Moustafa Farghali v. Joyce Farghali
187 So. 3d 338
Fla. Dist. Ct. App.2016Background
- Moustafa Farghali (Husband) and Joyce Farghali (Wife) divorced; final judgment of dissolution entered in Feb 2014 and appealed by Husband.
- Husband challenged the equitable distribution, arguing the trial court failed to make specific factual findings for certain assets and liabilities.
- Husband did not provide a trial transcript on appeal and did not file a motion for rehearing asserting omitted findings.
- After the first appeal, the trial court concluded the QDRO used to divide Husband’s pension was ineffective for that pension and entered a second order attempting to remedy the distribution.
- The second order was ambiguous as to whether the pension division required monthly transfers or a lump-sum; it also made equitable-distribution payments enforceable by contempt.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court’s lack of specific factual findings in equitable distribution may be raised on appeal | Husband: trial court failed to make required findings under §61.075(3)(b) | Wife: error not preserved; no motion for rehearing and no trial transcript | Court: Error not preserved; affirm final judgment because party must timely object in trial court (motion for rehearing) to raise omission on appeal |
| Whether trial court had jurisdiction to amend/clarify pension division while appeal pending | Husband: trial court lacked jurisdiction to enter new order during appeal | Wife: trial court retained limited jurisdiction to act on matters not interfering with appeal and to correct ineffective QDRO | Court: Trial court retained jurisdiction for matters not interfering with appellate rights; modification here did not materially alter judgment |
| Proper method to effectuate division of Husband’s pension (monthly payments v. lump sum) | Husband: (implied) existing remedial language sufficient or lump sum acceptable | Wife: needs clear mechanism to secure equitable share (monthly payments preferable) | Court: Remanded for a new order clarifying distribution; suggested monthly award of one-half of Husband’s monthly pension benefits on receipt rather than speculative lump sum |
| Whether equitable distribution payments may be enforced by contempt | Husband/Wife: trial court ordered payments enforceable by contempt | Wife: enforcement by contempt appropriate to secure award | Court: Reversed contempt enforcement; equitable-distribution payments are not enforceable by contempt unless in substance they are support/alimony; enforcement must be by ordinary creditor remedies |
Key Cases Cited
- Simmons v. Simmons, 979 So. 2d 1063 (Fla. 1st DCA 2008) (failure to raise omitted findings in motion for rehearing waives appellate complaint)
- David v. David, 58 So. 3d 336 (Fla. 5th DCA 2011) (preservation rule; motion for rehearing required)
- Jallali v. Knightsbridge Vill. Homeowners’ Ass’n, 152 So. 3d 808 (Fla. 4th DCA 2014) (trial court retains limited jurisdiction during pending appeal)
- McDonald v. McDonald, 731 So. 2d 132 (Fla. 4th DCA 1999) (an order functionally equivalent to a QDRO secures wife’s pension rights)
- Rumler v. Rumler, 932 So. 2d 1165 (Fla. 2d DCA 2006) (equity permits alternative remedies when QDRO is ineffective)
- Pineiro v. Pineiro, 988 So. 2d 686 (Fla. 4th DCA 2008) (contempt power cannot be used to settle property rights; imprisonment for debt prohibited)
- Pipitone v. Pipitone, 23 So. 3d 131 (Fla. 2d DCA 2009) (equitable-distribution payments not enforceable by contempt; use creditor remedies)
- Cummings v. Cummings, 37 So. 3d 287 (Fla. 4th DCA 2010) (if a payment is in substance support, contempt may be used; otherwise not)