transcripts are made with the abbreviation

“T1" followed by the pdf page number of the transcripts. On May 24, 2014 the lower

1 Husband notes that there is a separate electronic record, with differentpagination, filed in Appeal no. 4D14-4842 on April 17, 2015.

-i-

court Clerk electronically filed the transcript of a September 24, 2014 hearing.

References to that transcript are made with the abbreviation “T2" followed by the pdf

page of the transcript.

References to the documents in the supplemental record deemed filed by way

of this Court’s July 15, 2016 supplementation order are made with the abbreviation

“SR” followed by the pdf page of the full supplemental record. The abbreviation

“e.s.” means emphasis supplied.

-ii-

TABLE OF CONTENTS

page numbers

PRELIMINARY STATEMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CITATIONS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

STATEMENT OF THE CASE AND FACTS. . . . . . . . . . . . . . . . . . . . . . . . . . 1-10

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10-11

ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12-25

ARGUMENT

I. IT WAS REVERSIBLE LEGAL ERROR TO CONDUCT POSTFINAL JUDGMENT PROCEEDINGS ON THE OCTOBER 20TH

CONTEMPT ORDER BECAUSE THE FINAL DISSOLUTIONJUDGMENT DID NOT INCORPORATE OR RESERVEJURISDICTION TO ENFORCE IT AND THE ARREARAGEWAS EXTINGUISHED WHEN THE FINAL JUDGMENT ISSUED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-14

A. Guiding Principles and Standard of Review. . . . . . . . . . . . . . . . . . . 11

B. Analysis.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11-14

II. ENTRY OF THE OCTOBER 20TH ORDER GRANTING WIFE’SSEPTEMBER 25TH CONTEMPT MOTION WITHOUT NOTICEOR HEARING ON THE MOTION CONSTITUTES REVERSIBLEDENIAL OF DUE PROCESS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-17

A. Guiding Principles and Standard of Review. . . . . . . . . . . . . . . . . . . 14

B. Analysis.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14-17

III. IT WAS REVERSIBLE ERROR TO ADOPT WIFE’S PROPOSEDORDER VERBATIM WHEN THERE WAS NO HEARING ORNOTICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-19

-iii-

A. Guiding Principles and Standard of Review. . . . . . . . . . . . . . . . . . . 17

B. Analysis.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-19

IV. THE CONTEMPT ORDERS ARE FACIALLY DEFICIENT DUETO THE LACK OF REQUIRED FACTUAL FINDINGS, ANDTHE PURGE CONSISTING OF PAYMENT OF THE FULL$16,000 ARREARAGE AMOUNT WAS ALSO ERROR. . . . . . . . 19-21

A. Guiding Principles and Standard of Review. . . . . . . . . . . . . . . . 19-20

B. Analysis.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20-22

V. MAGISTRATE AND TRIAL COURT BOTH ERRONEOUSLYMISAPPLIED THE LAW IN RULING ON WIFE’S DECEMBER22ND CONTEMPT MOTION AND HER DECEMBER 31ST

COMMITMENT MOTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23-25

A. Guiding Principles and Standard of Review. . . . . . . . . . . . . . . . . . . 23

B. Analysis.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23-25

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

CERTIFICATE OF COMPLIANCE WITH RULE 9.210. . . . . . . . . . . . . . . . . . . 26

TABLE OF CITATIONS

I. Case Authorities: Page

Aylward v. Aylward, 420 So. 2d 660 (Fla. 2nd DCA 1972).. . . . . . . . . . . . . . . . . . . . . 13, 15, 19, 24

Auto Owners Ins. Co. v. Hillsborough County Aviation etc.153 So. 2d 722 (Fla.1963).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Bowen v. Bowen471 So. 2d 1274 (Fla. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Boyd v. Boyd168 So. 3d 302 (Fla. 4th DCA 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

-iv-

Castillo v. Castillo191 So. 3d 481 (Fla. 4th DCA 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 23

Cooter & Gell v. Hartmarx Corp.496 U.S. 384 (1990). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Faircloth v. Faircloth339 So. 2d 650 (Fla 1976).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Garo v. Garo347 So. 2d 418 (Fla.1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

In re Drummond69 So. 3d 1054 (Fla. 2nd DCA 2011).. . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 23

Larsen v. Larsen854 So. 2d 293 (Fla. 4th DCA 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Longmeier v. Longmeier921 So. 2d 8080 (Fla. 1st DCA 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Marty v. Bainter727 So. 2d 1124 (Fla. 1st DCA 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Mayflower Inv. Co. v. Brill188 So. 2d 205 (Fla. 1939). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Perlow v. Berg-Perlow875 So. 2d 383 (Fla. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17-18

Pompey v. Cochran685 So. 2d 1007 (Fla 4th DCA 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Parrot Jungle and Gardens Ltd., Inc. v. Unique Surfacing, LLC970 So. 2d 351 (Fla. 3rd DCA 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Rankin v. Rankin275 So. 2d 283 (Fla. 2nd DCA 1973).. . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 24

River Bridge Corp. v. American Somax Ventures76 So. 3d 986 (Fla. 4th DCA 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Rosen v. Rosen696 So.2d 697 (Fla. 1997).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

-v-

Schuman v. International Consumer Corp.50 So. 3d 75 (Fla. 4th DCA 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17, 18

Scott v. Scott643 So. 2d 1124 (Fla. 4th DCA 1994). . . . . . . . . . . . . . . . . . 13, 14, 15, 19, 24

Sims v. Sims846 So. 2d 1188 (Fla. 4th DCA 2003). . . . . . . . . . . 6, 7, 13, 14, 15, 19, 23, 24

Stockman v. Downs573 So. 2d 835 (Fla. 1991). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Sullivan v. Sullivan 593 So. 2d 1153 (Fla. 4th DCA 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Tobkin v. State777 So. 2d 1160 (Fla. 4th DCA 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

United Auto. Ins. Co. v. Buchalter14 So. 3d 1100 (Fla. 4th DCA 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Vasquez v. Vasquez827 So. 2d 384 (Fla. 4th DCA 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Vaught v. Vaught189 So. 3d 332 (Fla. 4th DCA 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Whitby v. Infinity Radio Inc.961 So. 2d 349 (Fla. 4th DCA 2007). . . . . . . . . . . . . . . . . . . . . 6, 7, 15, 23, 24

II. Statutes, Rules and other Legal Authorities:

Fla. Stat. § 61.16. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Fla. Stat. § 542.335. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

-vi-

STATEMENT OF THE CASE AND FACTS

Nature of the Case:

This appeal arises from post final dissolution judgment enforcement

proceedings on an unpreserved, extinguished temporary support arrearage. Several

contempt and related orders were rendered after the final judgment dissolving the

parties’ 17 year marriage, where the final judgment did not reserve or award the

arrearage that underpins the orders appealed from [R 1334, pdf p. 1339] (e.s.).

Initial Contempt Motion Never Noticed for Hearing

The parties’ final dissolution trial took place over two days on September 29th,

2014 and October 8th, 2014 before the Honorable Krista Marx [R 462, 620 (pdf pp.

498, 657); T1 pp. 1-630].2 Four days before the start of the dissolution trial Wife

filed a contempt motion alleging that Husband failed to pay $16,000 of temporary

support that was ordered by way of the February 26, 2014 temporary relief order (the

“September 25th Contempt Motion”) [R 594-601 (pdf pp. 630-38)].

Notably, that September 25th Contempt Motion was never noticed for hearing.

When the dissolution trial did not conclude on September 29, 2014 the court and

counsel discussed continuation dates to finish the trial [T1 pp. 317-472]. There was

no mention of the September 25th Contempt Motion being part of the continued

dissolution trial [Id.]. The September 25th Contempt Motion was not included in the

2 The Honorable Amy Smith presided over the case for its first two years,and heard most pretrial matters. The Honorable Krista Marx took over in August,2014 following Judge Smith’s sua sponte recusal [R 457 (pdf p. 493)]. Some timefollowing the dissolution trial, this case was assigned to the Honorable John L.Phillips, who entered the post final judgment orders on appeal.

1

Order setting the continued trial to October 8, 2014 [R 620 (pdf p. 657)]. Further,

the September 25th Contempt Motion was not otherwise separately noticed for any

hearing. Nevertheless, on October 20, 2014 without any hearing or notice, the court

granted Wife’s September 25th Contempt Motion (the “October 20th Contempt Order”)

[R 690 (pdf. p. 727)].

The Dissolution Trial and Court’s Refusal to Hear Support Arrearages at Trial

The October 20th Contempt Order was entered ten days before the FDJ. It

erroneously states that the court heard testimony and argument of counsel on the

motion during the October 8, 2014 dissolution trial day [R 690 (pdf. p. 727)] (e.s.).

The trial transcripts reflect no presentation of the September 25th Contempt Motion

to the court or argument of counsel on that motion during either dissolution trial day

[T1 pp. 1-592]. Although there were four questions by Wife’s counsel during the

October 8th trial day about Husband’s purported non-payment of $2,000 monthly

temporary support, there was no mention that these questions were elicited as

argument on the September 25th Contempt Motion [T1 pdf p. 541, 551]. There was

no other manner of presentation of that September 25th Contempt Motion to the court

or legal argument of any kind on that motion on either trial day [Id.].

To the contrary, when Wife attempted to enter a transcript of the temporary

support hearing into evidence on the first trial day, the court sustained Husband’s

objection, and denied entry of that transcript into evidence in toto [T1 pdf pp. 41-42].

Later on in the trial, during Husband’s direct testimony, his counsel asked Husband

about his rehearing motion on the temporary support order [T1 pdf pp. 422-25].

2

Judge Marx cut that line of questioning off entirely, and expressly declined to

consider temporary support or rehearing of same, stating that she was having a final

divorce hearing, not rehearing [Id.].

Trial Court Signs Proposed Contempt Order Verbatim

At the end of the October 8th dissolution trial day, the court directed both

parties’ counsel to submit a written closing argument and proposed final judgment on

the dissolution trial [T1 pdf pp. 588-89]. The court made no mention of the

September 25th Contempt Motion, or any oral pronouncement of its conclusions about

the September 25th Contempt Motion. Wife’s counsel went further than the court’s

instructions. Her counsel submitted both a proposed final dissolution judgment and

a proposed order granting her September 25th Contempt Motion [SR-1 pdf pp. 4-39,

63] (e.s.).

Even though there was no hearing on the September 25th Contempt Motion, the

Court signed the proposed October 20th Contempt Order submitted by Wife’s counsel

verbatim, with no opportunity for comment by Husband’s counsel [SR-1 pdf pp. 4,

63]. It finds that Husband had the ability to pay $16,000 of support during the

pendency of the temporary relief order, but failed to do so [Id.; R 690 (pdf. p. 727)].

It also ordered Husband to pay the full $16,000 arrearage within 60 days to purge the

contempt, even though the September 25th Contempt Motion was never heard or

noticed for any hearing [Id.]. Notably, the October 20th Contempt Order does not find

that Husband has the present ability to pay the purge amount, nor are there any other

factual findings in the Order [Id.] (e.s.).

3

FDJ and AFDJ Do Not Award Temporary Support Arrearages, orIncorporate or Reserve Jurisdiction to Enforce Temporary Support

Arrearages

Ten days later, on October 30th, 2014, the Final Judgement of Dissolution of

Marriage (“FDJ”) was entered [R 694-736 (pdf pp. 731-773)]. There is no mention

of the October 20th Contempt Order, Wife’s September 25th Contempt Motion or any

unpaid temporary support or arrearage in the FDJ [Id.].

Both parties moved for rehearing [R 737-49, 750-837 (pdf pp. 774-86, 787-

875)]. Wife’s rehearing motion did not mention the October 20th Contempt Order, her

September 25th Contempt Motion or any unpaid temporary support. Her rehearing

motion did not request that the FDJ incorporate the October 20th Contempt Order [R

737-49 (pdf pp. 774-86); T1 pp. 638-639].

On November 20, 2014 the court granted each party’s rehearing motion in part,

and amended the FDJ without a hearing [R 838-39, 840-80 (pdf pp. 876-77, 878-

918)]. The rehearing order and the Amended Final Judgment of Dissolution of

Marriage (“AFDJ”), make no mention of the October 20th Contempt Order, Wife’s

September 25th Contempt Motion, any temporary support or any support arrearage

[Id.]. Likewise, the AFDJ does not incorporate or reserve jurisdiction to enforce the

October 20th Contempt Order, any temporary support or any support arrearage [R 840-

80 (pdf pp. 878-918)].

Wife’s Post Final Judgment Contempt and Commitment Motions

About a month after entry of the AFDJ, Wife again moved for contempt

(“December 22nd Contempt Motion”) [R 1069-71 (pdf pp. 1108-10)] (e.s.). This time

4

Wife alleged that Husband failed to pay the purge amount specified in the October

20th Contempt Order and, therefore, should be held in contempt [Id.].

Nine days later, on December 31st, 2014 Wife filed her Verified Affidavit of

Non Compliance and Motion for Commitment (“Commitment Motion”) [R 1078-81].

The allegations of Wife’s Commitment Motion are identical to those of her December

22nd Contempt Motion, except this time Wife added a request for Husband’s

commitment in her prayer for relief [Id. p. 1079 (pdf p. 1118)]. Husband objected to

the December 22nd Contempt Motion and the Commitment Motion, and moved to

strike both of them (“Objection to Wife’s Commitment Motion”) [R 1084-86, pdf pp.

1123-25].

Magistrate’s Hearing on Wife’s Contempt and Commitment Motions, andHusband’s Objection and Motion to Strike those Motions

Wife’s December 22nd Contempt Motion and Commitment Motion were

referred to Magistrate Thomas R. Baker for hearing [R 1082-83 (pdf pp. 1121-22);

R 1090-91 (pdf pp. 1130-31)]. Husband’s Objection to Wife’s Commitment Motion

was also referred to Magistrate Baker [R 1160-62 (pdf pp. 1199-1201)]. The

Magistrate’s hearing took place on February 13, 2015 [R 1087-89 (pdf pp. 1126-28)].

Husband asserted the lack of jurisdiction to hear Wife’s December 22nd Contempt

Motion and Commitment Motion because both are expressly based on the October

20th Contempt Order, and neither the FDJ nor AFDJ incorporate or reserve

jurisdiction to enforce the October 20th Contempt Order or the temporary support

arrearage, which was extinguished by operation of law [R 1084-86 ¶¶3-4 (pdf pp.

1123-25 ¶¶3-4 ); T1 pdf pp. 638-40]. Given that the September 25th Contempt

5

Motion was not raised at the final dissolution trial, and the October 20th Contempt

Order was not incorporated into the FDJ or AFDJ, Husband argued that under Sims

v. Sims, 846 So. 2d 1188 (Fla. 4th DCA 2003), the court lacked jurisdiction to enforce

the October 20th Contempt Order in any post-judgment proceeding [T1 pp. 638-40].

Circumventing the legal prohibition against enforcing a nonexistent arrearage,

Wife erroneously asserted that Sims is inapplicable because her September 25th

Contempt Motion was set for hearing and heard at the October 8th dissolution trial

[T1 pdf p. 641] (e.s.). Wife’s counsel then implicitly conceded that the FDJ and

AFDJ did not incorporate or reserve jurisdiction to enforce the October 20th Contempt

Order and the temporary support arrearage by claiming that the court intentionally did

not include a reservation of jurisdiction to enforce the arrearage in the FDJ or AFDJ

[Id. p. 643] (e.s.). Wife’s counsel then argued that the court nevertheless had

jurisdiction to enforce the October 20th Contempt Order under Whitby v. Infinity

Radio Inc., 961 So. 2d 349 (Fla. 4th DCA 2007) (citing Tobkin v. State, 777 So. 2d

1160 (Fla. 4th DCA 2001) and Cooter & Gell v. Hartmarx Corp., 496 U.S. 384

(1990)), because the September 25th Contempt Motion was (purportedly) argued at

the final dissolution trial [T1 pdf pp. 641-43].

Yet, nowhere in the transcript of the two day dissolution trial did Wife’s

counsel argue or present her September 25th Contempt Motion to the trial court [T1

pdf pp. 1-592]. Nevertheless, even though there was no argument or presentation of

the September 25th Contempt Motion, and the court expressly declined to consider the

temporary support arrearage at the dissolution trial, after a short break to review the

6

case law submitted by each party, Magistrate Baker rejected Sims, and decided that

Whitby controls [T1 pp. 644-45]. The Magistrate found that jurisdiction existed to

consider and rule on a motion to enforce an interlocutory contempt order after entry

of the final judgment – even though the final judgment failed to retain jurisdiction to

do so and the matter was not brought up at the dissolution trial [T1 pp. 644-45].

Magistrate Baker then orally denied Husband’s Objection to Commitment Motion and

proceeded to take evidence on the December 22nd Contempt Motion and Commitment

Motion [T1 pp. 644-45; R 1177-82 (pdf pp. 1216-21)].

Magistrate Baker reserved ruling and gave Wife’s counsel the option to prepare

a proposed recommended order and a template from which to do so [T1 pp. 693-94]

(e.s.). Even so, Magistrate Baker did not announce any findings and conclusions on

the record that were to form the basis for the proposed recommended order [Id.].

Magistrate Baker entered Wife’s proposed recommended order verbatim immediately

upon receipt of same from Wife’s counsel (“Magistrate’s Recommended Order”) [R

1355-58 ¶5 (pdf pp. 1395-98 ¶5); R 690 (pdf p. 727); SR-1 p. 63]. The Magistrate’s

Recommended Order denies Husband’s objection and motion to strike, and grants

Wife’s December 22nd Contempt Motion and her Commitment Motion [Id.]. Husband

was given no opportunity for comments or objections to Wife’s proposed

Recommended Order [Id.] (e.s.).

Husband’s Exceptions to Magistrate’s Report and Recommendations

Husband timely filed exceptions to the Magistrate’s Recommended Order,

alleging lack of jurisdiction because the September 25th Contempt Motion was not

7

heard at the final dissolution trial and neither the FDJ nor AFDJ awarded the alleged

temporary support arrearage or reserved jurisdiction to consider temporary support

arrearages or the October 20th Contempt Order3 [R 1184 ¶1 (pdf p. 1223 ¶1) R 1188-

1191, 1355-58 (pdf pp. 1227-30, 1395-98)]. Husband further alleged that (i) unless

jurisdiction over interlocutory orders is reserved in the final judgment, all

interlocutory orders merge into the final judgment, are thereby extinguished and loose

any further separate identity; (ii) the October 20th Order is facially deficient because

it is devoid of necessary factual findings, (iii) Husband’s assets from which to pay the

purge amount are insufficient; (iv) Husband is unable to pay, and Wife has no need

for, attorney’s fees; (v) Husband’s failure to pay the purge amount specified in the

October 20th Contempt Order was due to legal and factual ambiguity created by the

complete absence of any factual basis or findings in the October 20th Contempt Order;

and (vi) Magistrate entered Wife’s proposed recommended order verbatim

immediately upon receipt, with no opportunity for comment by Husband’s counsel

[Id.; T1 pp. 702-706].

The Exceptions Hearing and Orders Thereon

Husband’s exceptions were heard on October 8, 2015 before the Honorable

John L. Phillips [T1 698-717]. Judge Phillips denied Husband’s exceptions, and

accepted the Magistrate’s Recommended Order in toto [R 1454 (pdf p. 1495)]. Judge

Phillips also entered a separate order dated October 9, 2015 granting Wife’s

3 The temporary support arrearage underpins the October 20th ContemptOrder, which in turn underpins the orders on appeal here, but both wereextinguished upon entry of the AFDJ or merged into the AFDJ as a matter of law.

8

Commitment Motion, Overruling Husband’s Objection and Denying his Motion to

Strike [R 1161-62 (pdf pp. 1502-1503)] (the “Order Granting Wife’s Commitment

Motion”). Judge Phillips further awarded Wife a monetary judgment in the amount

of $16,000 for the (extinguished) temporary support arrearage, plus interest from

December 19, 2014 and $1,387.50 of attorney’s fees [Id.].

The Order Granting Wife’s Commitment Motion (erroneously) found that a

hearing on Wife's September 25th Contempt Motion took place during the final

dissolution trial [R 1458 (pdf p. 1499)]. Judge Phillips also entered a writ of bodily

attachment and amended writ of bodily attachment on October 9th, 2015 (collectively

the “Writ of Bodily Attachment”) directing the Palm Beach County Sheriff to arrest

Husband and bring him before the court for hearing to determine his ability to pay the

monetary judgment [R 1464-65 (pdf pp. 1505-1506)]. Husband’s first appearance did

not take place until October 21, 2015 [R 1546 (pdf p. 1587)]. At the first

appearance, Husband was returned to the county jail and brought back to court on

October 22nd, 2015 for further hearing on his first appearance [Id.].

The court set a purge of the Writ of Bodily Attachment at the full $16,000

temporary support sum awarded to Wife in the October 20th Contempt Order (even

though not awarded at all in the FDJ or AFDJ) [Id. p. 1465 (pdf p. 1506)]. Husband

challenged his financial ability to satisfy the full $16,000 purge sum, and the court

set a half hour evidentiary hearing for October 27th, 2015 [R 1547 ¶1 (pdf p. 1588

¶1)]. Thus, Husband spent about 10 days in the county jail awaiting the October 27th

evidentiary hearing on his financial ability to satisfy the purge.

9

Following that October 27th hearing, the court reduced the purge amount to

$4,500, found Husband has the present financial ability to pay that sum and entered

a monetary judgment of $11,500 against Husband for the balance of the $16,000

awarded to Wife in the October 9th Order granting her Commitment Motion [R 1566-

67 (pdf pp. 1607-1608)].

Husband Appeals All Contempt Related Orders

Husband timely appealed (a) the Order Granting Wife’s Commitment Motion;

(b) the October 9th Order Denying Husband’s Exceptions to the Magistrate’s

Recommended Order (“Order Denying Husband’s Exceptions”); (c) the Writ of

Bodily Attachment; (d) the October 27th First Appearance Order (“First Appearance

Order”) and (e) the First Appearance and Monetary Judgment dated October 28th,

2015 (“October 28th Monetary Judgment”) [R 1571-84 (pdf pp. 1612-25)]. Each

order is predicated upon the October 20th Contempt Order and the Magistrate’s

Recommended Order, which are necessary steps leading up to their entry and are part

of the electronic record brought forward for review by this Court [R 690, 1177-83].

SUMMARY OF THE ARGUMENT

It is well settled law that unpaid temporary support arrearages cannot be

enforced in post-judgment proceedings, unless the arrearage order is incorporated in

the final judgment. It is also well settled that interlocutory orders merge into, and are

extinguished upon entry of, the final judgment, unless expressly incorporated in or

enforcement jurisdiction is reserved in the final judgment. That is not the case here.

The arrearage here was extinguished as a matter of law upon entry of the FDJ, when

10

it was not incorporated therein. That being so, there is no basis for contempt, let

alone commitment to jail. All post final judgment contempt related orders arising

from the October 20th Contempt Order or the extinguished temporary support

arrearage included therein must be reversed.

Should this Court need to read any further, a discussion of the remaining

harmful procedural errors and deficiencies that require reversal follow.

Wife’s September 25th Contempt Motion was never noticed for hearing or

actually heard. Both the October 20th Order granting that motion and the Magistrate’s

Recommended Order on Wife’s Commitment Motion were prepared by Wife’s

counsel, and signed verbatim immediately upon submission, without opportunity by

Husband’s counsel to comment on either submission. Consequently, Husband was

denied due process.

Since the Magistrate’s Recommended Order, the Order Granting Wife’s

Commitment Motion, the Order Denying Husband’s Exceptions, the Writ of Bodily

Attachment, the First Appearance Order and the October 28th Monetary Judgment are

all post final judgment proceedings predicated on the October 20th Contempt Order,

both the court and magistrate were without jurisdiction to enter those orders and they,

too, must all be reversed.

Even if this Court finds the arrearage was not extinguished, the interlocutory

October 20th Contempt Order is devoid of the required findings that Husband wilfully

failed to pay the temporary support and has the present ability to pay any purge

amount. Accordingly, reversal is required.

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ARGUMENT

I. IT WAS REVERSIBLE LEGAL ERROR TO CONDUCT POST FINALJUDGMENT PROCEEDINGS ON THE OCTOBER 20TH CONTEMPTORDER BECAUSE THE FINAL DISSOLUTION JUDGMENT DID NOTINCORPORATE OR RESERVE JURISDICTION TO ENFORCE ITAND THE ARREARAGE WAS EXTINGUISHED WHEN THE FINALJUDGMENT ISSUED

A. Guiding Principles and Standard of Review:

This Court’s review of whether the magistrate or trial judge applied the correct

law is de novo. E.g., In re Drummond, 69 So. 3d 1054, 1057 (Fla. 2nd DCA 2011);

Castillo v. Castillo, 191 So. 3d 481(Fla. 4th DCA 2016). A trial court's decision to

accept or reject a magistrate's conclusions is reviewed for an abuse of discretion.

Boyd v. Boyd, 168 So. 3d 302 (Fla. 4th DCA 2015). A magistrate’s findings are

subject to being vacated when clearly erroneous or when the magistrate misconceived

the legal effect of evidence. Id. at 304. An appeal from a final judgment brings up

for review all interlocutory orders rendered before the final judgment that are part of

the electronic record brought forward for review as a necessary step in the proceeding

leading up to the final judgment. E.g., United Auto. Ins. Co. v. Buchalter, 14 So. 3d

1100 (Fla. 4th DCA 2009) (citing Auto Owners Ins. Co. v. Hillsborough County

Aviation Authority for Use & Benefit of Gen. Elec. Supply Co., 153 So. 2d 722, 724

(Fla.1963)).

B. Analysis:

It is well settled that if a final judgment does not incorporate or reserve

jurisdiction to enforce a temporary support award, the temporary support arrearage

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cannot be enforced after the final dissolution judgment is rendered. See, e.g., Sims,

846 So. 2d at 1188 (if provision for payment of temporary support arrearage not

incorporated into final judgment, trial court cannot enforce such arrearage in post-

judgment proceedings); see, also, Aylward v. Aylward, 420 So. 2d 660, 661 (Fla. 2nd

DCA 1972) (e.s.). Accumulated arrearages on temporary support orders must be

brought up at the final hearing so that the trial court can fix the amount of any

prejudgment arrearage and, if necessary, make an appropriate adjustment in the

distribution of assets and liabilities in the final judgment to account for the arrearage.

Sims, 846 So. 2d at 1188; Alyward, 420 So. 2d at 661 (temporary support husband

failed to pay before entry of final judgment has to be brought up at final hearing).

When the court does not incorporate or reserve jurisdiction to enforce a temporary

support arrearage in the final judgment, the arrearage is extinguished and the court

lacks authority to enforce the temporary support order. See Rankin v. Rankin, 275

So. 2d 283, 284 (Fla. 2nd DCA 1973); Scott v. Scott, 643 So. 2d 1124 (Fla. 4th DCA

1994) (trial court lacks authority to enforce interlocutory order awarding wife costs

if not incorporated or reserved in final judgment).

Here, neither the FDJ nor the AFDJ incorporates or reserves jurisdiction to

enforce the February 26, 2014 temporary support order, the October 20th Contempt

Order or the temporary support arrearage on which the October 20th Contempt Order

is based. In fact, Wife’s counsel argued below that the court intentionally did not

reserve jurisdiction to enforce the October 20th Contempt Order in the FDJ or AFDJ

[Id. p. 643] (e.s.). Accordingly, absent reservation of jurisdiction or incorporation of

13

the support arrearage in the FDJ or AFDJ, there was no authority to enforce the

temporary support arrearage after this FDJ and AFDJ issued. Reversal is plainly

required. Rankin, Scott, Sims. If extinguished temporary support arrearages cannot

be enforced in post final judgment proceedings, then plainly there is no basis for

holding Husband in contempt for non-payment of those nonexistent arrearages.

Reversal is required.

Should this Court need to read any further, the procedural irregularities that

took place in the unauthorized post final judgment enforcement proceedings are

addressed below.

II. ENTRY OF THE OCTOBER 20TH ORDER GRANTING WIFE’SSEPTEMBER 25TH CONTEMPT ORDER WITHOUT NOTICE ORHEARING ON THE MOTION CONSTITUTES REVERSIBLE DENIALOF DUE PROCESS

A. Standard of Review:

Denial of due process is reviewed de novo. Vaught v. Vaught, 189 So. 3d 332

(Fla. 4th DCA 2016).

B. Analysis:

Here, the temporary support order was entered on February 25, 2014 [R 140-

42, pdf pp. 174-76]. Wife moved for contempt four days before the September 29th

2014 start of the final dissolution trial, alleging nonpayment of temporary support [R

594-601 (pdf pp. 630-38)]. There is no notice of hearing or order setting that

September 25th Contempt Motion for hearing. The October 20th Contempt Order

erroneously states that testimony and legal argument on the September 25th Contempt

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Motion was heard during the October 8, 2014 trial day [R 690 (pdf p. 727)]. There

is no testimony or legal argument on the September 25th Contempt Motion anywhere

in the transcript of either dissolution trial day [T1 pp. 1-592]. Although there were

four questions regarding Husband’s purported non-payment of $2,000 monthly

temporary support, there was no mention that this testimony was elicited in

connection with Wife’s September 25th Contempt Motion [T1 pdf p. 541, 551].

Moreover, when Husband’s counsel brought up rehearing on the temporary support

order, Judge Marx cut off that line of questioning, stating that the parties were in

court for the final dissolution trial, not rehearing [T1 pp. 422-25].

This Case Involves an Extinguished Arrearage

Wife’s contention below that her contempt motion was set for hearing and

argued at the dissolution trial is inaccurate at best [T1 p. 641]. Consequently, the

magistrate’s and trial court’s reliance on Whitby was misplaced. The contempt in

Whitby was first denied, then reversed on appeal and a full evidentiary hearing

occurred on remand. Id. at 352. That is not the procedural posture of this case.

Whitby is inapplicable to the posture of this case, since there was no notice of hearing

let alone argument on the September 25th Contempt Motion. Further, Whitby is not

a marital dissolution case. It involves a temporary injunction under Fla. Stat. §

542.335 for violating a non-compete covenant. Id., 961 So. 2d at 351. That is not the

case here, since all contempt proceedings took place after the AFDJ.

In the marital dissolution setting, Sims, Scott and Aylward control. Unlike

Whitby, here there is no temporary injunction, no covenant not to compete and Fla.

15

Stat. § 542.335 is not applicable. Further, the October 20th Contempt Order does not

find Husband to be in indirect civil contempt or that he “wilfully and intentionally”

violated the temporary support order. Rather, it simply grants Wife’s September 25th

Contempt Motion, without any factual findings whatsoever [R 690 (pdf p. 727)] (e.s.).

Moreover, the October 20th Contempt Order does not find that Husband has the

present ability to pay any purge amount [Id.] (e.s.).

The October 20th Contempt Order also states that the September 25th Contempt

Motion came before the court at the October 8th, 2014 trial [R 690 (pdf p. 727)]. Not

so. Nowhere in the transcript of that day’s proceedings is there any presentation of

the September 25th Contempt Motion to the court or argument of counsel on that

Motion [T1 pp. 351-592]. When the dissolution trial was not completed on

September 29th 2014, the court discussed alternate dates for continuation of the trial

with both party’s counsel [T1 pp. 317-50]. Nowhere in that discussion was the matter

of any hearing on Wife’s September 25th Contempt Motion brought up [Id.]. The

court entered an order on September 30th, 2014 setting the continuation of the final

dissolution trial for October 8th, 2014 [R 620 (pdf p. 657)]. Likewise, that order

makes no mention of the September 25th Contempt Motion or that it would be heard

at the October 8th continuation of the final dissolution trial [Id.].4

Despite these procedural flaws and legal errors, on October 20th, 2014 the court

4 The first time there was any notice or hearing on Husband’s purportedfailure to pay the temporary support was the order setting a February 13th, 2015hearing on Wife’s Commitment Motion, well after the AFDJ issued [R 1087-88(pdf pp. 1126-27)].

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entered Wife’s proposed order granting the September 25th Contempt Motion

verbatim [R 690 (pdf p. 727); SR-1 p. 63]. That was reversible error, because entry

of the proposed October 20th Contempt Order verbatim without notice or hearing

constitutes a denial of due process. Mayflower Inv. Co. v. Brill, 188 So. 205 (Fla.

1939) (due process guarantees notice and opportunity to be heard before rights are

taken away by order, decree or judgment of any court); Schuman v. International

Consumer Corp., 50 So. 3d 75, 76-77 (Fla. 4th DCA 2010) (due process requires fair

notice and real opportunity to be heard and defend in orderly procedure before

judgment rendered). Reversal is required.

III. IT WAS REVERSIBLE ERROR TO ADOPT WIFE’S PROPOSEDORDER VERBATIM WHEN THERE WAS NO HEARING OR NOTICE

A. Standard of Review:

Abuse of discretion applies to verbatim adoption of a proposed final judgment

without announcing findings or conclusions on the record that would form the basis

for the proposed final judgment. Perlow v. Berg-Perlow, 875 So. 2d 383 (Fla. 2004).

B. Analysis:

At the end of the October 8th dissolution trial day, the court directed both

parties’ counsel to submit a written closing argument and proposed final judgment on

the dissolution trial [T1 pdf pp. 588-89]. The court made no mention of the

September 25th Contempt Motion, nor any oral pronouncement of its conclusions

about the September 25th Contempt Motion. Wife’s counsel went further than the

court’s instructions. Her counsel submitted both a proposed final dissolution

17

judgment and a proposed order granting her September 25th Contempt Motion [SR-1

pdf pp. 4, 63] (e.s.).

Wife’s proposed order granting the September 25th Contempt Motion was

adopted and signed verbatim immediately upon submission by Wife, even though

there was no notice, hearing or argument of counsel on that motion [R 690, SR-1 pdf

p. 63; R 1356-58 ¶5 (pdf pp. 1395-98 ¶5)]. Husband had no opportunity to comment

on the proposed order granting the September 25th Contempt Motion. That is

reversible error. Schuman, 50 So. 3d at 76-77; Perlow, 875 So. 2d at 389-90

(verbatim adoption of proposed final judgment is reversible error). This is especially

true when, as here, the judge has made no findings or conclusions on the record that

would form the basis for the party's proposed final judgment and Husband had no

opportunity to comment before entry of the order. Id. at 390. Similarly, Magistrate

Baker entered Wife’s proposed report and recommendations verbatim immediately

upon it’s submission by Wife’s counsel, with no opportunity for Husband to comment

on it, and no findings or conclusions on the record as the basis for the proposed order.

That, too, is reversible error. Id.

Further, the October 20th Contempt Order is the predicate for and a necessary

step in the proceedings leading up to the hearing on Wife’s (next) December 22nd

Contempt Motion and her December 31st Commitment Motion. The December 22nd

Contempt Motion and the Commitment Motion both seek to enforce the October 20th

Contempt Order. Yet neither the purported temporary support arrearage nor the

October 20th Contempt Order are incorporated into the FDJ or AFDJ. Consequently,

18

as a matter of law there was no jurisdiction to conduct the post-final judgment

proceedings to enforce the October 20th Contempt Order, the February 13th 2015

magistrate hearing, the October 8th, 2015 or the October 27th, 2015 commitment

hearings [R 1084-86 (pdf pp. 1123-25); T1 pp. 637-41; R 1184-86 (pdf pp. 1223-

25)]. Sims, Scott, Aylward.

Absent jurisdiction to enforce the Temporary Support Order, or the

interlocutory October 20th Contempt Order after entry of the AFDJ, the Magistrate’s

Recommended Order, the Order Granting Wife’s Commitment Motion, the October

27th First Appearance, the October 28th Monetary Judgment and the Writ of Bodily

Attachment are all impermissible efforts to enforce the interlocutory October 20th

Contempt Order. Plainly, there was no jurisdiction to enter any of these post final

judgment orders, or to hold Husband in county jail for 10 days for noncompliance

with them.

Consequently, reversal is required.

IV. THE CONTEMPT ORDERS ARE FATALLY DEFICIENT DUE TOTHE LACK OF REQUIRED FACTUAL FINDINGS, AND THE PURGECONSISTING OF PAYMENT OF THE FULL $16,000 ARREARAGEAMOUNT WAS ALSO ERROR

A. Guiding Principles and Standard of Review:

An order finding a party in contempt must contain a finding that the alleged

contemnor failed to pay part or all of the support ordered, has the present ability to

pay support, willfully failed to comply with the prior court order, and must also

contain a recital of the facts on which these findings are based. Rule 12.615(d)(1)

19

(e.s.). Failure to contain a recital of these facts is legal error requiring reversal. See,

e.g., Vasquez v. Vasquez, 827 So. 2d 384 (Fla. 4th DCA 2002).

A contempt order that imposes incarceration as a contempt sanction for failure

to comply with a support order must contain separate affirmative findings that a prior

order of support was entered, and that the alleged contemnor failed to pay part or all

of the support ordered, had the present ability to pay support, and willfully failed to

comply with the prior court order. Napoli v. Napoli, 142 So. 3d 953, 955 (Fla. 4th

DCA 2014). The order must also contain a recital of the facts on which these findings

are based. Id.; Faircloth v. Faircloth, 339 So. 2d 650 (Fla. 1976) (contempt order

must make affirmative findings either that contemnor has present ability to comply

and willfully refuses to do so, or that he previously had ability to comply, but divested

himself of that ability through fault or neglect designed to frustrate intent and purpose

of order); Bowen v. Bowen, 471 So. 2d 1274 (Fla. 1985); Pompey v. Cochran, 685

So. 2d 1007 (Fla. 4th DCA 1997); Larsen v. Larsen, 854 So 2d 293 (Fla. 4th DCA

2003) [R 1184-86 (pdf pp. 1223-25)]. A contempt order that lacks specific findings

as to present ability to pay, willful failure to do so and recital of the facts on which

these findings are based is fatally defective. Garo v. Garo, 347 So. 2d 418 (Fla.

1977) (e.s.).

B. Analysis:

Wife’s December 22nd Contempt Motion and her Commitment Motion both

allege Husband failed to purge the contempt specified in the October 20th Contempt

Order, which required him to pay the full $16,000 temporary support arrearage in one

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lump sum within 60 days to purge the contempt [R 690 (pdf p. 727); R 1069-70,

1078-79 (pdf pp. 1108-1109, 1117-1118]. However, the October 20th Contempt

Order did not find that Husband has the present ability to pay the full $16,000

arrearage in one lump sum [R 690 (pdf p. 727)] (e.s.).

Moreover, Magistrate Baker recommended that Husband be held in contempt

and incarcerated for not paying the full $16,000 arrearage in one lump sum [R 1177-

1183 ¶¶V, W (pdf pp. 1216-1222 ¶¶V, W)]. The trial court adopted the Magistrate

Recommended Order [R 1454 (pdf p. 1495)]. The separate October 9th, 2015 Order

Granting Wife’s Commitment Motion, which orders Husband to be incarcerated for

failing to comply with the October 20th Contempt Order, had an identical purge

provision stating that Husband must pay the full $16,000 arrearage in one lump sum

to purge the contempt [R 1461 ¶W]. However, the October 9th Order did not state or

make any findings that Husband has the present ability to pay the full purge amount

[Id.]. Accordingly, it must be reversed. Napoli.

The court also issued its Writ of Bodily Attachment stating, in pertinent part,

that the writ may be cancelled if Husband paid the full $16,000 arrearage in one lump

sum [R 1465-66 (pdf p. 1505-06]. It too failed to make any findings that Husband

has the present ability to pay the full $16,000 (extinguished) temporary support

arrearage in one lump sum to purge the writ [Id.].

Consequently, the October 20th Contempt Order, the Magistrate’s

Recommended Order, the Order Granting Wife’s Commitment Motion, Order

Denying Husband’s Exceptions, Writ of Bodily Attachment, First Appearance Order

21

and October 28th Monetary Judgment must all be reversed, as all require payment of

the extinguished $16,000 lump sum to purge the contempt adjudication and had no

findings that Husband has the present ability to comply with that purge requirement.

Napoli; Sullivan v. Sullivan, 593 So. 2d 1153 (Fla. 4th DCA 1992) (provision

requiring husband to pay full amount of arrearage to purge contempt is reversible

error, and tantamount to no purge at all).

Further, neither Wife’s December 22nd Motion for Contempt nor her

Commitment Motion contain any recital of the legal basis for her request for

attorney’s fees. Consequently, the $1,387.50 attorney’s fee award in the Order

Granting Wife’s Commitment Motion must also be reversed [R 1461-62 (pdf p. 1503-

04)]. E.g., Stockman v. Downs, 573 So. 2d 835 (Fla. 1991) (failure to plead basis for

fee entitlement constitutes waiver); Longmeier v. Longmeier, 921 So. 2d 808, 809

(Fla. 1st DCA 2006) (fee entitlement under § 61.16 must be specifically pled). Nor

did the court or the Magistrate’s Recommended Order find Husband had the ability

to pay and Wife had a need for attorney’s fees. Further, Husband’s exceptions were

not frivolous, spurious or brought primarily to harass Wife, but instead were based

on the reasoned belief that applicable law precludes enforcement of an interlocutory

contempt order based on temporary support that is not incorporated into the final

judgment, especially where there is complete lack of factual basis for contempt stated

in the October 20th Order. As a result, the $1,387.50 attorney’s fee award contained

in the Order Granting Wife’s Commitment Motion must be reversed. See Rosen v.

Rosen, 696 So.2d 697, 701 (Fla. 1997).

22

V. MAGISTRATE AND TRIAL COURT BOTH ERRONEOUSLYMISAPPLIED THE LAW IN RULING ON WIFE’S DECEMBER 22ND

CONTEMPT MOTION AND HER DECEMBER 31ST COMMITMENTMOTION

A. Standard of Review:

An appellate court’s review of a whether a magistrate or trial judge applied the

correct law is de novo. E.g., Drummond; Castillo.

B. Analysis:

At the February 13, 2015 hearing on Wife’s Commitment Motion, it was error

for the Magistrate to reject Sims as controlling, and accept Whitby to permit

enforcement of the October 20th Contempt Order post final judgment. This is so

because neither that Order nor the unpaid temporary support referred to therein was

incorporated into the FDJ or AFDJ. It was also error for the trial court to adopt the

Magistrate’s erroneous legal conclusions. Husband’s exceptions to Magistrate

Baker’s report and recommendation contending that the magistrate misinterpreted

Sims and Whitby should have been sustained and granted [R 1184-86 (pdf pp. 1223-

25)]. Further, as the October 20th Order was completely devoid of any findings or

recital of facts on which to base Husband’s present ability to pay the purge, it is

legally deficient [Id.].

Wife’s post FDJ Motions for Contempt and for Commitment both sought to

enforce the October 20th Contempt Order by holding Husband in further contempt and

commitment to jail for his alleged failure to pay the $16,000 lump sum purge amount

required by the October 20th Contempt Order [R 1078-81 (pdf pp. 1117-20)].

23

Consequently, proceedings on the December 22nd Contempt Motion and Wife’s

Commitment Motion are post judgment proceedings to enforce the pre-final judgment

contempt order for failure to pay temporary support. Since the FDJ and AFDJ both

fail to incorporate or reserve jurisdiction to enforce either the October 20th Contempt

Order or the temporary support arrearage on which that order is based, the court and

magistrate lost jurisdiction to enforce either order under Sims, Aylward, Rankin and

Scott once the FDJ and AFDJ were entered.

The trial court erroneously denied Husband’s exceptions to the Magistrate’s

Recommended Order, and erroneously accepted and approved the Recommended

Order (which erroneously holds that Whitby controls) [R 1454 (pdf p. 1495)]. Unlike

Whitby, the October 20th Contempt Order was entered without notice or hearing.

Instead, when Husband’s counsel asked Husband about his rehearing motion on the

temporary support order Judge Marx cut that line of questioning off entirely, and

expressly declined to consider temporary support or rehearing of same, stating that

she was having a final divorce hearing, not rehearing [T1 422-25]. Thus, Sims

controls here, and the court and magistrate lost jurisdiction to enforce the pre-final

judgment temporary support arrearage once the FDJ and AFDJ were entered without

incorporating or reserving jurisdiction to enforce the temporary support arrearage.

The temporary support arrearage was extinguished by operation of law. Rankin.

The October 20th Contempt Order is the predicate and necessary step to entry

of the post final judgment Magistrate’s Report and Recommendations, as well as the

trial court’s Order Granting Wife’s Commitment Motion, Order Denying Husband’s

24

Exceptions, Writ of Bodily Attachment, First Appearance Order and October 28th

Monetary Judgment. As such, the October 20th Contempt Order and subsequent

Magistrate’s Report and Recommendations, as well as the trial court’s post final

judgment Order Granting Wife’s Commitment Motion, Order Denying Husband’s

Exceptions, Writ of Bodily Attachment, First Appearance Order and October 28th

Monetary Judgment must also be reversed. See, e.g., Parrot Jungle and Gardens

Ltd., Inc. v. Unique Surfacing, LLC, 970 So. 2d 351 (Fla. 3rd DCA 2007); Marty v.

Bainter, 727 So. 2d 1124 (Fla. 1st DCA 1999); River Bridge Corp. v. American

Somax Ventures, 76 So. 3d 986 (Fla. 4th DCA 2011) (where underlying judgment on

which attorney fees predicated reversed, attorney fee judgment must be reversed too).

Reversal is required.

CONCLUSION

For the foregoing reasons, Wife respectfully asks for reversal of the October

20th Contempt Order, Magistrate’s Report and Recommendations, the Order Granting

Wife’s Commitment Motion, Order Denying Husband’s Exceptions, Writ of Bodily

Attachment, First Appearance Order and October 28th Monetary Judgment. In

addition, Wife should be ordered to repay any purge payment, as well as the

attorney’s fee award, with interest.

Respectfully submitted,

BRADY & BRADY, P.A.Appellate counsel for Husband1200 N. Federal Hwy., Suite 200Boca Raton, FL 33432Phone: (561) 338-9256

25

Email: Jeanne@bradylawfirm.biz

By: /s/ Jeanne C. Brady, Esq

Florida Bar No. 0997749

and

By: /s/ Frank R Brady, Esq. Florida Bar No. 588024

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that this Brief has been filed electronically via theFourth District’s eDCA system and that a true and authentic copy has been furnishedvia email to Charles H. Burns, Esq., 250 Tequesta Drive, Suite 200, Tequesta, FL33469-2765, email: cb@chburnslaw.com attorneys for Former Wife, and Jon DNewman, Esq., 4440 PGA Blvd., Suite 600, Palm Beach Gardens, FL 33410-6542,email: jondnewmanesq@gmail.com all this 22nd day of July, 2016.

Brady & Brady, P.A.Appellate counsel for Former Husband1200 N. Federal Hwy., Suite 200Boca Raton, FL 33432Phone: (561) 338-9256Email: Jeanne@bradylawfirm.biz

By: /s/ Jeanne C. Brady, Esq

Florida Bar No. 0997749

and

By: /s/ Frank R Brady, Esq. Florida Bar No. 588024

CERTIFICATE OF COMPLIANCE WITH FONT REQUIREMENTS OF RULE 9.210 AND AO 2011-2

I hereby certify that this Answer Brief complies with Rule 9.210(a),Fla.R.App.P., and is typed with times new roman 14 point font in Corel WordPerfect

26

X5 for windows format. The brief has been e-filed and served on all counsel.

By: /s/ Jeanne C. Brady, Esq. Florida Bar No. 0997749

27