Opinion
No. 2D98-3268.
Opinion filed June 30, 2000.
Appeal from the Circuit Court for Hillsborough County; Vivian C. Maye, Judge.
Peter James Hobson, Tampa, for Appellant.
Virginia R. Vetter, Tampa for Appellee.
Alex V. Macar appeals an order that set aside the financial provisions in a final judgment of dissolution of marriage from his former wife, Vivian Webb Macar. The trial court granted relief from the final judgment based upon the wife's allegations that the marital settlement agreement, upon which the judgment was based, was unfair and entered into without full financial disclosure. The trial court granted relief based upon the tests set forth in Casto v. Casto, 508 So.2d 330 (Fla. 1987), which determine the validity of prenuptial or postnuptial agreements. Because a final judgment had been entered incorporating the Macars' agreement, this ruling amounted to a finding that the Casto tests apply even after a judgment is entered on the basis of a stipulation. We disagree. We reverse because the wife failed to establish a basis for relief from the final judgment as required by Florida Rule of Civil Procedure 1.540.
The Macars married in 1986. The parties experienced marital difficulties as early as 1994, at which time the wife filed an action for dissolution. During the previous action, each party retained counsel and the wife employed George Snyder, an accountant, to review the parties' finances. The parties dismissed the action, however, and reconciled for a short period. In 1996, the parties permanently separated. On November 18, 1996, the wife filed the petition for dissolution in this case. From that date until October 17, 1997, the parties engaged in vigorous litigation. Each party sought custody of the three minor children. They disagreed on virtually all financial issues.
The parties exchanged discovery in preparation for trial. Both parties filed financial affidavits and made efforts to comply with mandatory disclosure. See Fla. Fam. L. R. P. 12.285. The wife re-employed Mr. Snyder to determine the standard of living during the marriage, the net worth of the parties, and the husband's ability to pay support. Mr. Snyder received many of the documents that the husband provided through disclosure and discovery, and prepared a schedule of assets accordingly. There were numerous hearings on motions for temporary relief. At all times, both parties were represented by counsel.
The trial court set the case for trial on a mid-October 1997 docket. Approximately two months before trial, the wife fired her lawyer and filed a stipulation for substitution of counsel. The trial court warned the wife when it granted substitution that her new counsel would need to be prepared to begin trial in October. Both parties thereafter complied with a pretrial order by filing pretrial memoranda and witness and exhibit lists.
Four days prior to trial, the wife's new counsel requested a continuance and filed at least five other motions. On the morning of the scheduled trial, the trial court addressed each motion, as well as two new motions the wife filed that morning. Thereafter, the wife's counsel renewed his request for a continuance, arguing for the first time that he had not had sufficient time for discovery and trial preparation. The trial court denied the request and indicated that the trial would commence after the lunch hour.
This second attorney for the wife is not her counsel in this appeal.
Some of these motions accused the husband, for the first time, of abusive behavior toward the minor children. The trial court found these highly inflammatory allegations to be spurious and unfounded. This was the second time the trial court found the wife guilty of making unfounded allegations against the husband in an attempt to manipulate the judicial process.
When court reconvened, counsel for both parties announced to the trial court that they had reached an agreement on all issues. Counsel for the husband recited the terms of the agreement to the court. At some point during this process, the wife objected to a specific term, and the trial court recessed to allow the parties to resolve this remaining issue. When the parties returned, they modified the agreement to meet the wife's concern. In the modification, she was awarded a Corvette in exchange for a reduction of her lump sum rehabilitative alimony from $20,000 to $10,000.
Once the terms of the agreement were fully stated, the trial court and each party's counsel questioned the parties as to whether they agreed with these terms and whether they had entered into the agreement freely and voluntarily. Both parties indicated assent to the agreement. The wife did state that she felt she was getting "ruffled a bit," but concluded, "I'm taking it." At the end of this colloquy, the wife's counsel indicated that he had advised the wife against accepting this agreement, but she testified that she was accepting it despite his advice to the contrary. A final judgment was entered on November 17, 1997, incorporating the settlement agreement. This final judgment designates the husband as the primary residential parent for the children and provides the agreed-upon lump sum rehabilitative alimony to the wife. The wife's child support obligation is waived for two years. The judgment divides the family's modest marital assets between the two parties.
On May 8, 1998, a third attorney appeared for the wife and filed a motion for relief from judgment pursuant to rule 1.540 and Florida Family Law Rule of Procedure 12.540. The wife sought to set aside the judgment and alleged that the agreement upon which it was based was unfair — a result of fraud, over-reaching, coercion or duress — and was entered into without the wife having knowledge of the parties' assets. The wife also alleged that there was newly discovered evidence that some of the brokerage accounts held by the husband might be at least partially marital in nature, though they were designated as nonmarital property by the parties' agreement.
After a lengthy evidentiary hearing, the trial court found that the agreed final judgment was not a result of coercion but that it provided for the wife unfairly. The trial court then found that the wife had not been involved in the family finances and was thus unfamiliar with them, and that the husband had not made a complete disclosure given certain errors in his financial affidavit. Thus, the trial court determined that the financial portions of the agreement, including the financial portions of the final judgment based upon the agreement, should be set aside. The husband challenges this order on appeal.
The errors included designating some assets as nonmarital that the wife and her accountant opined should be considered marital, providing account balances which were not exact, and neglecting to list some minor assets.
The trial court focused on whether the postmarital settlement agreement should be set aside. See Casto, 508 So.2d 330. In Casto, the supreme court addressed the grounds upon which a marital settlement agreement, which was prepared prior to the commencement of litigation, could be set aside. Under Casto, an unfair marital settlement agreement raises a presumption that the spouse who was shortchanged lacked sufficient knowledge of the finances so as to make his or her assent to the agreement knowing and voluntary. This presumption may be rebutted, however, upon a showing that the shortchanged spouse has a general knowledge of the character and extent of the parties' assets and income or that the other spouse has made a full financial disclosure.
In this case, however, the agreement was not executed prior to litigation. The Macars entered into this agreement after months of litigation, after the husband had substantially complied with discovery and disclosure requirements, and after the wife retained an accountant who had compiled documentation that accurately reflected the parties' finances. We note that although the wife's counsel had filed numerous motions just prior to the date of trial, none of them alleged any deficiency in discovery or mandatory disclosure. The parties litigated for almost a year while represented by counsel of their choice. Thus, this case is somewhat similar to Petracca v. Petracca, 706 So.2d 904 (Fla. 4th DCA 1998), which questioned whether a spouse can plausibly raise the adequacy of his or her knowledge after the parties have engaged in contentious litigation while each was represented by counsel. Petracca and Casto, however, each involved an agreement that the trial court had not incorporated into a final judgment at the time it was challenged.
Because the trial court in this case incorporated the agreement into a final judgment, the wife could obtain relief from that judgment only by direct appeal or pursuant to rule 1.540. Rule 1.540 simply does not incorporate the Casto analysis for the setting aside of a marital agreement.
The wife did file a timely appeal of the final judgment. Thereafter, this court granted her request to relinquish jurisdiction to the trial court to address her motion to set aside the judgment. Once the trial court granted that relief, the wife dismissed her appeal and the husband filed this appeal. Although it seems highly unlikely that the wife would have any other grounds to challenge the final judgment in a direct appeal, upon remand, the trial court is directed to reinstate that judgment. The wife may file a timely appeal of the reinstated judgment if circumstances not addressed in this appeal merit that action.
In this case, the only bases for relief under rule 1.540 that might arguably apply are those of fraud or newly discovered evidence. The trial court made no finding of fraud on the part of the husband. Rather, the trial court ruled that "mistakes" in the husband's financial affidavit made his financial disclosure incomplete. Indeed, the evidence presented did not suggest the husband had perpetrated a fraud upon the wife, given his substantial compliance with discovery and disclosure and the nature of the mistakes. In addition, the wife's accountant, her agent, had the information on the assets and their proper valuation — information he said he compiled from documents produced by the parties. This suggests not only that there was no fraud, but also that the wife could have discovered, or did discover, the information by due diligence prior to the entry of the judgment. Thus, it was not newly discovered evidence. As a result, there is no basis upon which the trial court could grant relief from this judgment.
Reversed and remanded for reinstatement of the final judgment of dissolution of marriage.
FULMER and WHATLEY, JJ., Concur.
NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED.