LATTANZIO v. HOFFMANN (2019)

Claudio Lattanzio (“Husband”) appeals from the final judgment of dissolution of marriage and a related order entered by the trial court after the entry of an earlier order striking the Husband's pleadings and entering a default against him for failing to attend an order to show cause hearing. For the reasons that follow, we reverse and remand for further proceedings.

Jerika Hoffman (“Wife”) filed a petition for dissolution of marriage and the Husband, through counsel, filed an answer to the petition. The Husband's counsel subsequently moved to withdraw as counsel and on March 8th, 2017, the trial judge entered the order granting counsel permission to withdraw. The order provided that the Husband could be served future notices and pleadings at the marital home.

On March 15th, 2017, the trial court entered an ex parte Order on Mediator's Report, reflecting that the parties entered into a partial mediated settlement agreement (“partial MSA”) the previous day.¹ The trial court's order states that the partial MSA will be incorporated into the final judgment of dissolution of marriage and that the parties are required to comply with all matters and/or issues resolved in the partial MSA. The partial MSA provides, among other things, that (1) the Wife's counsel was required, within five days, to provide the Husband with the names of three appraisers for the marital home and for the boat, and thereafter, the Husband, within five days, was required to inform the Wife's counsel which appraisers he had chosen, with the parties dividing the costs of the appraisal services; (2) the Husband agreed to move out of the marital home by April 13th, 2017; and (3) the Husband was required to comply with mandatory discovery before March 23rd, 2017.² There is no indication on the trial court's ex parte Order on Mediator's Report that the order was sent to the Husband, who at that point was proceeding pro se.

On April 18th, 2017 the trial court issued an order scheduling the case for final hearing, or, in the alternative, a case management conference for May 17th, 2017. The Husband failed to attend the May 17th hearing. On that same day, the trial judge entered and signed an order to show cause why the Respondent/Husband should not be held in contempt for failing to file and serve his choice of appraisers for the marital home and the family boat on counsel for the wife as previously ordered by the MSA. The terms of the order to show cause required the Husband to appear in court on May 24th at 10:30 a.m. to show why he should not be held in contempt or why other sanctions should not be imposed due to his lack of compliance.

As supported by the Record on appeal, court documents show that the Order to Show Cause issued by the trial court on May 17th, 2017 was mailed not to the Husband at the marital home, but instead was mistakenly sent to the Husband's former counsel who had withdrawn as counsel for the Husband on March 8th 2017, over two months earlier.

On May 24th, 2017, the Husband failed to appear at the order to show cause hearing. The trial court entered an order (1) finding that he was in willful noncompliance with the trial court's orders entered on March 15th, 2017 and May 17th, 2017, (2) striking the Husband's pleadings and entering a default against him, (3) ordering the Husband to vacate the marital home by June 1st, 2017, and (4) permitting the Wife to commission the appraisals of the marital home and the boat, and ordering the Husband to pay 50% of the appraisal costs.

The final hearing was conducted on August 17th, 2017, with the Husband appearing pro se. At the final hearing, the remaining issues to be determined by the trial court were child support and the equitable distribution of the parties' marital assets and liabilities. At the commencement of the final hearing, the trial court stated that it had already stricken the Husband's pleadings, and therefore, the Husband could not present a defense.

The trial court entered a final judgment of dissolution of marriage. The final judgment states that the Husband's pleadings were stricken and a default entered against him when he failed to attend the show cause hearing on May 24th, 2017 “despite due notice.” In the final judgment, the trial court, among other things, determined that the Husband's 20% interest in DBAG Group Corp. was a marital asset,³ distributed the parties' marital assets and liabilities, and awarded child support to the Wife based on income imputed to the Husband. The Husband filed a motion for rehearing of the final judgment of dissolution of marriage. Following the trial court's denial of the motion for rehearing of the final judgment, this appeal followed.

The Husband contends that the trial court abused its discretion by striking his pleadings and entering a default against him as a sanction for failing to attend the order to show cause hearing. See Barrett v. Escape of Arrowhead Ass'n, 194 So. 3d 504, 506 (Fla. 4th DCA 2016) (holding that an order granting sanctions is reviewed on appeal for an abuse of discretion). Under the circumstances of this case, we agree.

“[T]he striking of pleadings or entering a default for noncompliance with an order ․ is the most severe of all sanctions which should be employed only in extreme circumstances.” Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 1983). However, “[a] deliberate and contumacious disregard of the court's authority will justify application of this severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.” Mercer, 443 So. 2d at 946 (citation omitted).

Here, the trial court found that the Husband was in willful noncompliance with the trial court's orders entered on March 15th, 2017 and May 17th, 2017. The March 15th, 2017 order required the parties to comply with all matters and/or issues resolved in their partial MSA, which would specifically include the Husband's obligation to choose appraisers for the marital home and the boat from the lists provided to him by the Wife's counsel. As a sanction for the Husband's willful noncompliance of the March 15th order, the trial court permitted the Wife to choose the appraisers and ordered the Husband to pay 50% of the costs. The Husband does not challenge this sanction.

The May 17th, 2017 order required the Husband to appear before the trial court on May 24th, 2017 to show cause. As a sanction for failing to appear, the trial court struck the Husband's pleadings and entered a default against him. Although we are reluctant to interfere with a trial court's management of its cases, we conclude that imposition of the severest sanction of striking the Husband's pleadings and entering a default against him was an abuse of discretion. The record before this Court indicates that the May 17th order was not sent to the Husband, who was representing himself. Rather, the order to show cause was sent to the Husband's former attorney, who withdrew effective March 8th, 2017. There is no indication in the record before this Court that the Husband received the order to show cause. Thus, the trial court's finding that the Husband's failure to appear at the show cause hearing was willful is not supported by the record before this Court. Accordingly, we conclude that the trial court abused its discretion by striking the Husband's pleadings and entering a default against him.

Since the final hearing went forward without the Husband being permitted to present a defense because his pleadings had been stricken and a default entered against him, we reverse the portions of the final judgment relating to the equitable distribution of the parties' marital assets and liabilities,⁴ and remand with instructions for the trial court to conduct a final hearing, allowing the Husband to present a defense.⁵ We need not need address the Husband's arguments relating to the equitable distribution of the parties' assets and liabilities as we have remanded for a new hearing to address this matter.

Reversed and remanded with directions.

FOOTNOTES

1.   The Order on Mediator's Report was filed for record on March 17th, 2017.

2.   In addition to those matters, the parties agreed, among other things, to have shared parental responsibility of their minor child and to a specific timesharing plan.

3.   On the day of the final hearing, one of the two properties owned by DBAG Group was being sold. Thus, on that same day, the trial court entered an order titled “Order of Disbursal of Closing Proceeds,” which provides, in part, that the closing agent was required to disburse all proceeds payable to the Husband to the Wife's counsel's trust account, and thereafter, the Wife's counsel was required to disburse to the Wife 50% of the proceeds plus attorney's fees and the costs for the court reporter, with the Husband receiving the balance of the proceeds. The Husband moved to vacate this order, and the trial court denied the motion to vacate. The Husband has appealed this order in this appeal.

4.   The Husband does not challenge on appeal any portions of the final judgment relating to the child. As the calculation of child support was based on the trial court imputing income to the Husband, on remand, the Husband cannot challenge the trial court's determination of his income.

5.   We also reverse the Order on Disbursal of Closing Proceeds. That order was entered based on the trial court's determination that the Husband's 20% interest in DBAG Group was a marital asset. On remand, if the trial court determines that the Husband's interest in DBAG Group is not a marital asset, the trial court is required to take this into consideration when equitably distributing the parties' assets as the proceeds from the sale of at least one of the properties has already been disbursed to the Wife.

HENDON, J.