Schaeffer v. Schaeffer

May 26, 1992
No. 90-2346
Versions:606 So. 2d 369
1992 WL 109123
1992 Fla. App. LEXIS 5449

Dissenting Opinion

BASKIN, Judge

(dissenting in part).

I dissent from the majority’s decision affirming the final judgment insofar as the judgment imposed a permanent injunction, excluded certain marital funds from the equitable distribution scheme, and denied the wife attorney’s fees.

The wife correctly asserts that the trial court erred in permanently enjoining her from reporting the husband’s wrongdoings to any authorities. The final judgment provides:

11. Injunction: During the course of this litigation it was necessary for the Court to issue its Temporary Mutual Restraining Order. The Court finds that it is in the best interest of the parties and their children that both parties, directly, indirectly or through their agents, are permanently restrained from reporting each other to any authorities for any wrongdoing or infraction, slandering or harassing each other. Neither party will make any remarks or take any action which will negatively impact upon the other person’s future income[.]

The terms of the injunction are overbroad. See Woodrum v. Woodrum, 590 So.2d 1093 (Fla. 3d DCA 1991); Woods v. Dozier, 529 So.2d 1236 (Fla. 1st DCA 1988); Goodell v. Goodell, 421 So.2d 736 (Fla. 4th DCA 1985). Although, on proper request, the trial court may enter an injunction prohibiting certain actions, see Schutz v. Schutz, 581 So.2d 1290 (Fla.1991), the in*370junction before us prohibits the wife from seeking protection or redress. See Plager v. Perlmutter, 159 So.2d 273 (Fla. 3d DCA 1964). Apparently, the trial court imposed the injunction to prevent the parties from harassing each other; however, neither party requested the relief and the injunction impermissibly curtails the wife’s rightful access to the courts as well as to other authorities. I would quash that portion of the judgment.

In addition, I find merit in the wife’s contention that the trial court erred in failing to include in the equitable distribution $300,000 in marital funds that the husband placed in trust for the children after the parties separated. These monies were marital assets, and subject to equitable distribution. As in Rosenfeld v. Rosenfeld, 597 So.2d 835 (Fla. 3d DCA 1992), where, during the parties’ separation, a spouse expends marital assets, the trial court must account for the expenditures in distributing "the marital assets. See Ahlo v. Ahlo, 1 Haw.App. 324, 619 P.2d 112 (1980). Accordingly, I would remand for the trial court to credit the husband in the equitable distribution scheme with the appropriate amount. See Zohlman v. Zohlman, 235 So.2d 532 (Fla. 3d DCA 1970).

I would also reverse the trial court’s denial of the wife’s request for attorney’s fees. “Attorney’s fees should be paid by the party who has the superior financial ability to pay” Martinez-Cid v. Martinez-Cid, 559 So.2d 1177, 1178 (Fla. 3d DCA 1990); § 61.16, Fla.Stat. (1987). The record in this case clearly demonstrates that the husband has superior financial ability to pay; the wife’s request for fees should have been granted. Werner v. Werner, 587 So.2d 473 (Fla. 3d DCA 1991).

I would therefore reverse the final judgment of dissolution and remand for further proceedings.

Before BARKDULL, BASKIN and GERSTEN, JJ.





Dissenting Opinion

BASKIN, Judge

(dissenting).

I would grant the wife’s motion for rehearing. Although a trial court retains *371jurisdiction to revisit the terms of an injunction, Hale v. Miracle Enter. Corp., 517 So.2d 102 (Fla. 3d DCA 1987), it is apodictic that the retention does not substitute for appellate review or preclude our consideration of the injunction’s terms. E.g., Woodrum v. Woodrum, 590 So.2d 1093 (Fla. 3d DCA 1991); Wood v. Dozier, 529 So.2d 1236 (Fla. 1st DCA 1988); Goodell v. Goodell, 421 So.2d 736 (Fla. 4th DCA 1982).

The trial court’s injunction is appropriately before this court for appellate review. We need not shirk our responsibility merely because the trial court will be free to reconsider its ruling at some future date. Because wrongs should be remedied in a timely fashion, without undue delay, the impermissible injunction should be quashed now. For these reasons, as well as for those stated in my original dissent, I would grant rehearing.





Lead Opinion

PER CURIAM.

After a marriage of some twenty odd years, the trial court entered a final judgment of dissolution and divided the marital assets with a gross value per the final judgment of several million dollars. The record is susceptible to the view that the wife received approximately $1,218,556.00 of which approximately $700,000.00 was liquid amounts and the husband received approximately $1,251,243.00, with liquid assets of approximately $100,000.00. No alimony or attorney’s fees were awarded in the trial court. The record also shows that during the course of the marriage, the parties (with the wife’s approval) gave substantial sums of money to their children. After the separation of the parties, the husband created inter vivos trusts for the children in the amount of $300,000.00. The creation of the children’s trusts was consistent with the actions of the parties during the marriage.

The wife appeals seeking alimony, attorney’s fees, a review of the amount she was required to pay for child support, and a review of the division of marital assets.

The husband cross-appeals the failure of the trial court to accord him an alleged special equity in certain of the marital assets.

We find no error in any rulings of the trial court and affirm. Schutz v. Schutz, 581 So.2d 1290 (Fla.1991); Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980); Spillert v. Spillert, 564 So.2d 1146 (Fla. 1st DCA 1990); rev. denied 576 So.2d 291 (Fla.1990); Kozak v. Kozak, 507 So.2d 718 (Fla. 3d DCA 1987); Zalis v. Zalis, 498 So.2d 505 (Fla. 3d DCA 1986); Antonini v. Antonini, 473 So.2d 739 (Fla. 1st DCA 1985).

Affirmed.

BARKDULL and GERSTEN, JJ., concur.





Rehearing

ON REHEARING

PER CURIAM.

The appellant’s petition for rehearing is denied and counsel’s attention is called to Hale v. Miracle Enterprises Corp., 517 So.2d 102 (Fla. 3d DCA 1987) wherein the following is found:

It is well settled that (a) because permanent injunctions are open ended and remain indefinitely in effect, a court necessarily retains jurisdiction to modify an injunctive order whenever changed circumstances make it equitable to do so, United States v. Swift & Co., 286 U.S. 106, 52 S.Ct. 460, 76 L.Ed. 999 (1932); Seaboard Rendering Co. v. Conlon, 152 Fla. 723, 12 So.2d 882 (1943); Jackson Grain Co. v. Lee, 150 Fla. 232, 7 So.2d 143 (1942), and (b) since the terms of an injunction must be confined to that required by their existing circumstances to enforce the particular right asserted, see 29 Fla.Jur.2d Injunctions §§ 11-12 (1981), those terms are obviously subject to alteration when those conditions change. The terms of any initial injunction, based upon the circumstances which then prevail, cannot therefore bind a subsequent determination of the appropriate extent of the injunction under the doctrine of res judicata. System Fed. No. 91 Ry. Employes’ Dep’t v. Wright, 364 U.S. 642, 81 S.Ct. 368, 5 L.Ed.2d 349 (1961); Jackson, 150 Fla. at 237, 7 So.2d at 146 (court has inherent power to open or modify an injunction when change in circumstances occurs after decree is rendered); Town of Durham v. Cutter, 121 N.H. 243, 428 A.2d 904 (1981); Note, Developments in the Law-Injunctions, 78 Harv.L.Rev. 994 (1965). In accordance with these principles, there is no doubt that, when changed conditions warrant, the trial court has juridical authority to exercise its discretion either to limit or restrict an existing injunction, see Seaboard Rendering Co., 152 Fla. at 725, 12 So.2d at 883.

Hale, 517 So.2d at 103 (footnote omitted).

BARKDULL and GERSTEN, JJ., concur.