Austin v. Austin
120 So. 3d 669
| Fla. Dist. Ct. App. | 2013Background
- Husband filed for dissolution; both were lawyers formerly at Austin & Austin, P.A.; wife left the firm and obtained new employment.
- Marital home faced imminent foreclosure; parties expected attorney’s fees from Jacksonville Transportation Authority (JTA) that might cover mortgage arrears.
- Trial court had previously ordered JTA funds split (undisputed to Broad & Cassel; disputed portion retained pending court determination) and earlier directed any JTA funds be used to catch up mortgage arrears.
- Wife moved for emergency relief after inconsistencies in prior orders and asserted about $21,000 from JTA (and $6,000 of her funds) were needed to avoid foreclosure; later counsel reported JTA said no additional fees were owed and $28,000 was needed to reinstate the mortgage.
- At the emergency hearing the court ordered liquidation of husband’s deferred compensation ($18,504) and IRA (~$3,992), the parties’ wine collection, wife’s $6,000, and sale of wife’s dining set to pay mortgage arrears; it also directed any future JTA fees (if realized) be escrowed.
- Husband appealed, arguing lack of jurisdiction over nonparty corporate funds and that the court abused its discretion by ordering liquidation of his assets without notice or pleading.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court had jurisdiction to escrow/appoint distribution of anticipated attorney’s fees paid by JTA to husband’s nonparty law firm | Wife: Court could direct anticipated JTA fees to mortgage or escrow them for protection of marital asset | Husband: Court lacked subject-matter and personal jurisdiction over nonparty corporations (his law firm and JTA) | Court struck the escrow/escrowing directive as surplusage because no fees were due and jurisdictional issue moot; left jurisdictional question for later if funds materialize |
| Whether trial court properly ordered liquidation of husband’s personal assets without those remedies being pled or noticed | Wife: Emergency justified expeditious steps to save home and the court could direct funds to cure foreclosure | Husband: Liquidation of his retirement and personal property was not pled; ordering such relief without notice violated due process and §61.075(5) | Reversed as an abuse of discretion: liquidation and distribution of husband’s assets was beyond pleadings/notice and violated due process; interim distribution statute did not authorize unsworn, unpleaded asset seizures |
Key Cases Cited
- Esposito v. Esposito, 651 So.2d 1248 (Fla. 2d DCA 1995) (family-owned business may be marital asset subject to equitable distribution)
- Mathes v. Mathes, 91 So.3d 207 (Fla. 2d DCA 2012) (court may value/distribute corporate stock but cannot transfer corporate property without joinder)
- Ashourian v. Ashourian, 483 So.2d 486 (Fla. 1st DCA 1986) (court may restrain disposal of assets under exclusive control without joining corporations, but cannot transfer corporate property absent joinder)
- Norberg v. Norberg, 79 So.3d 887 (Fla. 4th DCA 2012) (adjudicating issues not presented by pleadings or noticed denies due process)
- Mondello v. Torres, 47 So.3d 389 (Fla. 4th DCA 2010) (due process violated when court decides matters not noticed or pleaded)
- Mizrahi v. Mizrahi, 867 So.2d 1211 (Fla. 3d DCA 2004) (trial court cannot decide unpleaded matters; due process protections apply)
- Cooper v. Cooper, 406 So.2d 1223 (Fla. 4th DCA 1981) (judgment outside pleadings cannot stand)
- Carmona v. Wal-Mart Stores, E., LP, 81 So.3d 461 (Fla. 2d DCA 2011) (notice must reasonably apprise interested parties and allow opportunity to be heard)
- N.C. v. Anderson, 882 So.2d 990 (Fla. 2004) (notice must convey required information and afford reasonable time to appear)