author: KLEIN, J.

text:
    Harry VENIS, as Personal Representative of the Estate of Robert Greenspan, Appellant, v. Carol GREENSPAN, Aaron Greenspan and Leahruth Greenspan, Appellees.
    Nos. 4D01-1796, 4D01-3374.
    District Court of Appeal of Florida, Fourth District.
    Dec. 18, 2002.
    Peter J. Forman and Joanna D. Kane of Tescher, Chaves, Rubin & Forman, P.A., Boca Raton, for appellant.
    Christopher M. David of Hall, David and Joseph, P.A., Miami, for appellees.
   KLEIN, J.

In this appeal the personal representative of an estate argues that the fees awarded by the court to him, as well as to his counsel, were insufficient. The beneficiaries of the estate have cross-appealed, contending the fees awarded are too high. We affirm.

The trial court, in a thoroughly well-reasoned and scholarly judgment which contained extensive findings of fact, awarded the P.R. $206,460 and his counsel $177,345, for services rendered this $8.3 million dollar estate. The estate consisted of about $6 million dollars in stocks and bonds which were managed by a bank, a minority interest in a manufacturing company, a residence with an adjacent horse farm, and some warehouses.

The P.R. and counsel both sought fees based on the sliding scale percentage fee rate provided for in sections 733.617 and 733.6171, Florida Statutes (1997), plus additional fees for extraordinary services. These services included satisfying a claim against the estate, having the responsibility for the securities, obtaining appraisals of decedent’s assets, resolving a claim of the estate in a bankruptcy proceeding, satisfying the mortgage and transferring title of decedent’s residence, selling decedent’s horses, managing and leasing two warehouses, and carrying out a charitable pledge. The trial court denied extraordinary fees.

The trial court found that the services for which extraordinary compensation was requested, mostly described above, were not extraordinary, considering the size of this estate. The court noted that the bulk of the estate was in securities which were managed by an outside adviser and found that neither the production of income by investing in bonds, nor the decision as to liquidating securities in order to satisfy bequests, was out of the ordinary. The court’s decision to award fees based on the sliding scales provided in section 733.617 for the P.R. and section 733.6171 for counsel, and no additional fees for extraordinary services, is supported by competent substantial evidence.

Counsel also sought a separate enhancement of his fee for preparing the federal estate tax return based on section 733.6171(4)(e), Florida Statutes, which presumes a reasonable fee for preparation of the return to be one-half of one percent for estates under $10 million if the return is “prepared by the attorney.” The fee agreement in this case refers to the statute, and also provides that if the return is prepared by a person other than the attorney, the attorney will be compensated on an hourly basis. The return was prepared jointly by the P.R., who was a CPA, and counsel, and they were planning to split the statutory percentage fee.

The court found that counsel was not entitled to the statutory percentage because counsel had not prepared the return as contemplated by the statute and fee agreement, but that additional fees could be awarded on an hourly basis. We agree with that conclusion.

The P.R. has moved for attorney’s fees to be awarded from the estate for services rendered on his appeal as well as the cross-appeal. Section 733.6175(2), Florida Statutes (1992), formerly section 733.6171(8), provides:

Court proceedings to determine reasonable compensation of the personal representative or any person employed by the personal representative, if required, are part of the estate administration process, and the costs, including attorneys’ fees, of the person assuming the burden of proof of propriety of the employment and reasonableness of the compensation shall be determined by the court and paid from the assets of the estate unless the court finds the requested compensation to be substantially unreasonable. The court shall direct from which part of the estate the compensation shall be paid.

In connection with the litigation including fees, the trial court awarded some of the counsel fees incurred by the P.R., but did not award fees for the litigation on the claims for extraordinary services. The court found that portion of the work, on which the P.R. did not prevail, to be “substantially unreasonable” under the statute. Consistent with that ruling, which has not been appealed, we deny the motion for fees incurred on the main appeal. We conclude that because we are affirming the denial of the claim for extraordinary services, the estate should not have to bear those fees. We agree with the P.R. that he is entitled to fees for defending the cross-appeal and grant his motion in that respect.

We have considered the other issues raised on appeal and cross-appeal and find them to be without merit. Affirmed.

GROSS and TAYLOR, JJ., concur.

      . This opinion should not be construed as holding that a lawyer who uses personnel in the lawyer's office to assist the lawyer in preparing the return is precluded from seeking the percentage suggested by the statute. In the present case the CPA who assisted in preparation of the return was not affiliated with the lawyer.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ananias WESTBROOK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2051.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2002.
    Ananias Westbrook, in proper person.
    Richard E. Doran, Attorney General, for appellee.
    Before JORGENSON, LEVY, and GERSTEN, JJ.
   PER CURIAM.

Affirmed. See Martin v. State, 816 So.2d 187 (Fla. 5th DCA 2002) (holding that lack of proof as to whether venire panel was sworn is not fundamental error; defendant is required to raise issue in contemporaneous objection).


text:
    Michael ALEXANDER, Appellant, v. The CITY OF MIAMI, Appellee.
    No. 3D02-1015.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2002.

      Bernard J. Butts, Jr., Hileah, for appellant.
    Alejandro Vilarello, City Attorney, and Christopher Green and Regine Monestime, Assistant City Attorneys, for appellee.
    Before JORGENSON, LEVY, and SHEVIN, JJ.
   PER CURIAM.

We affirm the order of summary judgment, as the City was not liable as a matter of law for any injuries sustained by plaintiff at the location alleged in his pre-suit notice and his complaint.

The trial court did not abuse its discretion in denying plaintiffs motion to amend. See Fla. R. Civ. P. 1.190(b) (2001); Frenz Enters., Inc. v. Port Everglades, 746 So.2d 498, 503 (Fla. 4th DCA 1999) (holding that trial court did not abuse its discretion in denying leave to amend complaint where proposed amendment would “materially vary the originally asserted grounds for relief’).

AFFIRMED.


author: FLETCHER, Judge.

text:
    BETSY ROSS HOTEL, INC., Appellant, v. A.G. GLADSTONE ASSOCIATES, INC., etc., et al., Appellees.
    No. 3D02-1918.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2002.

      Arnaldo Velez, Coral Gables, for appellant.
    William L. Petros and Justin B. Elegant, Miami, for appellees.
    Before SCHWARTZ, C.J., and FLETCHER and RAMIREZ, JJ.
   FLETCHER, Judge.

Betsy Ross Hotel, Inc., [Hotel, Inc.] appeals a trial court order denying its motion to dissolve notice of lis pendens or to set a hearing on the question of requiring a lis pendens bond. We reverse as to the trial court’s refusal to hold a bond hearing.

In January, 1998 A.G. Gladstone Associates, Inc. [Gladstone] and others entered into a joint venture agreement aimed at converting the property known as the Betsy Ross Hotel into condominium status. Subsequently several of the parties had a falling out which led Gladstone to file suit, alleging various wrongs. A notice of lis pendens was filed by Gladstone simultaneously. In May, 2000, the Betsy Ross Hotel property was quitclaimed by a defendant or defendants to Hotel, Inc., notwithstanding the lis pendens. In a (fifth) amended complaint Gladstone joined Hotel, Inc. as a party defendant. Hotel, Inc. moved to have the trial court dissolve the lis pendens, or, in the alternative, to require Gladstone to post a bond if the lis pendens were to remain in place.

A trial court has the authority to require a lis pendens bond if the action is not founded on a “duly recorded instrument” or certain liens. PanAmericano of South Dakota, Inc. v. Suncoast Bay Dev., Inc., 829 So.2d 1006 (Fla. 2d DCA 2002). Before setting bond the court is to afford the parties an evidentiary hearing on the issues of whether the property holder would likely incur damage if notice of lis pendens was unjustified, and the amount of such damages. Licea v. Anllo, 691 So.2d 29 (Fla. 3d DCA 1997). The boiled-down issue here is whether Gladstone’s action is founded on a duly recorded instrument.

Section 48.23, Florida Statutes (1999), which governs various matters surrounding notices of lis pendens, provides in subsection (3):

“When the initial pleading does not show that the action is founded on a duly recorded instrument or on a lien claimed under part I of Chapter 713, the court may control and discharge the notice of lis pendens as the court may grant and dissolve injunctions.”

Gladstone contends that the initial pleading shows that the action is founded on a duly recorded instrument, that is, the joint venture agreement (and as will be seen, a unilateral “memorandum of agreement”). Hotel, Inc. contends that the joint venture agreement is the foundation instrument, and, while it may appear in the public records, it is not duly recorded. This is the case, Hotel, Inc. argues, as the joint venture agreement-the instrument on which Gladstone’s action is founded-was not acknowledged, or witnessed, or notarized as required for recordation by section 695.03, Florida Statutes (1997). This section provides, in pertinent part:

“To entitle any instrument concerning real property to be recorded, the execution must be acknowledged by the party executing it, proved by a subscribing witness to it ...” [or properly notarized as set forth in § 695.03]

These requirements for recording have existed for many years. See McEwen v. Schenck, 108 Fla. 119, 146 So. 839 (1933); Keech v. Enriquez, 28 Fla. 597, 10 So. 91 (1891). In Keech the supreme court stated, at 91:

“A deed or any other instrument, though actually transcribed upon the public records, is not ‘recorded’ within the legal acceptation of that word, where there has been no proper proof of its execution, as required by law, authorizing a record thereof.” [e.s.]

See also Edwards v. Thom, 25 Fla. 222, 5 So. 707 (1889).

Apparently recognizing the joint venture agreement’s deficiencies as to recordation, Gladstone created a unilateral “memorandum of agreement” to which it stapled a copy of the joint venture agreement. Gladstone’s memorandum with the joint venture agreement stapled to it was then placed in the public records. The memorandum reads:

“MEMORANDUM OF AGREEMENT
This Memorandum of Agreement, executed this 20th day of January, 1998, in connection with that certain JOINT VENTURE AGREEMENT dated January 9, 1998, between CARD INVESTMENTS, INC., a Florida corporation (hereinafter referred to as ‘Owner’) and A.G. GLADSTONE ASSOCIATES, INC., a Florida corporation (hereinafter referred to as ‘Developer’).
1. Attached hereto is a true and correct copy of that Joint Venture Agreement as described above and executed on behalf of Owner by Novel Penabad, President and on behalf of developer by Richard A. Golden, Incorporator as pertains to the ownership and development of real property lying and situate in Dade County, Florida, and legally described as follows:
LOTS 1 AND 2, BLOCK 19 OF OCEAN BEACH ADDITION NUMBER 2, ACCORDING TO THE PLAT THEREOF, AS RECORDED IN PLAT BOOK 2 AT PAGE 56 OF THE PUBLIC RECORDS OF DADE COUNTY, FLORIDA.
and having a common street address of 1440 Ocean Drive, Miami Beach, Dade County, Florida.
2. The JOINT VENTURE AGREEMENT is subject to all easements, conditions, restrictions and covenants Of record and common to the subdivision, as well as any liens, encumbrances, mortgages and any taxes which may be due and payable as assessed to the subject real property described hereinabove.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals, and executed this Joint Venture agreement, on the day and year first above written.
/s/ Maxine Lopes
MAXINE LOPES
By: /s/ Richard A. Golden
RICHARD A. GOLDEN 11900 Biscayne Blvd., Suite 301 North Miami, FL 33181
STATE OF FLORIDA) ) ss COUNTY OF DADE )
The foregoing instrument was acknowledged before me this 20 day of JANUARY, 1998, by RICHARD A. GOLDEN who is personally known to me and who took an oath.
My commission expires:
[NOTARY SEAL]
/s/ Maxine Lopes Notary Public, State of Florida
MAXINE LOPES Notary name typed or printed”

A.336-37.

By this maneuver Gladstone attempts to circumvent section 695.03. However, the stapling together of these two instruments, and their appearance in the records, do not equal a duly recorded instrument upon which Gladstone’s action can be founded. First, the law suit is not (and could not be) founded on the memorandum as it is a unilateral document and not binding on non-signatories. Whether recorded or not the memorandum is an irrelevancy.

Second, the joint venture agreement, the actual instrument upon which Gladstone’s action is founded, having no proper proof, “although transcribed upon the public records,” is not “recorded” according to Keech v. Enriquez, supra. Thus the action is not founded on a duly recorded instrument and the trial court may control the notice of lis pendens. The property holder is therefore entitled to a lis pendens bond hearing in accordance with Licea v. Anllo, supra. That portion of the trial court’s order denying the bond hearing is reversed and the cause is remanded for further proceedings consistent herewith.

Reversed in part; affirmed in part; and remanded.

      . The trial court properly denied the motion to strike the lis pendens as Hotel, Inc. does not dispute that there is a fair nexus between the legal or equitable ownership of the property and the dispute embodied in the action. See Chiusolo v. Kennedy, 614 So.2d 491 (Fla.1993).

      . Quoted from the court's syllabus. The principle may also be found in the text of the court's opinion at 93.

      . We remind the reader of the language of section 48.23 which requires that the instrument in question be duly recorded. “Duly” is defined as "in a proper manner” by the American Heritage Dictionary (1969), at 403, and as "In due or proper form or manner; according to legal requirements” by Black’s Law Dictionary (1968), at 591.

      . If parties could convert the legal status of an instrument by the simple expedient attempted here by Gladstone, there soon would be no court control of any lis pendens. If the legislature so intended it would have done just as well by not enacting section 48.23(3).

      . Even if we were to disagree with the supreme court’s Keech principle (we don’t and we can't), we observe that the joint venture agreement is most certainly not duly recorded.


author: LEWIS, J. BOOTH, J.,

text:
    EDGEWATER BEACH OWNERS ASSOCIATION, INC., Appellant, v. WALTON COUNTY, Florida; Grand Dunes, Ltd.; and KPM, Ltd., Appellees, and Robert A. Butterworth, Attorney General of Florida, Appellant, v. Walton County, Florida; Grand Dunes, Ltd.; and KPM, LTD., Appellees.
    Nos. 1D00-3538, 1D00-3555.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2002.

      Richard E. Doran, Attorney General; Jonathan A. Glogau, Special Counsel, Tallahassee, for Robert A. Butterworth, Appellant.
    W. Douglas Moody, Jr. of Graham, Moody & Sox; J. Riley Davis of Katz, Kutter, Haigler, Alderman, Bryant & Yon, P.A., Tallahassee, for Edgewater Beach Owners Association, Inc., Appellant.
    W. Douglas Hall, Martha Harrell Chum-bler, Nancy G. Linnan of Carlton, Fields, Ward, Emmanuel, Smith, & Cutler, P.A., for Grand Dunes and KPM, Appellees.
   ON MOTIONS FOR REHEARING, REHEARING EN BANC, AND CERTIFICATION

LEWIS, J.

We deny the motions for rehearing en banc and certification. However, we grant the motion for rehearing for the limited purpose of clarifying our previous opinion. Therefore, we withdraw our opinion dated August 22, 2002, and issue the following clarified opinion in its place.

Edgewater Beach Owners Association, Inc. and Robert A. Butterworth, Attorney General of Florida, (“appellants”) seek review of an order dismissing their action for injunction filed under section 163.3125, Florida Statutes (1995), and granting final judgment in favor of Grand Dunes and KPM (“developers”). Although the trial court erred in finding that appellants lacked standing, we affirm the trial court’s order because the developers have statutory vesting rights in the development, exempting them from complying with Walton County’s comprehensive plan. Because we affirm on the basis of statutory vesting, we decline to address the remaining issue on appeal.

In 1982, Walton County (“County”) approved development of a six-phase condominium project containing 476 residential units. The project was authorized as a Development of Regional Impact (DRI). The County issued Resolution 82-12, authorizing construction of the project without any conditions. In 1984, Phases I and II consisting of 175 total units were completed. Edgewater Beach Owners Association, Inc. (“Association”) is a condominium association and the owner of Phases I and II. The developers own the remaining undeveloped property.

As the 1982 development order had an expiration date of June 8, 1992, KPM sought an extension of the build out date and expiration date. In 1993, the County issued Resolution 93-2, which extended the expiration date of the original development order. Resolution 93-2 also approved KPM’s proposed design changes, which lowered the density in Phase III from 42 units to 19 townhomes. The resolution conditionally approved construction in Phases IV through VI at the 1982 levels, subject to a traffic study. The County concluded that the amendment to the 1982 order was not a substantial deviation and required no further DRI review under chapter 380, Florida Statutes.

The Association sought review of the County’s 1993 resolution with the Florida Land and Water Adjudicatory Commission (“FLWAC”). FLWAC dismissed the appeal for lack of standing, stating that the Association was not a permissible party under chapter 380 to appeal to FLWAC. This Court determined that chapter 380 permitted the Association to appeal to FLWAC and remanded for further proceedings. Edgewater Beach Owners Ass’n v. Bd. of County Comm’rs of Walton County, 645 So.2d 541 (Fla. 1st DCA 1994). On remand, FLWAC found that the Association did not adequately allege an adverse effect in order to establish standing. In addition, FLWAC held that the DRI was not abandoned and that the County had the discretion to revive the 1982 DRI. On appeal, this Court affirmed FLWAC’s decision. Edgewater Beach Owners Ass’n v. Bd. of County Comm’rs of Walton County, 694 So.2d 43 (Fla. 1st DCA 1997). The Association did not file any other action regarding Resolution 93-2.

In October 1995, the developers filed a Notice of Proposed Change, seeking to construct only two additional phases rather than four. The developers proposed building 89 units in Phase III and 89 units in Phase IV, each phase consisting of 20 stories. The County approved this development plan by issuing Resolution 95-82 as an amendment to the 1982 development order, as amended by Resolution 93-2. The Resolution further stated that the “DRI project is vested from application of the 1993 Walton County Comprehensive Plan pursuant to Section 163.3167(8), Florida Statutes” for development rights to 301 condominium units, the number of units allowed under the 1982 development order. The County’s 1993 comprehensive plan imposed a four-story height restriction and limited the density of development to 12 units per acre.

The Association filed an appeal of this resolution with FLWAC, arguing that the changes in the development were not vested from compliance with the comprehensive plan. FLWAC upheld the Association’s challenge to Resolution 95-82. This Court, however, determined that, based upon the record, the Association did not have standing to maintain the action before FLWAC. Grand Dunes v. Walton County, 714 So.2d 473 (Fla. 1st DCA 1998). The Court vacated FLWAC’s order and remanded the case with directions to dismiss the petition for lack of standing. Id. at 475.

On March 7, 1996, the Association filed a complaint against Walton County, Grand Dunes and KPM, pursuant to section 163.3215 seeking to enjoin any development under Resolution 95-82. It challenged the validity of Resolution 95-82, claiming that it was inconsistent with the county’s comprehensive plan. Grand Dunes and KPM responded that their rights to complete development vested under section 163.3167(8), Florida Statutes (1995), and under the common law principle of equitable estoppel. On December 16, 1998, Robert A. Butterworth, Attorney General, moved to intervene in the action, claiming that the issue of vested rights was an issue of statewide importance. The parties stipulated that the development amended by Resolution 95-82 would be inconsistent with the density requirements of the 1993 comprehensive plan but for the vesting of rights under statute or common law.

At trial, the Association’s president testified that some members’ ocean views would be blocked by the development which would lower the members’ property value. She further stated that the proposed development would place some of their recreational facilities in the shade until noon. After the Association rested, the developers orally moved to dismiss, stating that the motion was a bench trial equivalent to a motion for directed verdict.

The trial court dismissed the action finding that the appellants failed to establish that they were “an aggrieved or adversely affected party” as defined in section 163.3215(2), Florida Statutes (1995). The trial court further held that, even assuming the Association had standing, the developers had vested statutory and common law rights despite the attachment of conditions to the future construction of phases IV through VI in Resolution 93-2.

Determining whether a party has standing is a puré question of law to be reviewed de novo. See Putnam County Envtl. Council, Inc. v. Bd. of County Comm’rs of Putnam County, 757 So.2d 590 (Fla. 5th DCA 2000). Prior to 1985, the common law rule for standing applied to actions challenging a land use decision. Id. at 593. Under the common law rule, a party had to possess a legally recognized right that would be adversely affected by the land use decision in order to have standing to challenge that decision. Id.; see also Citizens Growth Mgmt. Coalition of West Palm Beach, Inc. v. City of West Palm Beach, 450 So.2d 204, 208 (Fla.1984). The 1985 adoption of section 163.3215, however, liberalized the standing requirements by providing a right to enforce a comprehensive plan to parties having more than a general interest. Putnam County, 757 So.2d at 593; Southwest Ranches Homeowners Ass’n v. County of Broward, 502 So.2d 931 (Fla. 4th DCA 1987) (stating that “this section liberalizes standing requirements and demonstrates a clear legislative policy in favor of the enforcement of comprehensive plans by persons adversely affected by local action”).

To establish standing under section 168.3215(2), a party must demonstrate that it is an “aggrieved or adversely affected party” who will “suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan.” As a remedial statute, section 163.3215 should be liberally construed to ensure standing for a party with a protected interest under the comprehensive plan who will be adversely affected by the local government’s actions. See Educ. Dev. Ctr., Inc. v. Palm Beach County, 751 So.2d 621 (Fla. 4th DCA 1999). The statute, therefore, gives citizens with adversely affected interests a significantly enhanced standing to challenge the consistency of development decisions with the local comprehensive plan. See Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191 (Fla. 4th DCA 2001).

Here, the Association alleged that the proposed development was inconsistent with its protected interests in density and intensity as limited under the 1993 comprehensive plan. At trial, the Association presented testimony of adverse effects to these interests if the development proceeded as approved. The Association’s president testified that members’ ocean views would be blocked by the development which would lower the members’ property values. She further stated that the proposed development would place some of the Association’s recreational facilities in the shade until noon. As an adjacent landowner, the Association has a more direct stake in the impact of the development than the general community. Under the liberalized standing requirements of section 163.3215, the Association, a group of property owners whose land adjoins the proposed development and stands to be directly affected by the alleged aspects of the development, has, therefore, shown standing to contest Resolution 95-82. Accordingly, the trial court erred in finding that the Association lacked standing to bring this action and dismissing its complaint for lack of standing.

Although the trial court erred in dismissing the Association’s complaint for lack of standing, the error was harmless. It is harmless error when, absent the error, the same result would have been reached. See Nat’l Union Fire Ins. Co. of Pittsburgh v. Blackmon, 754 So.2d 840 (Fla. 1st DCA 2000). Here, absent the finding that the Association lacked standing, the trial court correctly found that the developers were vested under section 163.3167(8) from complying with the County’s 1993 comprehensive plan.

We review the trial court’s interpretation of section 163.3167(8) de novo. See Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582 (Fla.2000); Agency for Health Care Admin. v. Wilson, 782 So.2d 977 (Fla. 1st DCA 2001). Section 163.3167(8) provides that: “Nothing in this act shall limit or modify the rights of any person to complete any development that has been authorized as a development of regional impact pursuant to chapter 380 or who has been issued a final local development order and development has commenced and is continuing in good faith.” When a court construes a statute, its goal is to ascertain legislative intent, and if the language of the statute under scrutiny is clear and unambiguous, there is no reason for construction beyond giving effect to the plain meaning of the statutory words. Aetna Cas. & Sur. Co. v. Huntington Nat’l Bank, 609 So.2d 1315, 1317 (Fla.1992). Applying that standard here, the language of section 163.3167(8) is clear and unambiguous and should be given its plain meaning. We hold that the phrase “and development has commenced and is continuing in good faith” does not modify the phrase “any development that has been authorized as a development of regional impact pursuant to chapter 380.” The disjunctive “or” separates the phrase “development that has been authorized as a development of regional impact” from the phrase “final local development order and development has commenced and is continuing in good faith.” Cf. Village of North Palm Beach v. Mason, 167 So.2d 721 (Fla.1964) (interpreting the phrase “holding a valid and existing franchise granted by the board of county commissioners of any county of this state in a given county” to not apply to “Every public utility” as it was separated by a comma and the disjunctive “or”). Although punctuation is the most fallible and least reliable indication of legislative intent, see Wagner v. Botts, 88 So.2d 611, 613 (Fla.1956), it should be noted that no comma or other punctuation mark exists after the phrase “or who has been issued a final local development order.” Under the rule of grammatical construction, a qualifying phrase is read as limited to the last item in a series when the phrase follows that item without a comma. See State ex rel. Owens v. Pearson, 156 So.2d 4, 6 (Fla.1963). Therefore, the “continuing in good faith” requirement is limited to local development orders. The dissent interprets the “continuing in good faith” phrase to apply to a DRI development as well as local development orders. To arrive at such an interpretation would require inserting a comma after “final local development order.” However, we are not permitted to add punctuation marks which the Legislature did not employ. See id.

The dissent’s interpretation of section 163.3167(8) would also render the statute’s reference to a DRI development order superfluous. A DRI development order is a “final local development order,” just as a building permit or zoning decision is. See § 380.06(15), Fla. Stat. (1995) (setting forth the procedure for local government to follow in issuing a DRI development order); § 163.3164(7), Fla. Stat. (1995) (defining “development order” as “any order granting, denying, or granting with conditions an application for a development permit”). If the “commenced and continuing in good faith” requirement is read to apply to both DRI and non-DRI development orders, then no reason exists to distinguish the two. The Legislature could have simply granted vested rights for any development “that has been issued a final local development order and development has commenced and is continuing in good faith.”

“[A]ll words in a statute should be construed so as to give them some effect, not so as to render them meaningless sur-plusage.” Fla. Police Benevolent Ass’n v. Dep’t of Agric. and Consumer Servs., 574 So.2d 120, 122 (Fla.1991); see also Hawkins v. Ford Motor Co., 748 So.2d 993, 1000 (Fla.1999) (stating that statutory interpretations which render provisions superfluous are disfavored). If the specific reference to DRI development orders in section 163.3167(8) is to be given effect, it must be read to create vested rights for DRI developments orders regardless of whether development has commenced or continued in good faith. Therefore, we reject such an interpretation which would render the reference to DRI as mere sur-plusage.

Furthermore, the legislative history of section 163.3167 supports our interpretation. In 1975, the Legislature created section 163.3167 and provided that “[njothing shall limit or modify the rights of any person to complete any development that has been authorized as a Development of Regional Impact pursuant to chapter 380.” See Ch. 75-257, § 4, at 799, Laws of Fla. In its creation of the vesting provision, the Legislature did not require that a DRI development must commence and continue in good faith for the developer to maintain its right to develop the DRI. In 1985, the Legislature added the phrase “or who has been issued a final local development order, and development has commenced and is continuing in good faith.” See Ch. 85-55, § 3, at 213, Laws of Fla. In this legislation, the Legislature included a comma after “local development order.” The inclusion of this comma suggests that the “continuing in good faith” requirement would apply to a DRI development as well. However, the very next year, the Legislature purposely deleted the comma from the statute. See Ch. 86-191, § 6, at 1415, Laws of Fla. This shows an intent that the good faith requirement should not apply to a DRI development. Accordingly, we conclude that upon attaining an authorized DRI development, a developer need not commence or continue development in order to retain its vesting rights under section 163.3167.

As the present case involves a development of regional impact, section 163.3167 must be read in pan materia with the requirements of section 380.06, Florida Statutes (1995). See State v. Fuchs, 769 So.2d 1006 (Fla.2000) (stating that statutes relating to the same or closely related subject should be read in pari materia); Miami Dolphins, Ltd. v. Metropolitan Dade County, 394 So.2d 981 (Fla.1981). Section 380.06 outlines the procedures for review and approval of a development of regional impact. Once approved as a DRI and a development order has been issued authorizing development, a project need not be subject to additional DRI review and approval under section 380.06 unless an amendment to the project involves a substantial deviation. § 380.06(19), Fla. Stat. (1995).

Section 380.06(19) provides for the local government to determine whether a proposed amendment to a DRI constitutes a substantial deviation. Here, the County specifically found in both the 1993 and 1995 resolutions that the amendments were not substantial deviations requiring further DRI review. On appeal, appellants do not challenge this determination. Because neither the 1993 nor the 1995 resolution involved substantial deviations, the changes did not require further DRI review.

As the amendments did not require further DRI review, the project did not lose its original authorization for DRI development in the 1982 resolution, which the 1993 and 1995 resolutions amended. Section 163.3167(8) specifically states that the developers have vested rights to complete “any development that has been authorized” as a DRI. By the plain meaning of the word “any,” vesting attaches once the original DRI development order authorizes development. This vesting would continue until the development was subjected to another DRI review. That is, non-substantial deviations to the original DRI development order would not cause loss of the vesting rights to the original development plan. Under section 380.06(19), a substantial deviation would lead to a new DRI review and a new authorization for DRI development. Therefore, with a substantial deviation, a developer would lose any vested rights in the previous development, and new vested rights would arise under section 163.3167(8) for the new DRI authorization.

Here, the developers did not lose any vesting rights to the original development plan because the 1993 and 1995 resolutions were non-substantial deviations. Furthermore, the 1982 development order authorized unconditional development of the project. The developers were not required to obtain future development orders to complete Phases III through VI. Therefore, we affirm the trial court’s finding that the 1993 and 1995 amendments did not limit or modify the developers’ statutorily protected vesting rights to the 1982 development plan.

The Association and the Attorney General cite section 163.3194(l)(a), Florida Statutes (1995), for the proposition that the 1995 resolution must comply with the County’s 1993 comprehensive plan. Section 163.3194(l)(a) states: “After a comprehensive plan, or element or portion thereof, has been adopted in conformity with this act, all development undertaken by, and all actions taken in regard to development orders by, governmental agencies in regard to land covered by such plan or element shall be consistent with such plan or element as adopted.” (emphasis added). This section only applies to land covered by the County’s 1993 comprehensive plan. As discussed above, section 163.3167(8) removes the vested 1982 development area from the requirements of the 1993 comprehensive plan. Therefore, section 163.3194(l)(a) does not apply in this situation. As such, the amended development order need not be consistent with the comprehensive plan. Accordingly, the trial court did not err in finding that the developers were vested, under section 163.3167(8), from complying with the County’s 1993 comprehensive plan.

We, therefore, affirm the trial court’s entry of final judgment in favor of the developers.

AFFIRMED.

BARFIELD, J., concurs; BOOTH, J., dissents with written opinion.

BOOTH, J.,

dissenting.

I must respectfully dissent from the majority’s proposed affirmance. KPM, Ap-pellee/developer, has failed to cite any statute, rule or case empowering the County to revive the expired 1982 DRI permit. Further, the developer did not present evidence of continuing good faith development. Fla. Stat. § 163.3167(8). On the contrary, the evidence is that the project was abandoned, both expressly by letter of KPM’s predecessor in interest, and implicitly due to the developer’s failure to pursue the project, leaving it dormant for more than eight years.

The original DRI permit, issued in 1982,, had an expiration date of June 8, 1992. After completing the first two phases of the project in 1984, the original developer, Edgewater Development Associates, Ltd., conducted no further development and went bankrupt that same year. The project sat dormant, essentially abandoned for eight years, until KPM, Appellee herein, acquired the property in 1992 and timely applied for an extension of the permit before the expiration date of June 8, 1992. However, KPM later decided to withdraw its application, and the permit expired. KPM subsequently applied for an extension of the original build-out date of the 1982 permit, despite the fact that the permit had lapsed.

At a public hearing before the Board of County Commissioners on December 29, 1992, the attorney for the appellant condominium association pointed out that an “extension” of the 1982 permit would actually operate as a revival of the expired permit, and that the County had no authority to revive a defunct permit. KPM was unable to offer any authority on which the County could rely to resurrect an expired DRI permit, and indeed no such authority exists. Nonetheless, in January 1993, the commission members decided to revive the expired permit, apparently under a “vesting” rationale.

The controlling state statute does not provide for revival of an expired DRI permit. The County’s authority to act on DRI permits derives from section 380.06, Florida Statutes, also known as the DRI statute. This statute requires the County to establish a termination date in any DRI development order, and it provides that the County may grant an extension of a DRI permit while the permit is in effect. However, there is no provision in the statute allowing for the revival of an expired development order, nor does any local ordinance or case law precedent empower the County to revive a permit once it has expired. Therefore, the action of the County in reviving the expired permit was ultra vires, and thus without legal effect.

The majority attempts to justify its rationale based on the absence of a comma in section 163.3167(8). A logical reading of that statute is that DEVELOPMENTS, whether “of regional impact pursuant to chapter 380” or pursuant to a “final local development order” must be commenced and continue in good faith in order to avoid compliance with subsequent changes in the law. To read the statute otherwise leads to absurd results, contrary to a basic axiom of statutory construction that an unreasonable conclusion be avoided. Allied Fidelity Ins. Co. v. State, 415 So.2d 109, 110-111 (Fla. 3d DCA 1982). The majority view would lower the standard for developments of regional impact, but subject developments pursuant to final local development orders to a good faith standard and continuity requirement.

Additionally, the majority’s argument is totally irrelevant because development cannot be revived under subsection (8). There is no provision in subsection (8) authorizing the revival of a development of any kind. This statute is intended to address the rights of persons . proceeding with development from being unfairly affected by subsequent changes in the law. Here, the project was abandoned for almost a decade and is not subject to review.

The last development was in 1984. The EAB company, formed by the mortgagee bank to act as substitute developer, filed with the Bureau of Condominiums a declaration that it had no intention of carrying out any further condominium development on the property. Indeed, no development took place between 1984 and 1992, when KPM purchased the property and withdrew its application for extension of the permit.

The County should have treated the development as abandoned. In failing to do so, the County misapplied the law. The developer did not meet the requirements of section 163.3167(8) for “vesting,” since the development was. not continuing in good faith so as to retain any rights under the expired permit.

This case aptly illustrates the dangers inherent in misapplying section 163.3167(8). Development on the project ceased in 1984, the project remained abandoned for at least eight years, the original permit expired, and over the course of some 20 years the intensity and density of the planned project changed significantly. By the majority’s view, these changes are allowed under the statute, without further DRI review and despite major changes in the local comprehensive plan. The majority’s holding will surely cause a considerable environmental impact and subject this coastal area to an unforeseen degree of development. Such a result is exactly what Florida’s DRI and comprehensive planning laws aim to avoid, and the majority’s decision in the present case will encourage further thwarting of our state’s land use laws, defeating their very intent. Thus, I agree with the Attorney General’s argument that KPM does not have “vested” rights pursuant to section 163.3167(8).

The County should have required KPM to apply for a new permit, to undergo DRI review for any further development of the property, and to comply with the current comprehensive plan. Therefore, I would reverse the decision of the Circuit Court.

      . The Association's complaint filed in this proceeding only challenged Resolution 95-82. Contrary to the dissent’s assertion, the Association could not and did not challenge the County’s decision in Resolution 93-2 to revive the 1982 DRI. The Association filed the instant proceeding under section 163.3215, Florida Statutes (1995), asserting only that Resolution 95-82 was inconsistent with the County's comprehensive plan. Section 163.3215 only permits the Association to challenge a development order on the basis that it is inconsistent with the comprehensive plan.
      In addition, the revival issue has previously been litigated before FLWAC in a separate proceeding. In January 1993, pursuant to section 380.07, Florida Statutes (1991), the Association appealed to FLWAC the Board of County Commissioners' January 1993 decision to revive the 1982 DRI via Resolution 93-2. FLWAC held that the Association lacked standing to appeal the resolution to FLWAC but also found that the DRI was not abandoned and that the County had the discretion to revive the 1982 DRI. Edgewater Beach Owners Ass’n v. Bd. of County Comm’rs

        of Walton County, No. LW-95-056 (FLWAC Oct. 24, 1995). This Court affirmed FLWAC’s final order on appeal. Edgewater Beach Owners Ass’n v. Bd. of County Comm’rs of Walton County, 694 So.2d 43 (Fla. 1st DCA 1997). As the Association elected to pursue litigation of Resolution 93-2 before FLWAC, they could not seek a remedy under section 163.3215 upon FLWAC's finding of lack of standing. Section 163.3215(4), Florida Statutes (1991), requires that the Association file a verified complaint with the County within 30 days of the alleged inconsistent action by the County. More than thirty days had elapsed since the County passed Resolution 93-2 before FLWAC dismissed the Association’s petition for lack of standing.
      More importantly, the Association did not argue below at trial in this proceeding that the County improperly revived the DRI; rather the Association merely argued that any changes to the original development order must comply with the comprehensive plan in effect at the time of the change. The Association also did not raise the revival issue in this appeal. Therefore, the issue of the County's improper revival of the 1982 DRI is not properly before this Court for review. See F.M.W. Props., Inc. v. Peoples First Fin. Sav. and Loan Ass’n, 606 So.2d 372 (Fla. 1st DCA 1992).

      . The County's determination that the amendments were not substantial deviations is reviewable only by FLWAC. See §§ 380.06(19)(f)6 and 380.07, Fla. Stat. (1995).

      . The majority holds that the Association has standing to sue pursuant to section 163.3125, Florida Statutes, a result with which I agree. However, I would also reverse the trial court on its holding that KPM has a vested statutory right in the development or the DRI. The court's opinion in Edgewater Beach Owners Association v. Board of County Commissioners of Walton County, 694 So.2d 43 (Fla. 1st DCA 1997), rested solely on the standing issue and does not support the majority here on the other issues.

      . KPM’s withdrawal of the application for extension is documented in a July 1992 letter from Shirl Williams, Administrative Supervisor for the Walton County Board of County Commissioners, to Doug Stowell of KPM, expressly acknowledging KPM’s withdrawal of the application to extend. The letter stated that the 1982 development order had expired and advised that KPM would have to reapply for a new permit, undergo DRI review for any further development of the property and comply with the current comprehensive plan.

      . The public hearing took place in two parts, the first being in December 1992 and the second in January 1993. Although a tape of the December 1992 part of the hearing appears in the record on appeal, no such tape or transcript of the January 1993 portion was provided.

      . Section 163.3167(8) provides as follows:
      (8) Nothing in this act shall limit or modify the rights of any person to complete any development that has been authorized as a development of regional impact pursuant to chapter 380 or who has been issued a final local development order and development has commenced and is continuing in good faith.

      . In State ex rel. Owens v. Pearson, 156 So.2d 4, 6 (Fla.1963), the court followed established rules of grammatical construction, that "following an enumeration in a series, a qualifying phrase will be read as limited to the last of the series when it follows that item without a comma or other indication that it relates as well to those items preceding the conjunction.” (emphasis added). First, section 163.3167(8) does not enumerate a series. Further, there is "other indication” that, by using the word "development” in each clause of the sentence, the Legislature intended “development has commenced and is continuing in good faith” to apply to a “development” of regional impact and a final local "development” order.

      . Moreover, Appellants pointed out at the December 1992 hearing that, under the local land development code, failure to continue in good faith to complete a project is considered abandonment of the project. Therefore, under local laws as well as under section 163.3167(8), the project should have been considered dead, and KPM should have been required to reapply for a permit .under the DRI statute. Additionally, the Florida Condominium Act, section 718.403, Florida Statutes, provides that a developer authorized to build a development in phases must build out the project within seven years of the time it records its declaration of condominium. Here, the declaration of condominium was recorded in June 1984, thus, under chapter 718 the deadline to complete the Edgewater project would have been June 1991.

      . As the Attorney General states in his Amended Motion for Rehearing, and/or For Certification:
      [A] local government' loses control of a DRI development order for a project when that development order and all extensions have expired. Local governments are without authority to consider any requested changes to the expired development order for the original project. Even if the local government still had authority to alter the original DRI development order, both this court and the local government erred in their interpretation of their authority by considering the project vested against application of the currently effective comprehensive plan.


text:
    Ronald E. ROGERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-2620.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2002.
    Ronald E. Rogers, pro se, petitioner.
    Robert A. Butterworth, Attorney General, and James W. Rogers, Senior Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

By amended petition, Ronald E. Rogers seeks a belated appeal of a judgment and sentence. Although a timely notice of appeal was originally filed and the appeal was docketed before this court as case number 1D01-3692, that appeal was dismissed when no response was received to the court’s order requiring payment.of the filing fee or the filing of an order of insolvency. We have therefore treated the amended petition as seeking reinstatement of the appeal in case number 1D01-3692, and in response to an order to show cause, the state indicates that it does not object to the granting of such relief. Accordingly, we grant the amended petition and reinstate petitioner’s appeal in case number 1D01-3692.

AMENDED PETITION GRANTED.

WEBSTER, VAN NORTWICK and PADOVANO, JJ„ concur.

      . Petitioner has requested that this court appoint counsel for purposes of the appeal, but the proper forum for determining whether petitioner is entitled to the services of appointed counsel is the lower tribunal. By separate order issued in case number 1D01-3692, we have relinquished jurisdiction to the trial court to consider whether petitioner qualifies for the appointment of counsel.


author: ORFINGER, R.B., J.

text:
    Rose MORALES, Petitioner, v. Richard SALAZAR, Respondent.
    No. 5D02-3151.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 2002.

      Howard D. Friedman of Heller & Friedman, P.A., Orlando, for Petitioner.
    Amy E. Goodblatt of Shepard, Filburn & Goodblatt, P.A., Orlando, for Respondent.
   ORFINGER, R.B., J.

Rose Morales asks this court to prohibit the circuit court of Seminole County, Florida from exercising jurisdiction over a petition to modify child custody filed by Richard Salazar, the father of their minor child. Morales contends that under the Uniform Child Custody Jurisdiction Act (UCCJA), the circuit court lacks subject matter jurisdiction to modify the prior custody determination made by a New York court. We agree that the trial court lacks subject matter jurisdiction to consider Salazar’s petition and issue the writ.

Prior to Morales and the child moving to Florida, the parties participated in litigation in the courts of New York, resulting in a custody order awarding sole custody of the child to Morales and granting visitation to Salazar. In 2001, Salazar, still a New York resident, filed a petition in the circuit court of Seminole County, seeking a custody modification and for sole parental responsibility to make educational decisions for the child. Morales filed an answer and counter-petition, followed some months later by a motion to dismiss, alleging that the circuit court lacked subject matter jurisdiction.

In part, Morales’s contention that the courts of Florida lack subject matter jurisdiction to consider Salazar’s petition is based on section 61.133(1), Florida Statutes (2001), which provides: “If a court of another state has made a custody decree, a court of this state shall not modify that decree unless: (a) [i]t appears to the court of this state that the court which rendered the decree does not now have jurisdiction ... or has declined to assume jurisdiction ...; and (b) [t]he court of this state has jurisdiction.” That section implements the UCCJA policy forbidding the courts of one state from modifying the custody decree of another state unless the original state no longer has, or has declined, to exercise jurisdiction. Yurgel v. Yurgel, 572 So.2d 1327, 1329 (Fla.1990). The UCCJA binds the courts of Florida and the courts of every other state where it has been adopted, including New York. See N.Y. (Dom.Rel.) Law §§ 75-78 (McKinney 2001). The purpose of the UC-CJA is “to prevent interstate competition and conflicts” about custody disputes among the various states. Yurgel, 572 So.2d at 1329 (quoting Padgett v. Pettis, 445 So.2d 633, 635 (Fla. 1st DCA), cause dismissed 450 So.2d 487 (Fla.1984)).

Because Salazar still resides in New York, the UCCJA mandates that the courts of New York have exclusive jurisdiction to consider the modification of the existing New York custody determination, absent exceptional circumstances not present here. New York’s continuing jurisdiction is premised on section 76-a of McKinney’s Consolidated Laws of New York Annotated, which provides in relevant part:

[A] court of [New York] which has made a child custody determination ... has exclusive, continuing jurisdiction over the determination until:
(a) a court of this state determines that neither the child, the child and one parent, nor the child and a person acting as a parent have a significant connection with this state and that substantial evidence is no longer available in this state concerning the child’s care, protection, training, and personal relationships; or (b) a court of this state or a court of another state determines that the child, the child’s parents, and any person acting as a parent do not presently reside in this state.

N.Y. (Dom.Rel.) Law § 76-a.l.(a)-(b) (McKinney 2001). Section 61.133 of the Florida Statutes and section 76-a of the New York law, when read in concert, give the courts of New York jurisdiction to determine custody of the child and prohibit the courts of Florida from modifying or altering the New York custody determination. As long as Salazar continues to reside in New York, the courts of that state will continue to have jurisdiction to determine and modify custody until such time as New York decides to relinquish jurisdiction.

Salazar argues that Morales’s motion to dismiss is an attempt to delay the action. He claims that it is “disingenuous” of Morales to have litigated the case in Florida for more than a year, including filing a counter-petition, only to plead lack of subject matter jurisdiction after receipt of a trial notice. That may be true, but as Salazar concedes, the lack of subject matter jurisdiction can be raised at any time, Department of Revenue v. Daystar Farms, Inc., 803 So.2d 892 (Fla. 5th DCA 2002), and such jurisdiction cannot be created by waiver, acquiescence, or agreement of the parties. See State v. Yaros, 728 So.2d 1201 (Fla. 2d DCA 1999).

Our conclusion that the courts of Florida lack jurisdiction to consider Salazar’s petition does not deprive Salazar of an opportunity to modify the New York custody order. It only means that Salazar must seek to modify the order in the courts of New York, his state of residence. Our opinion in no way affects his right to do so.

PROHIBITION GRANTED.

SHARP, W., and SAWAYA, JJ„ concur.

      . §§ 61.1302-.1348, Fla. Stat. (2001). Effective October 1, 2002, the UCCJA was amended as the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) and renumbered, sections 61.501-542, Florida Statutes (2002). Because Salazar's petition for modification was filed prior to October 1, 2002, the UCCJA, rather than the UCCJEA, applies. See § 61.542, Fla. Stat. (2002).

      . During the pendency of the New York litigation, Morales and the child moved to Florida, while Salazar continued to reside in New York.

      . Section 61.133 was repealed effective October 1, 2002, and replaced with section 61.516, Florida Statutes, which provides that a court of this state may not modify a child custody determination made by another state unless the court of this state has jurisdiction to make an initial custody determination and that court of the other state determines that it no longer has exclusive jurisdiction or that a court of this state would be a more convenient forum, or a court of this state or another state determines that the child, the child's parents, and any other person acting as a parent do not presently reside in the other state.

      . Additionally, the Federal Parental Kidnapping Prevention Act (PKPA) (28 USCA § 1738A), provides that the jurisdiction of a court of a state, which has made a child custody or visitation determination, continues as long as the requirements of the PKPA are met and such state remains the state of residence of the child or of any contestant.


author: PALMER, J.

text:
    James Everett GENTILE, Petitioner, v. OFFICE OF the PUBLIC DEFENDER, etc., Respondent.
    No. 5D02-3253.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 2002.
    James Everett Gentile, Daytona Beach, pro se.
    No Appearance for Respondent.
   PALMER, J.

James Everett Gentile seeks a writ of mandamus compelling the Office of the Public Defender to provide him with a copy of his criminal case file, and further requests that this court issue an opinion stating the amount per page that would be considered adequate compensation for the copying of portions of the file. We deny the petition as being legally insufficient.

Missing from the petition is any allegation that Gentile has previously made a request or demand upon the Office of the Public Defender with regard to the documents he seeks. See Florida Pharmacy Ass’n, Inc. v. Strong, 604 So.2d 529 (Fla. 1st DCA 1992) (holding that one seeking mandamus to compel a public official to perform a duty must first make an express, distinct demand for performance). In addition, Gentile’s request for this court to issue a written opinion as to the amount per page that would be considered adequate compensation for copying service is inappropriate, since mandamus relief is limited to compelling the performance of a ministerial act. See Fair v. Davis, 283 So.2d 377 (Fla. 1st DCA 1973).

PETITION DENIED.

HARRIS and ORFINGER, JJ., concur.


author: PER CURIAM. SHARP, W., J.,

text:
    BOARD OF TRUSTEES OF the ORLANDO POLICE PENSION PLAN, et al., Appellants, v. Sue Carroll LANGFORD, et al., Appellees.
    No. 5D02-91.
    District Court of Appeal of Florida, Fifth District.
    Dec. 20, 2002.

      James B. Loper, Tampa, for Appellants.
    Charles R. Trulock, Jr., Orlando, for Appellees.
   PER CURIAM.

The Board of Trustees of the Orlando Police Pension Plan (“The Board”) and G. Michael Miller, Plan Administrator of the City of Orlando Police Pension Plan, appeal from an order rendered by a trial judge in a post-dissolution marriage proceeding which required the Plan Administrator to pay one-half of a former employee’s pension benefits to his former spouse as part of a plan of equitable distribution. We reverse, but certify a question as one of great public importance to the Florida Supreme Court.

The former employee in this case, Thomas Langford, and his wife, Sue, were divorced on April 11,1989. The final judgment of dissolution required him to pay her $350.00 per month in permanent alimony and it incorporated by reference a settlement agreement entered into by the parties. With regard to the pension, the settlement agreement provided:

5. RETIREMENT PENSION. The parties acknowledge that the Husband is vested in a Retirement Plan through the Orlando Police Department and that said Retirement Plan is a marital asset subject to equitable distribution between the parties. Accordingly, the parties agree that the Wife shall be entitled to fifty (50%) percent of the value of the Retirement Plan as of the date of the dissolution of marriage and that through the entry of a Qualified Domestic Relations Order, fifty (50%) percent of the Husband’s retirement account balance at the date of the dissolution of marriage shall be placed in separate account in the name of the Wife to be invested and administered separately from that of the Husband. At the Wife’s option she may elect to take her share in a lump sum upon written notification to the plan administrator or may allow her portion of the retirement plan to be administered according to the plan separately from the funds of the Husband to be distributed to her at such time as the Husband is entitled to distribution from the plan.

The former wife waited until Langford retired and then moved for entry of a Qualified Domestic Relations Order (QDRO) pursuant to the settlement agreement. The court entered an apportionment order requiring the administrator of the pension plan to make monthly payments to the former wife of an amount equal to her fifty percent interest in the accrued benefits as of April 11, 1989. It recognized the payments were being made as part of “the equitable distribution of marital assets” between the parties.

Langford appealed, arguing the settlement required a one-time payment of one-half of the yearly pension benefits, payable over twelve months, and not annual payments. This court affirmed, requiring ongoing payments every year. Langford v. Langford, 792 So.2d 473 (Fla. 5th DCA 2001).

On December 18, 2000, the Board and Plan Administrator petitioned the trial court to clarify or dissolve the apportionment order. They argued, as they do here, that under Florida and federal law, QDRO’s cannot be used to force direct payment to a non-participating spouse of a part of a participating spouse’s municipal pension benefit as part of an equitable distribution plan. They point to section 15 of the city’s pension plan and section 185.25, Florida Statutes, which apply to this pension plan.

Section 15 provides that pension payments are not assignable or subject to garnishment, execution, levy or attachments, but are subject to court orders to pay child support or alimony. Equitable distribution orders are not expressly included:

(1) Except as provided in subsections (2) and (3) of this section, none of the moneys, [sic] pensions, or other benefits mentioned in this retirement plan shall be assignable, either in law or in equity, or be subject to execution, levy, attachment, garnishment, or other legal process.
(2) The right of a member to a pension, to the return of accumulated member contributions, or to any other benefit under the provisions of this retirement plan shall be subject to an award by a court of competent jurisdiction pertaining to alimony or child support, if so provided under applicable Florida law. If an award or order requires the retirement plan to withhold payment of a pension, accumulated member contributions, or other benefits from the person to whom it is due, or requires the retirement plan to make payment to a spouse, former spouse or child, the withholding or payment provisions of the award shall be effective only against the amounts as they become payable to the individual being paid the pension or other benefit. These limitations shall not apply to accumulated member contributions of an individual who is neither a participant or a vested former participant, (emphasis supplied)

Section 185.25 makes the following exempt from tax and execution:

For any municipality, chapter plan, local law municipality, or local law plan under this chapter, the pensions, annuities, or any other benefits accrued or accruing to any person under any municipality, chapter, plan, local law municipality, or local law plan under the provisions of this chapter and the accumulated contributions and the cash securities in the funds created under this chapter are exempt from any state, county, or municipal tax of the state, and shall not be subject to execution or attachment or to any legal process whatsoever and shall be unassignable, (emphasis supplied)

The trial court ruled that Langford had waived the anti-alienation provisions of the pension plan and section 185.25, Florida Statutes, by agreeing in the settlement to divide the plan as part of an equitable distribution of his and his wife’s marital assets, and by his agreement to entry of an appropriate apportionment order. This appeal followed.

The leading case on using a QDRO to force direct payment to a spouse of a portion of a municipal pension plan as part of the parties’ equitable distribution of marital assets is Board of Pension Trustees of the City General Employees Pension Plan v. Vizcaino, 635 So.2d 1012 (Fla. 1st DCA 1994). As in this case, the plan in Vizcaino was created by the Legislature and it also contained an anti-alienation provision. As part of an equitable distribution of the parties’ assets, the trial court entered a QDRO which required the municipal employer to pay the former wife a percentage of the former husband’s net retirement pension benefits. The Vizcai-no court agreed with the employer that it could not be ordered to pay the former wife pension benefits directly in order to achieve an equitable distribution of marital assets. It expressly rejected the argument that the order could be upheld under Florida law under section 61.1301, since that statute authorizes the use of income deduction orders to collect alimony and child support. It also rejected the argument that the anti-alienation provisions of the city’s plan had been implicitly repealed by the enactment of a variety of later statutes, including those under chapter 61, which establish that pensions are marital property if earned during the course of a couple’s marriage.

Accordingly, the Vizcaino court reversed the trial court’s order which required direct payment to the former wife. However, it agreed the assets in the plan were marital and subject to equitable distribution, although they could not be transferred to the former wife. It concluded the former wife was not completely without a remedy. It stated the former husband could be ordered to pay the former wife her allotted portion of the pension each month, upon receipt, and that the order was enforceable by contempt. Accord Weber v. Weber, 783 So.2d 333 (Fla. 1st DCA 2001) (pension of former husband who was employed as city fireman was not subject to a qualified domestic relations order in order to effect equitable distribution).

Vizcaino has been followed by the Second District Court of Appeal. See Edwards v. Edwards, 819 So.2d 837 (Fla. 2d DCA 2002) (a QDRO could not be used to force direct payment to a nonparticipating spouse of a portion of a spouse’s municipal pension benefits in order to achieve an equitable distribution). It has also been cited with approval by the Second and Third District Courts of Appeal for the general proposition that income deduction orders are not available to achieve an equitable distribution of marital assets. See Motil v. Motil, 771 So.2d 1251 (Fla. 2d DCA 2000) (income deduction orders cannot be used to achieve equitable distribution of pension); Silversmith v. Silversmith, 797 So.2d 653 (Fla. 3d DCA 2001) (income deduction order garnishing husband’s wages reversed when used to effectuate equitable distribution); Colligan v. Colligan, 759 So.2d 688 (Fla. 3d DCA 2000) (income deduction order cannot be used to effectuate equitable distribution). This court has cited Vizcaino only tangentially, noting in one case that the order under review did not violate Vizcaino. See Abernethy v. Fishkin, 638 So.2d 160 (Fla. 5th DCA 1994) (noting that order entered by trial court did not purport to assign federal FSI benefits to wife, in violation of Vizcaino). By contrast, the Fourth District in McDonald v. McDonald, 731 So.2d 132 (Fla. 4th DCA 1999), held that the trial court was entitled to enter an order which was the “functional equivalent” of a QDRO to effect an equitable distribution of a municipal pension, without any reference to Vizcaino. However, there is no indication that the pension in McDonald contained anti-alienation provisions and the pension plan agreed to honor an alternative order.

We reluctantly agree with Vizcaino that we are not authorized in the construction of a statute to create exceptions not specifically made. The special act creating the pension and section 185.25 purport to make the benefits wholly “unassignable,” even to spouses, unless the award is for alimony or child support. We are bound by the plain language of the statute and special act. Accord Department of Administration v. Albritton, 489 So.2d 228 (Fla. 5th DCA 1986); McClung v. McClung, 465 So.2d 637 (Fla. 2d DCA 1985); Buzzard v. Buzzard, 412 So.2d 388 (Fla. 2d DCA), rev. denied and rev. dismissed, 419 So.2d 1195 (Fla.1982). However, these provisions may be irreconcilable with Florida’s equitable distribution laws. See Alvarez v. Board of Trustees of City Pension Fund for Firefighters and Police Officers, 580 So.2d 151 (Fla.1991).

We note that a majority of other state courts have found like anti-assignment or alienation provisions inapplicable to bar equitable distribution of pension benefits, or invalid to the extent they conflict with equitable distribution laws, like Florida’s, which make such pension assets marital and require equitable distribution to the marital parties. Section 61.075(5)(a)4., Florida Statutes (2000) defines marital assets and liability to include:

All vested and nonvested benefits, rights and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation and insurance plans and programs.

The crux of the out-of-state decisions is the logical conclusion that no matter how broadly stated, anti-alienation provisions are spendthrift protections designed to bar claims made by creditors but not claims made by a spouse in a community property state or an equitable distribution state. A spouse or former spouse should not be treated as the equivalent of a creditor in a dissolution proceeding, but rather as the true owner of his or her portion of pension benefits. Indeed that is how the majority of pension plans are dealt with by the courts in Florida. Why should municipal or local law pensions be treated differently?

Because the Florida Supreme Court has not had an opportunity to address this issue and because it is a recurring problem in resolving family law cases, we certify the following question as one of great public importance:

DO THE EXEMPTIONS FROM ALIENATION, ASSIGNMENT AND EXECUTION IN SECTION 185.25, FLORIDA STATUTES, BAR A COURT FROM ORDERING DIRECT PAYMENTS FROM A MUNICIPAL PENSION PLAN TO A FORMER SPOUSE AS PART OF AN EQUITABLE DISTRIBUTION OF MARITAL ASSETS ORDERED BY A DISSOLUTION COURT OR PROVIDED FOR IN A MARITAL SETTLEMENT AGREEMENT?

Accordingly, we reverse and remand this cause to the trial court. Being a court of equity, it is entitled to devise a remedy through other means to safeguard the former wife’s interest in the pension which is rightfully hers, and to insure she receives the funds which are hers. It may be possible to construct a decree which requires payment of the pension funds to a trustee to be held in a joint account for the parties’ joint benefit, and requires the trustee to distribute the funds when received to the party entitled to them. Or perhaps the former husband could be required to post a bond with the court to ensure the former wife receives her share of the funds on a timely basis. Failing that, the court is also free to reconsider the total equitable distribution and alimony scheme contemplated by the original decree and settlement, since a key portion of the total plan cannot now be achieved. However, these are cumbersome devices and costly. There ought to be a better remedy.

REVERSED and REMANDED; QUESTION CERTIFIED.

THOMPSON, C.J., and SAWAYA, J., concur.

SHARP, W., J., concurs in part and dissents in part with opinion.

SHARP, W., J.,

concurring in part and dissenting in part.

Having written the foregoing opinion with which I agree, I now depart by way of dissent because I think this case can be distinguished from Vizcaino on the ground that the former husband in this case waived his statutory exemption under section 185.25 and the plan, by entering into a marital settlement agreement in which he expressly agreed the pension was a marital asset and that it should be distributed to the former wife by various means, including the one sought to be implemented by the trial court.

The Board and Plan Administrator argue that the former husband was barred from waiving his exemptions under the statute as part of the settlement agreement.

I disagree. Florida recognizes that the right to contract is limited by public policy and if a private agreement contravenes an established interest of society, or has a tendency to be injurious to public welfare, it is void as against public policy. Coastal Caisson Drill Co. v. American Caves. Corp., 523 So.2d 791 (Fla. 2d DCA 1988). Additionally, Florida law recognizes that an individual cannot waive the protection of a statute that is designed to protect both the public and the individual. Id. at 793. Relying on these principles, the Florida Supreme Court refused to enforce an agreement providing for waiver of a homestead exemption because the waiver was against public policy. See Sherbill v. Miller Mfg. Co., 89 So.2d 28 (Fla.1956) (homestead exemption could not be waived by debtor as part of consideration for loan which did not involve exceptions set forth in constitution; court refused to enforce waiver on public policy grounds).

But, a waiver in favor of a former spouse to implement the distribution of marital assets is not against public policy of the state. Section 61.075 clearly designates this pension as a marital asset, ie., the former wife’s property. And it also provides that the judgment of dissolution shall have the effect of a duly executed instrument of conveyance. § 61.075(4), Fla. Stat. There is no public policy I am aware of that prevents a court from effectively transferring possession of an asset from a person who does not own it, to one who does under equitable circumstances. See § 61.075(9), Fla. Stat. In my view, the purpose of similar statutory or constitutional exemptions is to protect not only the employee but also his or her family. See, e.g. Spadaro, 115 Misc.2d 494, 454 N.Y.S.2d 374; D’Avignon v. Graham, 113 N.M. 129, 823 P.2d 929 (1991). Thus, I conclude Florida public policy does not bar a waiver of the statutory exemption when executed in favor of a spouse, as part of a plan of equitable distribution of marital assets.

Myers v. Lehrer, 671 So.2d 864 (Fla. 4th DCA), rev. denied, 678 So.2d 1287 (Fla.1996) lends support to this conclusion. Myers involved a marital settlement agreement which required the sale of the parties’ marital residence and provided that “the Husband shall satisfy any and all outstanding judgments pending against him from his share of the proceeds received from the sale of the marital property.” Id. at 865. At the time of the judgment of dissolution, the former husband had two outstanding recorded judgments against him totaling more than $55,000.00. Following the sale of the marital residence, the former husband refused to pay off the judgments and claimed the proceeds were protected by his constitutional homestead exemption. The trial judge ordered him to pay the judgments out of the proceeds. On appeal, he argued his waiver of his homestead exemption in the settlement was invalid.

The fourth district disagreed on the ground that the party to be benefitted by the waiver in Myers was not a “hard creditor,” and the waiver served the purpose of resolving the financial matters of the parties’ former marital relationship. The court concluded: “To allow appellant in this case to disavow the clear language of his agreement incorporated in the divorce decree is to permit the homestead exemption to be an instrument of dishonesty.” Id. at 866.

Similarly in this case, if the former husband is permitted to disavow his agreement incorporated in his divorce decree, it permits him to use the exemption in the pension statute as an instrument of dishonesty. A waiver of the exemption in favor of a dependant, to enable a transfer of assets belonging to the former spouse to that spouse, does not violate the public policy of this state, particularly since Florida expressly provides for equitable distribution of pension benefits as marital assets to the respective spouses, and thus it should be upheld.

      . Query whether this is an illusory remedy. The process is so costly and time-consuming as to make it almost an illusionaiy remedy particularly in cases involving relatively small sums due on a monthly basis. In this case, the former wife was entitled to receive $370.76 per month when the first monthly retirement benefit payment' was actually made to the former husband. Further, the assumption that the contempt process is available to enforce an award of equitable distribution is a leap of faith. Hertrich v. Hertrich, 643 So.2d 115 (Fla. 5th DCA 1994); Veiga v. State, 561 So.2d 1335 (Fla. 5th DCA 1990).

      . Haynes v. Haynes, 148 Ariz. 191, 713 P.2d 1249 (Ct.App.1984) (police pension plan benefits were community property, subject to division, despite anti-alienation statute; anti-alienation provisions were intended to protect against creditors and not to preclude owner wife from asserting claim to community property); Foley v. Foley, 1997 WL 707104 (Conn.Super.Ct.1997) (unreported) (transfer of pension benefits to nonemployee spouse is not prohibited by anti-alienation clause); Golden v. City of Dover Police Pension Administrator, 1999 WL 33100137 (Del.Fam.Ct.1999) (unreported) (police pension plan exempted from ERISA was subject to equitable distribution, despite anti-alienation provisions; former wife is not a creditor, but an alternative payee or co-owner); In re Marriage of Hackett, 113 Ill.2d 286, 100 Ill.Dec. 790, 497 N.E.2d 1152 (1986) (anti-alienation provisions were to protect firefighters and their beneficiaries from creditors, and did not prevent division of benefits between divorcing parties); In re Marriage of Sedbrook, 16 Kan.App.2d 668, 827 P.2d 1222 (1992) (anti-assignment or anti-alienation provisions of fireman's pension did not preclude award of benefits as equitable distribution); Prince George’s County v. Burke, 321 Md. 699, 584 A.2d 702 (1991) (spouse was co-owner of benefits under plan and was not subject to anti-alienation provisions); Lindner v. Lindner, 137 Mich.App. 569, 358 N.W.2d 376 (1984) (taking pension into account in arriving at equitable distribution did not violate statute that exempts teacher’s pension plan from execution, garnishment, attachment, or other legal process protects employee from creditors’ claims); Spadaro v. New York City Police Department Pension Service, 115 Misc.2d 494, 454 N.Y.S.2d 374 (N.Y.Sup.Ct.1982) (pension fund was required to respect interest in pension awarded wife upon dissolution of marriage, despite anti-alienation provision applicable to pension; exemption did not apply to equitable distribution upon dissolution); Erb v. Erb, 1993 WL 264806 (Ohio Com.Pl.1993) (unreported) (anti-alienation statutes do not bar retirement benefits from being divided in a divorce proceeding; parties do not have debtor/creditor relationship and pension rights are co-owned, not "owned” by one party to the other); Rice v. Rice, 762 P.2d 925 (Okla.1988) (anti-assignment statute protects member's benefits from creditors, not from inclusion in marital estate for purposes of equitable distribution); Collida v. Collida, 546 S.W.2d 708, 710 (Tex.Civ.App.1977) (spendthrift statute prohibiting assignment of benefits did not apply to division of community assets; provision was intended to protect against creditors, and wife was not creditor or assignee of husband upon dissolution). See also Annotation, Employee Retirement Pension Benefits as Exempt from Garnishment, Attachment, Levy, Execution, or Similar Proceedings, 93 A.L.R.3d 711 (1979).

      . See McMahan v. McMahan, 567 So.2d 976 (Fla. 1st DCA 1990).


author: MAY, J.

text:
    Charles WILLINGHAM, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D00-4339, 4D01-4758.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.
    Carey Haughwout, Public Defender, and Benjamin W. Maserang, Assistant Public Defender, West Palm Beach, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Sue Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his sentences in two cases, raising two issues. We find the issue concerning his resentencing on the two misdemeanor charges worthy of a reversal. We affirm the trial court’s application of the two hundred and thirty three (233) days time served in all other respects.

The defendant pled guilty to the sale and possession of cocaine after a jury conviction in another case for battery on a law enforcement officer, trespass, and possession of marijuana under twenty grams. During the sentencing hearing, the State asked for a total sentence of twelve years. Defense counsel asked for county jail time on the cocaine charges, but agreed that the sentences in the two cases were to run consecutively “as part of the plea.”

The trial court sentenced the defendant to seven years on the battery on a law enforcement officer charge, and 233 days time served on the two misdemeanor charges. The court then sentenced the defendant to five years each 'on the sale and possession charges to run concurrent to each other, but consecutive to the seven year sentence. The court instructed the defendant to step over to be fingerprinted and continued with his docket.

It is unclear how much time passed and whether the defendant ever left the courtroom. Nevertheless, the case was recalled sometime later, when the State advised the court that the seven year sentence on the battery on a law enforcement officer charge exceeded the possible maximum sentence of five years. The State then asked the court to resentence the defendant to five years on the battery charge and change the 233 days time served to one year county jail for each misdemeanor charge to run consecutively. The court agreed and resentenced the defendant. The defendant asked to withdraw his plea, but the court had the defendant removed and resentenced him in his absence.

The defendant argues that the trial court erred in resentencing him from time served on the two misdemeanor charges to one year each to run consecutively. He submits that his sentencing had come to an end and he had actually completed his sentence before the trial court recalled the case. Thus to resentence him violates the Double Jeopardy Clause. We agree.

“[W]here a sentence has already been served, even if it is an illegal sentence, the court lacks jurisdiction and would violate the Double Jeopardy Clause by resentencing the defendant to an increased sentence.” Sneed v. State, 749 So.2d 545, 546 (Fla. 4th DCA 2000). As in Sneed, the defendant had actually served his sentence on the two misdemeanor charges upon completion of the sentencing hearing. The trial court properly corrected the illegal seven year sentence on the battery on a law enforcement officer charge. But, the court ran afoul of the Double Jeopardy Clause when it increased the sentence on the two misdemeanors from 233 days time served to consecutive one year sentences in an attempt to make up the two years it lost in reducing the seven year sentence on the battery charge.

The sentence is reversed on the two misdemeanor charges and the case is remanded to the trial court to vacate the consecutive one year sentences and reinstate the original 233 days time served sentence. We affirm on the second issue raised by the defendant concerning the extent to which the 233 days time served is applied to the other consecutive sentences. Daniels v. State, 491 So.2d 543 (Fla.1986).

GUNTHER and FARMER, JJ„ concur.


author: WARNER, J.

text:
    D.W.G., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D01-701.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.

      John R. Cook, Okeechobee, for appellant.
    Crystal Y. Yates-Hammond, Fort Pierce, for appellee.
   ON MOTION FOR REHEARING

WARNER, J.

We withdraw our previously issued opinion and substitute the following in its place.

The father appeals an order adjudicating his two minor sons dependent based upon the trial court’s findings of sexual abuse of one child and acts of domestic violence which were harmful to both children and constituted abuse. The father claims he was denied procedural due process due to the numerous delays during the proceedings. He also alleges that the court erred in admitting unreliable child hearsay statements, that it improperly restricted cross-examination, and that its findings regarding domestic violence were insufficient to constitute abuse. Finally, he alleges that the Department of Children and Family Services (“DCF”) withheld damaging information regarding its investigation, the revelation of which should have entitled him to a new trial. We conclude that the trial court did not err in any of these matters and affirm.

During the father and mother’s twelve year relationship, the father verbally abused and threatened physical abuse against the mother. The mother was depressed and addicted to pain medication, resulting in several brushes with the law. When they separated, the mother obtained a domestic violence injunction against the father and retained custody of the children. After the separation, the father was accused of sexually abusing his new girlfriend’s daughter, prompting DCF to interview his two sons. DCF concluded, however, that there was no present danger to the children.

The criminal charges of sexual abuse were investigated and remained pending. Over a year later the investigation was revived. During that year, the father had obtained custody of his sons from the mother by fabricating a story that he was dying of cancer. Based upon the criminal investigation against the father, the potential risk to the children, and the parents’ failure to provide safe living conditions for the children, DCF filed a petition to declare the sons dependent as to both parents in 1998. The children were placed with the mother provided she remain at a domestic violence shelter. The father objected based upon the mother’s criminal history and addictions.

The youngest child was interviewed several times by various people, including a caseworker for the Children’s Home Society and an elementary school teacher who lived at the shelter where the mother stayed and assisted in taking care of the children. Each related statements by the child revealing sexual abuse by the father. A child psychologist also interviewed the children and father. Based upon his interviews, the psychologist could not conclusively determine whether the father had in fact sexually abused the children. He did conclude that while both parents had major shortcomings, the father was better suited to care for the children if the criminal charges against him were dropped.

Shortly after the petition was filed the mother consented to the allegations contained in the dependency petition, and the court adjudicated the children dependent as to the mother. The father contested the allegations, and despite the fact that the petition was filed in 1998, the adjudicatory hearing was not conducted until January of 2001. Two judges recused themselves from these contentious proceedings, and many continuances were requested by both sides. After a full evidentiary hearing, the trial court found credible evidence existed that the father committed sexual acts only on the younger child and that these acts constituted abuse. The court further found the father committed acts of domestic violence against the mother that were harmful to both children. Based upon these findings, the court adjudicated the children dependent as to the father, which the father appeals.

The delay in setting the adjudicatory hearing underlies the father’s first issue on appeal in which he claims that he was denied due process. However, the record reveals that the trial court attempted to set and expedite the dependency hearing several times, only to have either the Department or the father move for a continuance in order to adequately prepare the case. The father did not raise an objection to the delay until July of 2000. After that, he moved to recuse two judges and his counsel sought to withdraw, further delaying the final hearing until January 2001. Although section 39.408(2)(a), Florida Statutes (1997), provides that “[t]he adjudicatory hearing shall be held as soon as practicable after the petition for dependency is filed,” it also allows for reasonable delay for purposes of investigation and preparation for trial. We have previously held, moreover, that a parent’s acquiescence to continuances suspends the time limitations until the parent demands the court to set a trial date. See B.B. v. Dep’t of Children & Family Servs., 731 So.2d 30, 36 (Fla. 4th DCA 1999). As the father acquiesced to the delays in this case, he has not shown that he was denied due process.

At the adjudicatory hearing, the father objected to the admission of the younger child’s hearsay statements of sexual abuse on the ground that DCF failed to prove the reliability of the statements as required by section 90.803(23). The court held a hearing to determine whether the circumstances surrounding the statements provided “sufficient safeguards of reliability.” § 90.803(23)(a)(l). It made findings, supported by specific facts, that the child’s statements to the caseworker and school teacher were reliable.

In State v. Townsend, 635 So.2d 949, 954 (Fla.1994), the supreme court emphasized the trial court’s responsibility in ensuring that child hearsay statements satisfy a strict standard of reliability before admitting them as substantive evidence. The trial court must make findings that satisfy two criteria: “(1) the source of the information through which the statements was reported must indicate trustworthiness; and (2) the time, content, and circumstances of the statement must reflect that the statement provides sufficient safeguards of reliability.” Id. at 954. These findings must be specific to the case. Id. Mere recitation of the statutory requirements is insufficient, and without such findings, this court cannot determine whether the trial court abused its discretion in finding the statements reliable. See Hopkins v. State, 632 So.2d 1372, 1377 (Fla.1994).

The trial court complied with these directives. Its findings detailed specific facts, to support both Townsend criteria. The father’s main complaints on appeal, neither of which was raised at trial, are (1) that the child was interviewed numerous times by the caseworker, which could have affected the child’s ability to actually recall what occurred, and (2) that at the hearing, the child had no recollection of speaking to the school teacher. Not only were these arguments not preserved for appeal, but they are without merit. As to the taint of multiple interviews, this issue was raised and considered during the hearing on the admissibility of the hearsay statements. Although the father argues that the trial court did not consider the child psychologist’s testimony with respect to the reliability of the statements, the father failed to present this evidence during the hearing to determine reliability. As to the father’s reliance on the child’s inability to recall his conversation with the caretaker, this is irrelevant to determining reliability. Hearsay statements do not need to be consistent with a child’s testimony at trial in order to be admissible. See Dep’t of Health & Rehabilitative Servs. v. M.B., 701 So.2d 1155, 1160 (Fla.1997). We conclude that the trial court did not abuse its discretion in admitting the child hearsay statements.

Other evidentiary rulings challenged by the father include the court’s restriction of his cross-examination of several DCF witnesses. A trial court is afforded broad discretion in limiting cross-examination. See Slocum v. State, 757 So.2d 1246, 1250-51 (Fla. 4th DCA 2000). Moreover, cross-examination is limited to the subject matter addressed during direct examination and the witnesses’ credibility. See generally Jenkins v. Wessel, 780 So.2d 1006, 1008 (Fla. 4th DCA 2001). The court did not abuse its discretion in limiting cross-examination of the witnesses in this case, because the questions asked were either hearsay, irrelevant, or beyond the scope of direct examination. Moreover, the information was obtained later through other witnesses or through the father calling those witnesses in his case-in-chief.

The father also challenges the trial court’s finding that the father engaged in acts of domestic violence which harmed the children. He contends that the evidence did not demonstrate that the children were aware of the violence occurring. See D.H. v. Dep’t of Children & Families, 769 So.2d 424, 427 (Fla. 4th DCA 2000). He apparently believes that the children must actually see violence to satisfy this criteria. We disagree. Children may be affected by domestic violence and may be aware of the violence, even if they do not see it occur with their own eyes. There was ample evidence in this case that the children were in the house when the father was abusing the mother. The mother testified that she heard the children crying when the father took her in the bathroom to abuse her. There also was evidence that the older son walked into the bathroom when the father was sexually abusing the mother. Moreover, the mother fled the home on more than one occasion with the children due to the domestic violence incidents. This evidence supports a finding that the incidents of domestic violence constituted abuse sufficient to support an adjudication of dependency.

Finally, in his motion for rehearing, the father specifically sought to obtain a new trial based upon newly discovered evidence, consisting of a report of the Inspector General that criticized DCF’s handling of this case. The trial court denied the motion on the merits. His counsel’s subsequent filing of a motion for rehearing after the order of disposition, asserting the same newly discovered evidence issue, also was denied. We conclude that the trial court did not abuse its discretion in denying these motions. While the reports were critical of DCF’s handling of this family, most of the criticisms revolved around administrative decisions, such as documenting interviews, leaving the children with the mother, and insufficient investigations. It does not refute the evidence offered at trial supporting the adjudication of dependency as to the father.

For these reasons, we affirm the order of adjudication of dependency.

STEVENSON and TAYLOR, JJ, concur.

      . There is no written ruling on the order denying the second motion. Orally, the court denied it as untimely. Although denial for untimeliness was improper, see A.G. v. Dep't of Children & Family Servs., 731 So.2d 1260, 1261-62 (Fla.1999), the court had denied the father's earlier motion, on the merits, raising the same issue.