author: MAY, J.

text:
    STATE of Florida, Appellant, v. Delvin McCUTCHEON, Appellee.
    No. 4D05-1263.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2005.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellant.
    John Weekes of Law Offices of Weekes & Weekes, P.A., Fort Lauderdale, for ap-pellee.
   MAY, J.

The State of Florida appeals an order granting the defendant’s motion to suppress. It argues the trial court erred in suppressing evidence seized during a vehicle search. We agree with the State and reverse the suppression order.

While conducting surveillance at a hotel parking lot known for its high volume of drug transactions, a deputy observed the defendant engage in behavior he believed to be indicative of narcotics sales. He approached the defendant as he sat alone in the passenger seat of a car. The defendant told the deputy he was staying at the hotel, but he didn’t know his room number. The deputy requested identification, whereupon the defendant exited the vehicle to access a folder in the backseat. When he did so, the deputy saw three black “hide a key boxes” on the floorboard of the passenger seat. He knew these containers were used to store drugs.

The deputy asked the defendant for permission to search him and the vehicle for drugs. The defendant consented to the search. The deputy searched the defendant and had him sit on the sidewalk as he proceeded to search the vehicle. The deputy immediately reached inside of the car, picked up the key boxes, opened them, and found crack rocks and various other forms of narcotics.

The State charged the defendant with: (1) possession of cocaine with the intent to deliver/sell, (2) possession of oxycodone, (3) possession of diazepam, (4) possession of alprazolam, and (5) misdemeanor possession of drug paraphernalia. The defendant filed a motion to suppress, and argued the deputy exceeded the scope of consent when he opened the containers.

At the suppression hearing, defense counsel argued the scope of the defendant’s consent did not extend to containers within the vehicle. He suggested the deputy was required to ask specific permission to open the containers. The State responded that such an explicit request was not required.

Although finding the initial encounter consensual, the trial court determined the defendant’s consent did not extend to the containers inside the vehicle. The court noted that the deputy “never requested nor received consent to open these containers.” The court suppressed the evidence, reasoning that the defendant’s “consent to search the vehicle extends only to the interior of the car and not to any containers therein.... ” From this order, the State appeals.

“When considering a trial court’s decision on a motion to suppress, we accept the trial court’s findings of fact, but review de novo the trial court’s application of the law.” McNamee v. State, 906 So.2d 1171 (Fla. 4th DCA 2005). A trial court’s decision on a motion to suppress bears a presumption of correctness. See State v. Houston, 616 So.2d 595, 596 (Fla. 4th DCA 1993).

This case is controlled by Florida v. Jimeno, 500 U.S. 248, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991). In Jimeno, the Court answered the question of “whether a criminal suspect’s Fourth Amendment right to be free from unreasonable searches is violated when, after he gives a police officer permission to search his automobile, the officer opens a closed container found within the car that might reasonably hold the object of the search.” The Court answered the question in the negative. Id. at 252, 111 S.Ct. 1801. The Court’s answer was reached by applying the “objective reasonableness” standard, i.e., “what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Id. at 251, 111 S.Ct. 1801 (citations omitted).

The scope of a search is generally defined by its expressed object. United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). In this case, the terms of the search’s authorization were simple. Respondent granted Officer Trujillo permission to search his car, and did not place any explicit limitation on the scope of the search. Trujillo had informed respondent that he believed respondent was carrying narcotics, and that he would be looking for narcotics in the car. We think that it was objectively reasonable for the police to conclude that the general consent to search respondent’s car included consent to search containers within that car which might bear drugs. A reasonable person may be expected to know that narcotics are generally carried in some form of a container. “Contraband goods rarely are strewn across the trunk or floor of a car.” Id. at 820, 102 S.Ct., at 2170.

Jimeno, 500 U.S. at 251, 111 S.Ct. 1801 (emphasis added).

Importantly, the Jimeno court expressly distinguished its decision from the Florida Supreme Court’s holding in State v. Wells, 539 So.2d 464 (Fla.1989), affirmed on other grounds, 495 U.S. 1, 110 S.Ct. 1632, 109 L.Ed.2d 1 (1990), which is heavily relied upon by the defendant. In Wells, the Florida Supreme Court determined that a suspect’s general consent to search a vehicle did not empower law enforcement to “pry open” locked containers therein. Agreeing with this holding, the Jimeno court noted,

[i]t is very likely unreasonable to think that a suspect, by consenting to the search of his trunk, has agreed to the breaking open of a locked briefcase within the trunk, but it is otherwise with respect to a closed paper bag.

Jimeno, 500 U.S. at 251-52, 111 S.Ct. 1801 (emphasis added); see also Oliver v. State, 642 So.2d 840 (Fla. 4th DCA 1994) (it is objectively reasonable for a police officer to open the trunk of a vehicle to which he is given general consent to search after asking the defendant about contraband, drugs or weapons located inside the vehicle); cf. Rodriguez v. State, 539 So.2d 513 (Fla. 2d DCA 1989) (consent to “look” into a vehicle does not give an officer authority to open a sealed box or search a closed trunk; such search would be objectively unreasonable).

Here, the deputy testified his observations led him to believe the defendant was engaged in the sale of drugs. As a result of those observations, he approached the defendant and requested his permission to search his person and vehicle “for drugs.” The defendant consented, placing no restrictions on the consent given. The defendant did not attempt to withdraw or limit the scope of his consent or instruct the deputy that such consent did not extend to containers within the vehicle.

A “hide a key box” is a compartment that can reasonably contain the object of the search, drugs. “A reasonable person may be expected to know that narcotics are generally carried in some form of container. ‘Contraband goods rarely are strewn across the trunk or floor of a car.’ ” Jimeno, 500 U.S. at 251, 111 S.Ct. 1801 (quoting United States v. Ross, 456 U.S. 798, 820, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982)); see also State v. McCance, 737 So.2d 1113 (Fla. 2d DCA 1999) (general consent to search vehicle for weapons extended to fanny pack because reasonable person can be expected to know that “a fanny pack is a container in which either narcotics or weapons can be carried”); State v. Hester, 618 So.2d 1365 (Fla.1993). We conclude the search of the key boxes was objectively reasonable under the circumstances.

The suppression order is reversed and the case is remanded to the trial court for further proceedings consistent with this opinion.

Reversed and Remanded.

STONE and SHAHOOD, JJ., concur.

      . The trial court’s finding that the original encounter was consensual is not challenged on appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    305 DEVELOPERS, LLC, a Florida limited liability corporation, Petitioner, v. Marilyn A. BUCHALTER, an individual, Respondent.
    No. 4D05-1202.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2005.
    Myrnabelle Roche and Frank V. Reilly of Reilly Roche LLP, Ft. Lauderdale, for petitioner.
    Stanley J. Bartel of Law Office of Stanley J. Bartel, Miami, for respondent.
   PER CURIAM.

We grant the petition for writ of certio-rari and quash the order granting the motion to dissolve lis pendens. Buchman v. Fishbein, 537 So.2d 704 (Fla. 4th DCA 1989); Hallmark Builders, Inc. v. Hickory Lakes of Brandon, Inc., 458 So.2d 45 (Fla.2d DCA 1984). We remand to the trial court to hear the issue of notice and opportunity to be heard on the motion to dissolve, and if applicable, the issues of the propriety of lis pendens and the requirement of a bond, after hearing argument and considering any evidence presented by both sides.

STEVENSON, C.J., WARNER and POLEN, JJ., concur.


author: SHAHOOD, J.

text:
    MERASTAR INSURANCE COMPANY, Appellant, v. Evelyn WEBB, Appellee.
    Nos. 4D04-1342, 4D04-2501.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2005.

      Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., and Alan C. Espy, Palm Beach Gardens, for appellant.
    Barbara J. Compiani and Jane Kreus-ler-Walsh of Jane Kreusler-Walsh, P.A., and Christopher M. Larmoyeux of Lar-moyeux & Bone, P.A., West Palm Beach, for appellee.
   SHAHOOD, J.

We affirm as to the first issue raised holding the trial court did not abuse its discretion in denying appellant’s motions for mistrial and new trial based upon certain closing argument comments. Although the complained-of comments were improper, they were not so prejudicial as to mandate a mistrial or a new trial. See Matalon v. Lee, 847 So.2d 1077, 1080 (Fla. 4th DCA 2003).

We hold the trial court erred in admitting into evidence and refusing to strike previously undisclosed evidence of plaintiffs prescription drug bills. See generally 99 Broadcasting Co. v. Crider, 493 So.2d 462 (Fla. 4th DCA 1985) (holding that it was error to allow testimony of undisclosed witness who suggested a new theory of damages upon which jury verdict may well have been based). We remand for the trial court to grant a remittitur for the amount of the prescription drug bills.

Finally, because we are affirming the judgment in favor of Webb, except as to prescription drug bills, we also affirm the judgment taxing costs against appellant.

Affirmed in part; Reversed in part and Remanded.

STONE and MAY, JJ., concur.


text:
    Leigh Ann PIKE, Appellant, v. Charles G. PIKE, Appellee.
    No. 4D04-1861.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2005.

      Benjamin T. Hodas of Martin L. Haines, III, Chartered, Lake Park, for appellant.
    Sam T. Steger and Karen O’Brien Steger of Steger & Steger, P.A., Stuart, for appellee.
   PER CURIAM.

In a dissolution of marriage case such as this one, in which alimony is required because of the disparity in income between the parties, the court must first determine the amount of alimony and then, considering alimony as income, determine the amount of child support. § 61.30(2)(a)9, Fla. Stat. (2004). Cornett v. Cornett, 713 So.2d 1083 (Fla. 2d DCA 1998). In this case the trial court first determined the amount of child support, and then awarded only a dollar a month in permanent alimony. The court did this because it concluded that the mother would be better off if the entire award was child support, which would not be taxable to her. Although it is obvious from the record that the court was attempting to achieve the most beneficial financial result for both parties, the court erred in awarding alimony of only one dollar a month. As the court did in Cornett, we reverse and remand for the court to determine permanent periodic alimony, and' then, taking that amount into account, calculating child support.

FARMER, KLEIN and MAY, JJ., concur.


text:
    D.B., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee. J.J., the Father, Appellant, v. Department of Children and Families, Appellee.
    Nos. 4D05-849, 4D05-990.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2005.

      Karen Martin of Karen Martin, P.A., West Palm Beach, for appellant D.B., the Mother.
    Frank A. Kreidler, Lake Worth, for appellant J.J., the Father.
    Jeffrey Dana Gillen, Department Attorney, West Palm Beach, for appellee.
    John Walsh, Attorney Ad Litem, Legal Aid Society of Palm Beach County, Inc., West Palm Beach, for minor children J.J. and C.J.
   SHAHOOD, J.

Appellants, D.B., the mother (mother), and J.J., the father (father), each appeal from an Order Granting Termination of Parental Rights and Permanent Commitment. The minor children of the appellants are J.J. born May 4, 2000, and C.J. born August 10, 2001. These appeals have been previously consolidated for record purposes only. We now sua sponte consolidate the appeals for all other purposes including this opinion.

We affirm the order appealed in all respects both as to the mother and father. We distinguish this case from this court’s recently issued opinion in K.J. v. Department of Children & Family Services, 906 So.2d 1183 (Fla. 4th DCA July 2005). In K.J. we held that the order was not supported by clear and convincing evidence.

In this case, we hold the order is supported by clear and convincing evidence. Where, as in the instant case, the record supports a finding of ongoing neglect, and/or abuse over a period of years, together with non-compliance with the case plan, we will not disturb the trial court’s ruling. Further, as in this case, we will not disturb the court’s ruling where the manifest best interests of the child or children favor an existing opportunity for adoption. In support, we adopt the well-written order of the trial court, which states in pertinent part the following:

4. Both children were placed in shelter with the Department of Children and Families (DCF) by Order dated January 16, 2003. The children were adjudicated dependent on May 5, 2003;
6. The parents were offered separate case plans which were approved by the Court on June 5, 2003. The case plans had a goal date of September 15, 2003, supporting concurrent goals of reunification and adoption. The goal dates of the case plans were extended to January 16, 2004.

The case plans for the parents were similar. Each parent was required to complete the following tasks:

a. psychological evaluation and any recommended treatment;
b. parenting effectiveness training;
c. substance abuse evaluation and “follow all treatment and recommendations to outpatient, detoxification and/or residential treatment if necessary”
d. stable, hazardous-free housing independent from others and a verifiable legal source of income for a minimum of six (6) months;
e. pay $200.00 a month child support for the children while they are out of parental custody;
f. the Mother was also required to attend individual counseling.
7.[J.J.] and [C.J.] are two young boys who have spent 2 years in foster care. For [J. J.], this amounts to half his life. For [C.J.], the time in foster care amounts to almost two-thirds of his life. Both children spent the first part of their lives with their parents, [J.J.] and [D.B.]. During the Mother’s pregnancy with [J.J.] she tested positive for cocaine, triggering an abuse report upon her first son’s birth.
The Mother was arrested for aggravated battery in July 2000. She was arrested for stabbing the children’s Father. This incident triggered a second abuse report. The child, [J.J.], though present during this incident and the Mother’s arrest, was left in the home.
A third abuse report was filed alleging that the Mother, the children’s Father, and the mother of the Father’s other children were doing crack cocaine together. After all of these indicents [sic], the Department made reasonable efforts to keep this family together, leaving the children with the parents and ensuring that services, including substance abuse treatment, were available to the parents.
After the third incident, the children were returned to the Father. Soon after, the children were found wandering near the roadway. Later that same day, the children were removed when [J.J.] was again found wandering alone in the motel complex. Following this incident, the children were adjudicated dependent;
8. These incidents provide the background, but not the reasons for this termination petition. They all occurred prior to the children’s removal and prior to the services offered in the case plan.
The petition seeks termination of parental rights on two grounds. The first ground is that the parents continued to abuse, abandon, and neglect their children as evidenced by their failure to substantially comply with their case plans for a twelve month period of time following the children’s placement into shelter care. The second ground for termination of the parents’ parental rights is that they have engaged in conduct toward the children that demonstrates that the continuing involvement of the parents threatens the life, safety, well-being or physical, mental or emotional health of the children irrespective of the provision of services.
Both parents failed to comply with their case plans. Substantial compliance means that “the circumstances which caused the creation of the case plan have been significantly remedied to the extent that the well-being and safety of the child will not be endangered upon the child’s remaining with or being returned to the child’s parent.” Sec. 39.01(68), Fla. Stat.;
9. The circumstances which resulted in the creation of this case plan stem largely from both parents’ drug use. The Drug Abuse Foundation (DAF) twice closed their case regarding the Mother, first in March of 2003, and again on August 2003, due to the Mother failing to appear for treatment. After testing positive for Oxazepam in May, 2003, the Mother finally made herself available for treatment in October 2003. The DAF enrolled her in out-patient treatment in October 2003;
10. By October 30, 2003, the Mother again failed to appear for drug treatment. She resided at a halfway house, Freedom House and followed the program’s rules. However, the Father resided at a halfway house, Stephanie’s Sober House. When he tested positive for cocaine, he was asked to leave. The Mother admits she made a “mistake” and left with him, despite being encouraged to remain in treatment;
11. In December 2003, DAF transferred the Mother to in-patient treatment. The Mother did complete her inpatient treatment and was moved on to out-patient in February 2004. However, by April 2004, she was failing to show for drug screens and tested positive for cocaine again. DAF discharged her and recommended her for long term residential treatment. The Mother declined;
12. The Mother completed parenting classes during her in-patient stay at DAF. She did not receive her psychological evaluation, until well after the expiration of the case plan. Her housing is unstable. She has been in jail, drug treatment, half-way houses, and at the home of a male who employs her to maintain his books for his pool business. She did not establish housing as required by the case plan. Nor has she had any steady source of income. She did not pay child support. The Mother failed to adequately address her substance abuse problems, despite the services offered under the case plan and the multiple opportunities to engage in those services;
13. The Father failed to comply with his case plan. He made several unsuccessful attempts at substance abuse treatment. The Father rejected further offers for treatment.
The Father was Marchman Acted in June of 2003, for residential treatment following his release from jail on child neglect charges stemming from the removal of his children. He made poor progress and was discharged on September 30, 2003, with a poor prognosis. Shortly after that, the Father tested positive for cocaine on October 16, 2003. Almost immediately he was asked to leave Stephanie’s Sober House due to his cocaine use. The Father was offered alternative treatment, i.e., in-patient treatment. He declined. He left the halfway house, taking the Mother with him. As said by the Father with tears streamining [sic] down his face and a plea for forgiveness in his voice, “When I met [D.B.], she had a four bedroom house, pool and a new car. I took her down.... She loved me so much, she wouldn’t let go.” Again in April 2004, the Father tested positive for cocaine;
14. Twice the Father violated his probation on child neglect charges. His probation was reinstated on January 2, 2004. He was violated again on May 6, 2004, for changing his residence without consent, absconding, committing a new law violation and testing positive for cocaine. It was recommended to the Father that he complete the Palm Beach County Drug Farm, a one year in-patient program for substance abusers. He declined. This resulted in his probation being revoked and his incarceration;
15. The Petition for Termination of Parental Rights also cites grounds for termination based upon Sec.39.806(i )(c), Fla. Stat. alleging that the parents have engaged in conduct toward the children that demonstrates that the continuing involvement of the parents in the parent-child relationship threatens the life, safety, well-being or physical, mental or emotional health of the children irrespective of the provision of services. Services, particularly substance abuse services, were made available to both parents for years. Under the case plan, both parents were offered inpatient and outpatient treatment, a number of times. The parents continued to use cocaine throughout the duration of the case plan;
16. By the expiration of the extended case plan, January 16, 2004, both parents were left with the same recommendations regarding their addictions: enter long-term residential treatment programs. The Father was offered this through his probation officer in the form of a one year program at the Palm Beach County Drug Farm. The Mother was offered this through the Drug Abuse Foundation which recommended a long term intensive residential treatment program for her. Both parents declined these offers;
17. Any future provision of services would be futile. The parents are not interested in engaging in further services. Instead, they believe the Mother can go it alone and stay clean by attending meetings. This theory was tested in the past by the parents with disastrous results for the children;
18. [J.J.] was exposed to cocaine in-utero. He was exposed to severe domestic violence while an infant. He and his brother, [C.J.], were allowed to wander onto a busy street while their Father slept. The parents’ untreated substance abuse addiction poses a serious threat of harm to the children. The boys would be in physical danger if returned to the parents. They would also suffer mental and emotional harm, if subjected to any more of the parents’ chaotic, drug-addicted lifestyle;
19. The lack of stability brought on by the Mother’s and Father’s addiction influences every aspect of their lives from their housing, to their employment, to their ability to consistently safely and responsibility [sic] parent. This instability continues to this day;
20. The Father is incarcerated as he was when this case commenced. The Mother’s housing is not stable. She is staying at her employer’s apartment. These children, who have become increasingly fragile as a result of the parents’ actions and inactions, can tolerate no further chaos in their young lives. They need stability immediately. Reunification with the parents poses a substantial risk of harm to the children and that termination of parental rights is the least restrictive means of protecting the children;
21. It is in the manifest best interests of the children to terminate parental rights at this time. There are no suitable permanent custody arrangements with a relative. The maternal grandfather is suffering from several illnesses. His housing situation is unstable as he is being forced to move his trailer from where it is currently located in Las Vegas, and at this time, does not know where he will relocate. Things are not going well for him in Las Vegas. Placement with the maternal grandfather would not be stable nor appropriate for the children.
The parents have demonstrated minimal ability to provide for the material needs of their children. They have proven themselves unable to provide stable and adequate housing;
22. The parents do not have the capacity to care for the children to the extent that the children’s health and welfare would not be endangered upon the children’s return to the parents. The parents are unable to live a drug-free lifestyle. Their lifestyle of choice creates an environment of substantial risk for the children.
Both children’s [sic] need a stable, safe, nurturing and permanent home. [J.J.] has therapeutic needs, resulting from the disruption he has suffered in his short lifetime. These needs can be met by freeing the children for adoption.
The parents love their children. The children recognize their Mother. However, the children have been separated from their parents for over a year. Visitation has been sporadic, often due to the parents’ incarceration or drug treatment. The degree of harm the children will suffer if parental rights are terminated is not so significant that it would counter balance the children’s great need for permanence;
23. The children will be adopted, if parental rights are terminated. They have the ability to form a significant relationship with a parental substitute. They have done so with their current caretakers who wish to adopt them. This has been the children’s most stable home and it is highly desirable to maintain this continuity in the children’s lives. The children have formed a powerful bond to their present foster family; and
24. The children’s Guardians [sic] Ad Litem recommends termination of parental rights....

Based on the facts in this case, as found by the trial court, we hold that the trial court’s Order Granting Termination of Parental Rights and Permanent Commitment is supported by clear and convincing evidence and affirm.

Affirmed.

STONE and MAY, JJ., concur.


author: FARMER, J. GUNTHER, J.,

text:
    ABERDEEN GOLF & COUNTRY CLUB, Appellant, v. BLISS CONSTRUCTION, INC., Appellee.
    No. 4D04-2545.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2005.

      Mara Shlackman and Hinda Klein of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for appellant.
    Kenneth G. Spillias and Kevin S. Hennessy of Lewis, Longman & Walker, P.A., West Palm Beach, for appellee.
   Amended Opinion

FARMER, J.

We have a nonfinal order refusing to compel arbitration. The dispute arose from an aborted contract for the construction of a new $2 million facility at a private club. The contract between the owner of the club and the general contractor (GC) contained an alternative dispute resolution (ADR) provision that included arbitration. When the owner terminated the contract before completion, the GC commenced litigation and alleged that the owner’s premature termination caused damages. The owner responded with a demand for arbitration. The trial judge found that the owner had forfeited any right to arbitration by its conduct leading up to the GC’s suit. We affirm.

Like all contracts, each arbitration agreement is unique. Although it may employ some standard terms, the contract must be construed and understood in light of its whole text, context, structure and purpose. As with all contracts, the entire undertaking must be considered.

Some arbitration provisions are intended to operate as an irrevocable substitute for litigation in court. These survive full performance by one party, leaving only the other party’s covenant for future dispute. For example, an arbitration provision in the purchase of a product, say an automobile, may be intended to apply even after the buyer has fully performed by payment and all that remains is the seller’s warranty. In that instance arbitration may be intended as a complete alternative to proceedings in a court on warranty claims surviving the closing.

In other contracts, however, performance may involve many tasks over a long duration toward a single defined goal. One example is the construction of a commercial building. It is impossible to build anything substantial overnight or all alone. The complexity of a substantial commercial edifice requires multiple vendors completing an interrelated series of dependent tasks. The participation of many must be carefully coordinated, because the work of one hinges on the finished work of another. Yet there are a thousand ways in this relay of goods and services for time to be stolen. Here arbitration may have a different use: it may instead be intended as a means of postponing — even if not ultimately avoiding — litigation in court while the parties make progress toward their contractual goal. The issue is whether this case involves this latter kind instead of the former.

It is unlikely that many $2 million commercial construction projects have been finished without conflicts during progress. The owner of real property and a GC share two primary concerns. Time and money. Disputes arising during construction may result in lost time. They structure their contract so the whole job does not come crashing to a halt with every dispute. They aim to keep the project going and to avoid wasting time and money in litigation to resolve disputes about individual parts of the plan or the specific tasks. Litigation is ill-suited to resolve them because courts spend time in ways horrifying commercial parties. This is not a criticism, for we are deliberative institutions bound by procedures allowing parties to make their cases fully. So in a construction contract, the parties may choose an ADR system whose real purpose is for construction to continue through the dispute.

The ADR provision in this agreement may be briefly outlined. It starts with an umpire of sorts, the architect and, if a party disagrees with his decision, then to mediation and, if nothing works to the satisfaction of all, to arbitration. Notably this ADR provision does not specify anywhere that arbitration, as such, is a condition precedent to litigation.

That this ADR provision was meant to function during the progress of the contract is seen in certain key provisions, all of which must be read as part of a single piece. One section requires any dispute to be initiated by notice to the architect within 21 days after it has occurred and, in any event, not later than 30 days before the final payment. This is obviously meant to insure that all disputes will be resolved before completion, or laid on the table when it comes time for the owner to make the final payment on the contract price, perhaps with an adjustment for any unresolved dispute. Another section emphasizes that “[pjending final resolution of a claim ... the Contractor shall proceed diligently with performance of the Contract and the Owner shall continue to make payments in accordance with the Contract documents.” [e.s.] In short, the contract requires both sides to continue to perform through disputes, with the goal that most things will be resolved as they arise or with the final payment. Critically, another section of the contract expressly limits the grounds for either party terminating the entire contract before completion. Essentially the GC may terminate if the owner fails to make a draw payment certified as due by the architect. The owner may terminate if the GC and the subs fail to carry on construction diligently-

Significantly the contract specifies that, after notice from the complaining party, an initial decision by the architect is a condition precedent “to mediation, arbitration or litigation of all Claims.” [e.s.] If the parties meant for arbitration to supplant all litigation — even after a termination before full completion — they would not have inserted litigation, the emphasized word, because their intent then would have been to eliminate litigation entirely. Again, the arbitration clause does not state that it is a i precondition to litigation. In fact, nothing in the contract specifies that the arbitration provision is irrevocable and replaces all litigation in court. Altogether, these , specific provisions and omissions make clear that this ADR system was meant to function in place of the courts while progress was being made on the contract.

From this whole text, context and structure, the only reasonable construction is that the ADR provision was not meant to survive an absolute termination of the contract before completion. Any total termination of the contract before the clubhouse was built would obviously be the utter negation of the very purpose of the contract in the first place, and thus also the rationale behind an ADR provision designed to speed dispute resolutions during construction in order to bring about a successful completion of the contract. If either party terminated, all bets would be off and either could have its day in court.

The dispute that ended in the utter destruction of the agreement began with the GC’s discovery of mold in part of the old clubhouse being rebuilt. As the contract requires, the GC gave notice to the architect and claimed that the presence of the mold should change the approved schedule and increase the contract price for successful completion of the clubhouse. The architect confirmed the mold and agreed that it had caused delays that could affect the price.

If the owner disagreed with the architect’s decision on mold, the owner was required under the contract to initiate mediation and, that failing, an arbitration proceeding to resolve the issue while the whole project carried on. The contract also specified that arbitration must be initiated by filing the claim with the American Arbitration Association. But meanwhile the owner was barred by the contract from withholding any draw payments already certified as due.

The owner decided not to follow the contract’s ADR provisions. It rolled out the ultimate weapon — a refusal to pay draws then certified as due by the architect and declared a termination of the whole deal. The owner refused further performance entirely, refused to make a draw payment of nearly a quarter of a million dollars then due, and “fired” the GC. Although several weeks later the owner wrote the GC that it wanted arbitration of the dispute, until this litigation was filed even later the owner had never initiated such proceedings in the manner prescribed by the contract.

Obviously it is unreasonable to suppose that an arbitration provision meant to resolve disputes while work continues has any application to a termination of the entire contract before completion. In short, because of the owner’s refusal to resort to the ADR and the owner’s termination well short of any hope of completion, the ADR provision simply failed of its essential purpose. See Varner v. B.L. Lanier Fruit Co., Inc., 370 So.2d 61 (Fla.2d DCA 1979) (where circumstances cause a remedy to fail of its essential purpose, remedy may be had as otherwise provided by law).

To be sure, the issue was framed in the trial court as one of waiver. The GC argued that the owner waived arbitration by refusing to follow the contract’s ADR provision as to the mold issue. The trial court obviously accepted the GC’s position that the owner’s pre-lawsuit conduct barred it from claiming arbitration instead of court litigation. See Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707 (Fla.2005) (waiver of the right to arbitrate may consist of conduct implying a voluntary and intentional relinquishment of a known right).

In Raymond James Financial Services, the supreme court explained the waiver of arbitration provisions thus:

“The right to arbitration, like any contract right, can be waived. The [United States] Supreme Court has made clear that the ‘strong federal policy in favor of enforcing arbitration agreements’ is based upon the enforcement of contract, rather than a preference for arbitration as an alternative dispute resolution mechanism. Thus, the question of whether there has been waiver in the arbitration agreement context should be analyzed in much the same way as in any other contractual context. The essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right.” [e.s., c.o.]

896 So.2d at 711; see also E.E.O.C. v. Waffle House Inc., 534 U.S. 279, 289, 122 S.Ct. 754, 151 L.Ed.2d 755 (2002) (purpose of federal arbitration statute was to place arbitration agreements on the same footing as any other contract); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 24, 111 S.Ct. 1647, 114 L.Ed.2d 26 (1991) (same).

Thus arbitration provisions and their waiver must be construed and enforced no differently than all contracts are construed and enforced. We agree that, after the architect’s initial mold decision, the owner’s refusal to initiate mediation as a precondition to arbitration and to comply with the duty to make progress payments instead of terminating the contract could be deemed a voluntary and intentional relinquishment of the known right to arbitration. The trial court’s decision fits well within the invocation of traditional contract law principles in Raymond James Financial Services.

According that decision the initial presumption of correctness, as we must, we think the trial court’s decision — that the owner refused to follow the contract ADR after the architect’s initial mold decision — could also be upheld under another legal theory, another standard contract principle aptly fitting the circumstances. It is settled contract law in Florida that a breach by anticipatory repudiation allows the nonbreaching party to terminate his own performance and bring litigation for damages. In Hospital Mortgage Group v. First Prudential Development Corp., 411 So.2d 181 (Fla.1982), the supreme court adopted the Restatement position, saying “the nonbreaching party is relieved of its duty to tender performance and has an immediate cause of action against the breaching party.” 411 So.2d at 182; Restatement (Second) of Contracts § 253 (1979); see also Poinsettia Dairy Prods., Inc. v. Wessel Co., 123 Fla. 120, 166 So. 306 (1936) (same). In this case, we should be clear in understanding that the owner’s firing of the GC effectively ended the construction contract. Thus the owner “unequivocally terminated” the entire agreement. The owner’s repudiation empowered the GC to forego his own performance of the contract’s various provisions — including an ADR provision designed to ensure full performance by the owner' — and sue for damages in court.

Waiver is certainly an apt characterization when a seller of an auto with a surviving warranty proceeds to defend on the merits after the buyer files suit for breach. But here before it terminated the contract entirely, the owner forswore complying with any of the contract’s ADR provisions to allow successful completion. The owner rejected mediation, followed by arbitration, to resolve the architect’s mold decision, improperly refused to make certified draw payments, and simply called a halt to the entire contract. The ADR provision is just one part of the contract’s provisions leading to a successful completion, and it does not specify that it survives a premature termination. Without a survival clause, the ADR provision went down with the whole.

The contract’s ADR system was like the rifle shot before the nuclear bomb. If only rifles were being fired, final completion was still possible. But the owner chose the nuclear option of total war rather than the contract’s system of less drastic, alternative resolution. Once the nuclear bomb was dropped, any resolution was not for this contract’s ADR meant to avoid total war.

In repudiating the ADR, the owner should not be heard in litigation to claim the benefit of an ADR provision it had rejected so clearly and unequivocally. The owner’s failure to initiate arbitration, its refusal to make payment due, and its cancellation of the whole agreement, all left the GC with no choice but to commence litigation to recover any damages caused by an improper nonpayment and repudiation.

Affirmed.

WARNER, J., concurs.

GUNTHER, J., dissents with opinion.

GUNTHER, J.,

dissenting.

I respectfully dissent. Neither Aberdeen Golf & Country Club nor Bliss Construction, Inc. has ever contended, whether in the trial court or on appeal, that the contract at issue was terminated, destroyed, repudiated, or otherwise abandoned, so as to prevent the operation of its dispute resolution procedures. Significantly, not only did Bliss never assert that Aberdeen could not invoke the dispute resolution procedures due to the termination of the contract, it has sought to rely on its interpretation and application of those very dispute resolution procedures to support its claim that Aberdeen waived its right to arbitration by failing to first comply with the procedures. Such a position is fundamentally inconsistent with a contention that the contract was abandoned so as to prevent the operation of the dispute resolution procedures.

Additionally, the majority’s conclusion that the contract was terminated presupposes one of the legal issues to be considered and resolved by the trial court, namely Bliss’s claim for breach of contract based on Aberdeen’s termination of Bliss. Thus, the majority’s conclusion places Aberdeen in an untenable position at trial. Because the evidentiary record and decision were limited to the issue of arbitration, this Court’s opinion also should be so limited.

Aberdeen Golf & Country Club appeals the denial of its Motion to Dismiss Complaint and Compel Arbitration, contending that it did not waive its right to arbitration. I would reverse because I find that neither Aberdeen nor Bliss Construction, Inc. complied with the requirements of the dispute resolution procedure set forth in the standard-form American Institute of Architects contract executed by the parties.

Aberdeen entered into the contract with Bliss for addition and renovation work on Aberdeen’s clubhouse. After the project had begun, Bliss discovered that the clubhouse was contaminated by mold, and that the contamination would result in construction delays and additional costs.

Pursuant to a provision of the contract, Bliss sought a decision of the architect finding that the mold contamination was a hidden condition allowing for time and cost adjustments to the contract. Article 4.4.1 of the contract provides:

Claims, including those alleging an error or omission by the Architect but excluding those arising under Paragraph 10.3 through 10.5, shall be referred initially to the Architect for decision. An initial decision by the Architect shall be required as a condition precedent to mediation, arbitration or litigation of all Claims between the Contractor and Owner arising prior to the date final payment is due, unless 30 days have passed after the Claim has been referred to the Architect with no decision having been rendered by the Architect.

The architect determined that the mold was a hidden condition. To reach the conclusion that the mold was a hidden condition, the architect necessarily made an implicit finding that Bliss did not cause the mold problem. This is so because damage that a party causes cannot reasonably be considered a hidden condition unknown to it, especially where such damage would not be subsurface in nature or an unusual physical characteristic of the site. Aberdeen responded to the decision of the architect by, inter alia, terminating Bliss as its contractor, purportedly for cause under the contract due to its belief that substandard construction practices employed by Bliss caused the mold problem, and ceasing progress payments.

As the dispute escalated, Aberdeen sent a letter to Bliss requesting mediation and arbitration if mediation was unsuccessful; however, mediation, at least as contemplated by the contractual dispute resolution procedures, was never undertaken by the parties. Bliss responded by filing a complaint in circuit court against Aberdeen. Bliss included counts for fraudulent misrepresentation, negligent misrepresentation, rescission, breach of contract, and slander. The fraudulent misrepresentation, negligent misrepresentation, and rescission claims explicitly relate to the mold dispute. The breach of contract claim addresses the mold dispute by raising Aberdeen’s termination of Bliss and cessation of progress payments, which resulted from the mold problem. The slander claim, which was never addressed by the trial court, focuses on statements allegedly made by Aberdeen in the aftermath of the mold problem about the quality of Bliss’s work.

Aberdeen responded to Bliss’s lawsuit by filing a demand for arbitration with the American Arbitration Association (AAA). Aberdeen raised claims for breach of contract, negligence, and civil conspiracy against Bliss. The breach of contract claim squarely addresses the mold problem by discussing the drying-in process, which a prior letter from Aberdeen to Bliss alleged was improperly completed and was a possible cause of the mold problem. The negligence claim refers to substandard work by Bliss just like the breach of contract claim, thereby including the drying-in process and its possible relationship to the mold problem. The civil conspiracy claim relates to the architect’s report on the mold problem as discussed in the letter from Aberdeen to Bliss. Bliss’s counterclaims are identical to the claims made in its complaint filed in the circuit court.

Aberdeen also filed a Motion to Dismiss Complaint and Compel Arbitration based on Articles 4.5 and 4.6 of the contract which require mediation as a condition precedent to arbitration or litigation and set forth the mediation and arbitration steps of the contractual dispute resolution procedure. Article 4.5.1 provides:

Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived as provided for in Subparagraphs 4.3.10, 9.10.4 and 9.10.5, shall, after initial decision by the Architect or 30 days after submission of the Claim to the Architect, be subject to mediation as a condition precedent to arbitration or the institution of legal proceedings by either party.

Article 4.6.1 provides:

Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived as provided for in Subparagraphs 4.3.10, 9.10.4 and 9.10.5, shall, after decision by the Architect or 30 days after submission of the Claim to the Architect, be subject to arbitration. Prior to arbitration the parties shall endeavor to resolve disputes by mediation in accordance with the provisions of Paragraph 4.5.

It should be noted that the language of Article 4.6.1 does not explicitly make arbitration a condition precedent to litigation, but that Article 4.6.2 mandates that “[cjlaims not resolved by mediation shall be decided by arbitration.”

Bliss then amended its complaint to include a count for foreclosure of a construction lien filed in the wake of the mold dispute and filed a Memorandum in Opposition to Defendant’s Motion to Dismiss Complaint and Compel Arbitration. Bliss asserted that Aberdeen waived its right to arbitration by, inter alia, failing to itself seek a decision of the architect under the dispute resolution procedures of the contract as a means to resolve the mold dispute.

The trial court held a hearing on the Motion to Dismiss Complaint and Compel Arbitration, at which Bliss acknowledged that all of its claims, except possibly the slander claim, were properly subject to arbitration under the contract. However, Bliss contended that Aberdeen waived its right to seek arbitration, that it had improperly requested mediation and arbitration by letter to Bliss rather than by demand to the AAA, and that it had taken steps inconsistent with the right to arbitrate so as to further waive that right. The trial court denied the Motion to Dismiss Complaint and Compel Arbitration.

“[T]he standard of review applicable to the trial court’s construction of [an] arbitration provision, and to its application of the law to the facts found, is de novo.” Gainesville Health Care Ctr., Inc. v. Weston, 857 So.2d 278, 283 (Fla. 1st DCA 2003); see also Stewart Agency v. Robinson, 855 So.2d 726, 728 (Fla. 4th DCA 2003)(“A trial court’s decision regarding the validity of an arbitration clause is a matter of contract interpretation subject to de novo review.”). However, once the arbitration clause is construed and applied, the question of waiver of the clause is one of fact, and the trial court’s answer to the question is subject to review for competent, substantial evidence. See Marine Envt’l Partners, Inc. v. Johnson, 863 So.2d 423, 426 (Fla. 4th DCA 2003).

“[Tjhere are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). In the case at bar, the parties recognize that the contract includes an arbitration provision and that, with the possible exception of the slander claim, the claims raised in the complaint are arbitrable issues. As such, the central issue on appeal is whether Aberdeen waived its right to arbitration.

“[A]ll doubts about the scope of an arbitration agreement, as well as any questions about waivers thereof, are in favor of arbitration, rather than against it.” Breckenridge v. Farber, 640 So.2d 208, 210 (Fla. 4th DCA 1994); see also Marine Envt’l, 863 So.2d at 426. However, “no party may be forced to submit a dispute to arbitration that the party did not intend and agree to arbitrate.” Steve Owren, Inc. v. Connolly, 877 So.2d 918, 920 (Fla. 4th DCA 2004).

“Waiver is the intentional or voluntary relinquishment of a known right or conduct which warrants an inference of the relinquishment of a known right.” Marine Envt’l, 863 So.2d at 426. “While arbitration agreements are favored, a party may waive that right if the party has knowledge of the right yet takes action inconsistent with the right.” Breckenridge, 640 So.2d at 210. “A party claiming waiver of arbitration must demonstrate: 1) knowledge of an existing right to arbitrate and 2) active participation in litigation or other acts inconsistent with the right.” Id. at 211. “A showing of prejudice is not required if waiver is based on inconsistent acts rather than delay in asserting one’s right.” Id.; see also Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 710 (Fla.2005); Marine Envt’l, 863 So.2d at 428.

The question in the case at bar is not whether Aberdeen was aware of the right to arbitrate, but whether Aberdeen waived the right to arbitrate by engaging in acts inconsistent with that right. Such inconsistent acts could include failing to obtain a decision of the architect or to endeavor to resolve the mold dispute by mediation. This question requires consideration of the dispute resolution procedure provisions of the contract.

The first step of the contractual dispute resolution process is submission of a claim to the architect for a decision. Bliss undertook such a submission. The architect determined that the mold was a hidden condition. Although Aberdeen did not request a decision of the architect, the language of the contract does not require that the party that submitted a claim to the architect is the only one that can submit the claim to a mediator. The contract merely refers to the submission of claims to the architect being a condition precedent to the submission of claims to mediation, without specifying who must submit the claims. Although Bliss was the initial complainant in the case at bar, the architect’s decision regarding the mold dispute was adverse to Aberdeen in that the mold was deemed a hidden condition, and thus, not caused by Bliss, so that Aberdeen was the party most likely to seek further review of its claims regarding the mold problem. As such, I cannot conclude that based on the terms of the contract and the facts of the case that Aberdeen was required to separately submit the mold dispute to the architect before undertaking arbitration.

However, Aberdeen was required to endeavor to resolve the mold dispute by mediation prior to seeking arbitration. This is because mediation is the second step of the contractual dispute resolution process and is a condition precedent to both arbitration and litigation under the contract. But Aberdeen is not the only party in the case at bar to run afoul of the contractual dispute resolution provisions. Bliss failed to undertake mediation prior to initiating legal proceedings based on its continued dissatisfaction with Aberdeen’s response to the mold problem and the decision of the architect in Bliss’s favor. The claims made to the architect, to the AAA, and to the circuit court share the common nexus of the mold dispute, and more specifically, all address the cause of the mold problem, whether a hidden condition or substandard construction practices. As a result, to seek continued review of the dispute following the decision of the architect, whether through arbitration or litigation, both Aberdeen and Bliss were required to endeavor to resolve the mold dispute by mediation, a step which neither party took.

Bliss’s argument that Aberdeen waived its right to arbitration is equitable in nature. See Lewis State Bank v. Advance Mortgage Corp., 362 So.2d 406, 410 (Fla. 1st DCA 1978) (waiver is a principle of equity). Although it is apparent that Aberdeen did not comply with the contractual dispute resolution procedures, I am unwilling to conclude that Aberdeen waived its right to arbitration where the party so asserting was equally remiss in its compliance with the contractual dispute resolution procedures prior to filing a lawsuit. As such, neither party is in a position to seek or receive a disposition of this case that is based on equitable principles. See McMichael v. McMichael, 158 Fla. 413, 28 So.2d 692, 693 (1947)(in cases where “both parties are at fault [equitable] relief should be withheld from both”). Furthermore, because neither Aberdeen nor Bliss satisfied the conditions precedent to litigation under the dispute resolution provisions of the contract, the trial court should have granted the motion to dismiss to allow for continued consideration of the mold dispute under these provisions. Consequently, I would reverse and remand for just such further proceedings.

      . In a sense they are a single concern. Time is money. The owner will probably have a construction loan, the ultimate cost of which is tied to the duration of construction. The GC may also be working off an operating capital loan to advance the costs of material and labor. The more the GC pays in interest on the loan, the less its profit. Even without an operating capital loan, the longer the GC’s money is tied up in material and labor, its earnings are diminished. Consequently their agreement seeks to reduce the cost of money.

      . "Claims ... shall be referred initially to the Architect for decision. An initial decision by the Architect shall be required as a condition precedent to mediation, arbitration or litigation of all Claims between the Contractor and Owner arising prior to the date final payment is due, unless 30 days have passed after the Claim has been referred to the Architect with no decision having been rendered by the Architect.” Art. 4.4.1 (AIA form 1997).

      . "Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived as provided for in Subparagraphs 4.3.10, 9.10.4 and 9.10.5, shall, after initial decision by the Architect or 30 days after submission of the Claim to the Architect, be subject to mediation as a condition precedent to arbitration or the institution of legal proceedings by either party.” Art. 4.5.1.

      . “Any Claim arising out of or related to the Contract, except Claims relating to aesthetic effect and except those waived as provided for in Subparagraphs 4.3.10, 9.10.4 and 9.10.5, shall, after decision by the Architect or 30 days after submission of the Claim to the Architect, be subject to arbitration. Prior to arbitration the parties shall endeavor to resolve disputes by mediation in accordance with the provisions of Paragraph 4.5.” Art. 4.6.1.

      . The evidentiary record we have been given is limited to the proceedings on the motion to compel arbitration. Our decision relates only to the issue of arbitration. Nothing we say in resolving this appeal should be taken as the law of the case on any issue involved in the merits of the pending claims or defenses. Any collateral estoppel effects of facts established in the course of deciding the motion to compel arbitration are for the trial judge to decide in the first instance.

      . The dissent argues that the GC has never contended that the owner’s termination of the contract bars it from asserting the ADR provision. It is true that the GC has not used the words "terminated” or "repudiated”, but it has definitely argued that before suit was filed the owner "engaged in conduct inconsistent with the exercise of the right to arbitrate ... or properly preserve or exercise that contractual right.” Appellee's Brief, at 12. The fact that the GC's brief does not specifically argue the theory of breach by anticipatory repudiation is inconsequential. A trial court’s decision will be upheld on appeal if any legal theory supports it. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). Applegate requires us to consider any theory on appeal that would sustain the trial court’s decision, so long as it is consistent with the facts on which the decision was based. In this case, the trial court did not state the actual basis for its decision that the GC was not required to arbitrate the dispute in place of litigation. Waiver and contract repudiation are simply corresponding legal theories for similar conduct leading to the same outcome. There is nothing inconsistent about them in the context of this case.

      . The dissent argues that the contract ADR still required the GC to seek arbitration of the mold dispute many months after the owner had fired the GC and terminated the entire contract. With respect, this is illogical. The GC had previously and timely submitted the mold dispute to the architect and was perfectly satisfied with his decision. It was the owner who was unsatisfied with the architect’s decision. Under the contract the owner had the burden to initiate mediation and arbitration within 15 days after the architect’s mold decision. Instead the owner refused payment due and fired the GC. Firing the GC was a termination of the contract. Many weeks later, the owner wrote the GC that it wanted arbitration, but by then it was long past contract time for initiating these procedures. There was nothing left for the GC but to file suit for damages to recover what it is owed. In effect the dissent would deny the GC's right of access to a court on account of the owner’s failure to follow the contract ADR. The dissent does not explain why an ADR system whose essential purpose is only to keep the contract from being terminated before completion has any relevance after the contract has broken down entirely and years have now gone by.

      . The contract refers to Claims for Concealed or Unknown Conditions in Article 4.3.4, and presumably these conditions are what the parties refer to by the term hidden condition. Concealed or unknown conditions are defined as: "(1) subsurface or otherwise concealed physical conditions which differ materially from those indicated in the Contract Documents or (2) unknown physical conditions of an unusual nature, which differ materially from those ordinarily found to exist and generally recognized as inherent in construction activities of the character provided for in the contract."


text:
    Jack SCHRAM, Appellant, v. Mindy Sue SCHRAM, Appellee.
    No. 4D04-1622.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2005.

      Steven Cripps of Law Offices of Orsley & Cripps, P.A., West Palm Beach, for appellant.
    Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, for appellee.
   SHAHOOD, J.

This is an appeal by Jack Schram, former husband, from an Amended Final Judgment of Dissolution of Marriage. Former husband raises two issues on appeal. We affirm in part, reverse in part, and remand to the trial court for further proceedings.

First, former husband claims that the trial court erred in imputing income to him for the purpose of awarding child support and requiring the repayment of funds. Second, former husband argues the trial court erred in awarding sole parental responsibility to former wife and in limiting his visitation.

The parties were married on March 25, 1989, and separated in July 2002. They have twin daughters born October 5, 1992. Former wife was a school teacher earning $61,000 gross per year; former husband had been in the jewelry business, but alleged that he was disabled and had no income. Following several robberies, former husband closed down his jewelry store.

In seeking alimony and child support, former wife alleged that former husband, although not recently employed, had been a jeweler and had access to funds. In addition, former wife sought an unequal, equitable distribution due to an Internal Revenue Service judgment against former husband only, stemming from problems associated with his business practices.

Former husband filed an answer and counter-petition. In seeking permanent alimony, former husband alleged that he was totally disabled as a result of chronic pain resulting from multiple gunshot wounds and a severe car accident. He claimed that he could work only a couple of hours a day and that former wife earned more income from her employment as a school teacher.

An order on temporary relief was entered on January 28, 2002. On March 26, 2003, former husband was held in contempt. The trial court found that former husband removed items from the marital home without consent and that former husband had the ability to comply with the order on temporary relief and had willfully refused to pay his share of the children’s tuition. As a result, former husband was ordered to return the items taken, pay the tuition owed and pay former wife’s attorney’s fees necessitated by seeking the contempt order. Former wife also moved for an order requiring that former husband reten the monies he liquidated from the children’s education funds.

At the final hearing, former wife testified that she was 47 years old and was an elementary school teacher earning $61,000 per year. The marital home was valued at $240,000 with a $145,000 mortgage. Former wife was seeking the marital home as part of the equitable distribution. She claimed that throughout the proceedings, former husband refused to cooperate in order to refinance the home and lower the payments. Former wife sought to be named the owner of the children’s prepaid college plans due to the fact that former husband had liquidated the children’s custodial accounts in the amount of $21,031.94 and removed $5,500 from their savings accounts. Former wife wanted the monies returned and for her to be designated as the custodian of the accounts.

Former wife stated that former husband was 55 years old and had a Master’s degree in psychology. Former husband was a jeweler and had his own store in West Palm Beach until he closed it about four years ago. She maintained that at the time of the store’s closure, former husband had an inventory of $500,000 worth of jewelry. Former wife stated that former husband also received a jewelry inventory from his father (who had also been a jeweler) during the marriage valued at $250,000.

Due to federal income tax deficiencies stemming from former husband’s jewelry business, the IRS sued the parties. Former wife received “innocent spouse status.” The IRS made a tax assessment that former husband earned $236,195 in 1994 and $478,568 in 1995. Prior to the imposition of penalties and interest, the IRS assessed former husband as owing $350,427 in unpaid taxes. A federal tax lien was placed upon the marital home in the amount of $613,524.69 (which includes interest and penalties) against former husband only. In addition, liens were placed on the marital home due to former husband’s failure to pay homeowner association’s dues.

Former husband testified that he obtained his degree in psychology in 1972 but never pursued that line of work. In 1985, he was involved in a car accident that left him disabled for four years. He sustained extensive injuries, including a broken hip, damaged sciatic nerve, collapsed lungs, ruptured spleen, broken arms and legs and an injured jaw. After that, he went into the jewelry pawn business.

Former husband had undergone four hip replacements over the past twenty years, and claimed that due to his surgeries, he has minimal circulation in his right leg, increased swelling and difficulty ambulating. He takes several medications to control the pain and regulate his circulation.

In addition, former husband had been the victim of three armed robberies at his jewelry store. Although he sustained no injuries in the first incident, former husband claimed that he sustained brain damage causing short-term memory loss following being maced and hit with a gun; former wife disputes this. In the third incident, which occurred in 1994, former husband sustained four gunshot wounds to the abdomen and one to the arm. His recovery from those wounds took several months. He claimed that he contracted copper poisoning as a result of the shooting and has chronic pain due to damage to his spine.

Former husband claimed that he tried to find work during the last few years, but can sit, at most, for about an hour at a time. In order to pay bills, former husband claimed that he sold what jewelry remained by selling jewelry from his apartment or selling unsellable jewelry for its gold content at a jewelry exchange. He stated that his jewelry business was last successful in 1994, that he closed his store in 2000, and sold his brother $80,000 in jewelry in 2002.

In an amended final judgment, the trial court imputed income to former husband in the amount of $61,000 (the same amount as earned by former wife). The court also awarded former wife sole parental responsibility and allowed former husband visitation on Wednesdays from 4:00 p.m. to 7:00 p.m. and every other weekend from Saturday at 9:00 a.m. until Sunday at 11:00 a.m. The court awarded former wife sole ownership of the marital home after taking into consideration former husband’s refusal to agree to refinancing, the federal tax lien on former husband’s share of the house in the amount of $613,524.69 and his failure to pay the homeowner’s association dues during the pendency of the litigation. Neither party was awarded alimony and former husband was to pay child support in the amount of $1,250 per month. Former husband was directed to return items taken from the marital home and to restore the funds taken from the children’s custodial accounts.

In requiring that former husband pay child support and other financial obligations, the trial court imputed income to former husband by finding that “it would be fair and equitable to impute the same earnings to the husband [as earned by former wife] as he has a master’s degree in counseling and the testimony (which the court accepts) is that there is no impediment to the husband continuing in his .occupation as a jeweler. The only credible testimony was that the last time the husband filed federal income tax he had earnings in excess of $250,000.”

On appeal, former husband claims that the trial court erred in imputing $61,000 income to him “without evidence as to either his ability to earn income and/or availability of assets with which to pay the obligations designated in the Final Judgment.” We agree.

In considering the imputation of income, the standard of review is whether the trial court’s determination is supported by competent, substantial evidence. See Gruber v. Gruber, 857 So.2d 329, 331 (Fla. 2d DCA 2003).

In order to impute income to the husband, specific findings are required that indicate source and amount. See Batson v. Batson, 821 So.2d 1141, 1143 (Fla. 5th DCA 2002). When imputing income to a party, the trial court must set forth factual findings as to the probable and potential earnings level, source of imputed and actual income, and adjustments to income. See Bimonte v. Martin-Bimonte, 679 So.2d 18, 19 (Fla. 4th DCA 1996). A court may impute income where a party is willfully earning less and the party has the capability to earn more by the use of his best efforts. See Gruber, 857 So.2d at 331. Although the trial court is free to determine the credibility of witnesses, restraints on imputation exist in the form of a required two-step analysis. First, the trial court must conclude that the termination of income was voluntary; second, the court must determine whether any subsequent underemployment “resulted from the spouse’s pursuit of his own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received.” See Konsoulas v. Konsoulas, 904 So.2d 440, 443 (Fla. 4th DCA 2005)(quoting Ensley v. Ensley, 578 So.2d 497 (Fla. 5th DCA 1991)). In any event, the trial court may only impute a level of income supported by the evidence of employment potential and probable earnings based on history, qualifications, and prevailing wages. See id.

In this case, the evidence demonstrated that former husband was last assessed by the IRS for failure to pay taxes in 1994 and 1995, at which time he was assessed as earning $236,195 and $478,568, respectively. Former husband stated that he closed his business in 2000 and due to his disabilities (resulting from his various injuries), he would sell off his remaining jewelry inventory to pay bills. Former husband last sold his brother $30,000 in jewelry in 2002. The court stated that there was no impediment to former husband continuing his occupation as a jeweler, but there was no evidence to support that claim.

Further, there was no evidence that former husband who earned a degree in psychology in 1972 ever worked in that field or was qualified to obtain a position in that field. Thus, the court’s reliance on this fact does not support its imputation.

With respect to the second issue raised in the amended final judgment, the trial court held that “after considering all of the statutory factors set forth in Section 61.13(3)(a)-(m), that is it [sic] in the paramount interests of the child that the court award the mother sole parental responsibility for the two minor children and so the court so orders.” “In the absence of an agreement, the husband shall have the children with him on Wednesdays from 4:00 p.m. until 7:00 p.m. and every other weekend from Saturday at 9:00 a.m. until Sunday at 11:00 a.m.”

Former wife concedes error in part, and we agree, as to the trial court’s award of sole parental responsibility to former wife. “The wife agrees that section 61.13(2)(b)2 requires that a trial court ‘shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child.’ ” Grimaldi v. Grimaldi, 721 So.2d 820, 821 (Fla. 4th DCA 1998). Because the trial court failed to make a specific finding that shared parental responsibility would be detrimental to the children, the trial court erred in awarding sole parental responsibility to former wife. In accordance with Grimaldi, the matter must be remanded so that the trial court can make a finding regarding whether shared parental responsibility is detrimental to the children. On remand, the court may, in its discretion, either take additional evidence or rule on the record presently available. See id.

As to restricting former husband’s visitation, the trial court made no findings in this regard. Former husband points out that the visitation restriction was the same restriction placed upon him in the temporary relief order. In the temporary relief order, the trial court restricted visitation “as his health permits.” Former husband claims that while former wife argues that he is not too infirm to work, she also argues that he is too infirm to take care of the children.

Former wife claims that former husband is not a good role model for the children, that he has an anger management problem, has been violent, fails to return the children on time and fails to get their homework assignments completed. One child refuses visitation because she is scared of former husband.

While the denial or restriction of visitation rights is generally disfavored, it is within the court’s discretion to restrict or limit visitation, as may be necessary, to protect the welfare of the child. See Allen v. Allen, 787 So.2d 215, 217 (Fla. 5th DCA), review denied, 800 So.2d 612 (Fla.2001). A ruling limiting visitation will not be disturbed absent a finding of abuse of discretion. See Damiani v. Damiani, 835 So.2d 1168, 1169 (Fla. 4th DCA 2002). The privilege of visiting the minor children of the parties to a divorce proceeding should never be denied either parent so long as he or she conducts himself or herself, while in the presence of such children, in a manner which will not adversely affect the morals or welfare of such progeny. See id. (quoting Yandell v. Yandell, 39 So.2d 554 (Fla.1949)). Based on the testimony adduced at trial, the trial court did not abuse its discretion in limiting former husband’s visitation.

Accordingly, we reverse that part of the amended final judgment which imputes income to appellant for purposes of awarding child support and requiring the repayment of funds by appellant and remand for further proceedings in accordance with this opinion. We also reverse the trial court’s finding of sole parental responsibility and remand for the court to make a specific finding whether, in accordance with Grimaldi, shared parental responsibility is detrimental to the children. We affirm the trial court’s ruling in limiting former husband’s visitation.

Affirmed in part; Reversed in part, and Remanded.

STONE and MAY, JJ., concur.


text:
    AT & T WIRELESS SERVICES OF FLORIDA, INC., a Florida corporation, and City of Coral Springs, a municipal corporation, Appellants, v. WCI COMMUNITIES, INC., Appellee.
    Nos. 4D04-3285, 4D04-3286.
    District Court of Appeal of Florida, Fourth District.
    Sept. 7, 2005.

      David P. Ackerman and Michael A. Weeks of Ackerman, Link & Sartory, P.A., West Palm Beach, for appellant AT & T Wireless Services of Florida, Inc.
    Kerry L. Ezrol and Michael D. Cirullo, Jr., of Goren, Cherof, Doody & Ezrol, P.A., Fort Lauderdale, and John J. Hearn of Office of the City Attorney, Coral Springs, for appellant City of Coral Springs.
    James C. Brady of James C. Brady & Associates, Fort Lauderdale, for appellee.
   SHAHOOD, J.

We affirm the final judgment ordering the demolition and removal of a telecommunications tower from Sherwood Forest Park and permanently enjoining appellants from maintaining a tower on that property.

Facts

On April 19, 2002, appellee, WCI Communities, Inc. (WCI), sought injunctive relief against appellants, AT & T Wireless Services of Florida, Inc. (ATT) and the City of Coral Springs (the City), to prohibit the violation of a deed restriction relative to certain lands deeded to the City.

In 1975, Florida National Properties, Inc., conveyed, by Warranty Deed, certain property to the City, including the subject “Sherwood Forest Park.” WCI, a major landowner and developer in the City, was the successor-in-interest to the grantor of the Warranty Deed. The Warranty Deed contained the following restriction:

In consideration of this conveyance, by acceptance hereof, the Grantee [City] agrees and understands and assures to Grantor that the above described property would be used and maintained solely for passive park purposes unless the express written consent of Grantor, its successors or assignees, is first obtained.
The property herein conveyed is dedicated to the public for use as passive parks.
SUBJECT to easements, restrictions, covenants, limitations and conditions of record.

(Emphasis added).

In October 1996, the City passed Ordinance 96-137 with the intent to: (1) promote the health, safety and general welfare of the citizens by regulating the siting of telecommunications towers; (2) provide for the appropriate location and development of telecommunications towers and antennas within the city; and (3) minimize adverse visual effects of telecommunication towers and antennas through careful design, siting, landscape screening and innovative camouflaging techniques. The Ordinance allowed freestanding telecommunications towers to be placed in parks and recreation areas greater than five acres. Sherwood Forest Park was listed on the City’s list of parks as potential sites for cellular towers.

On July 9, 2001, the City, over WCI’s protest, entered into a lease agreement with ATT to install a telecommunications tower in Sherwood Forest Park. The City leased to ATT 1600 square feet of park land for the construction of a “Stealth Tree type tower,, ” equipment building, black chain-link fencing and associated equipment. WCI protested on the grounds that the City’s approval for the construction of the telecommunications tower was in violation of the deed restriction on the park’s use. In January 2002, the City processed and approved an application for the issuance of a building permit to ATT to construct an eighty-five (85) foot telecommunications tower, a maintenance building and access ways, supporting structures, and hard-surface areas.

In its complaint, WCI alleged that the use contemplated by ATT and the structure submitted for a building permit was an active commercial use and not a passive use, and thus, the use and construction thereof are violative of the deed restriction. Moreover, neither the City nor ATT requested or received WCI’s express written consent for the construction of the tower.

On July 22, 2004, the trial court granted injunctive relief to WCI. In its order, the court set forth the deed restriction governing the park, that the park was conveyed to the City by Warranty Deed and that WCI was the successor-in-interest to the grantor. The court found that both ATT and the City investigated the status of the title of the park prior to entering the lease agreement for the construction of the telecommunications tower, and that they were aware of the applicable deed restriction. “Neither the City, nor AT & T Wireless, made a request to WCI Communities, Inc. for consent to waive the restriction, or to place a communication tower in the park.” The court noted that the public was physically excluded from the leased property and that the City was receiving a financial benefit from its commercial venture. The court held that there was no ambiguity in the deed restriction and that the park was to be used for “passive park purposes only.” The court held that the use of the park space was a direct violation of the deed restriction, and therefore, impermissible.

In granting injunctive relief, the court found that “it is impractical, and unwise, to order the immediate destruction of the cellular communication tower. That would, no doubt, affect the public negatively. Thus, the injunctive relief provided is modified from that sought by plaintiff.” The court ordered that ATT search for, and attempt to acquire or lease an alternate location for a communications tower which would provide suitable coverage to residents and the police, within a 24-month period. The parties were directed to return to the court at least quarterly to report on the status of the matter.

Analysis

We affirm the trial court’s findings that the City violated the deed restriction by using the park property for a telecommunications tower and that injunctive relief was warranted.

Deed restrictions on lands are deemed contractual in nature and subject to the same rules of interpretation as are contracts. See generally Hill v. Palm Beach Polo, Inc., 717 So.2d 1080, 1081 (Fla. 4th DCA 1998). The construction of a contract is a question of law for the courts. See Turner Constr. Co. v. Cent. Fla. Equip. Rental, 904 So.2d 474, 475 (Fla. 3d DCA 2005); Land O’Sun Realty Ltd. v. REWJB Gas Inn., 685 So.2d 870, 871 n. 3 (Fla. 3d DCA 1997).

When a contract is clear and unambiguous, the actual language used in the contract is the best evidence of the intent of the parties, and the plain meaning of the language controls. See Fecteau v. Southeast Bank, N.A., 585 So.2d 1005, 1007 (Fla. 4th DCA 1991); see also Jones & Scully, Inc. v. O’Connell, 604 So.2d 867, 868-69 (Fla. 3d DCA 1992), review denied, 618 So.2d 210 (Fla.1993). When a contract is ambiguous and the parties suggest different interpretations, the issue of the proper interpretation is an issue of fact requiring the submission of evidence extrinsic to the contract bearing upon the intent of the parties. See Fecteau, 585 So.2d at 1007. Although restrictive covenants should be narrowly construed, they should not be construed in a manner that would defeat the plain and obvious purpose and intent of the restriction. See McMillan v. The Oaks of Spring Hill Homeowner’s Ass’n, 754 So.2d 160, 162 (Fla. 5th DCA 2000). Restrictive covenants will be enforced where their intent is clear and their restrictions are reasonable. See Imperial Golf Club, Inc. v. Monaco, 752 So.2d 653, 654 (Fla. 2d DCA 2000) (construction of a restroom facility on a golf course violated restrictive covenant requiring complete visibility of golf course).

In this case, the trial court properly concluded that there was no ambiguity in the deed restriction requiring that the property be “used and maintained solely for passive park purposes” and that the “property herein conveyed is dedicated to the public for use as passive parks.” The court held that “[t]he park was to be used for passive park purposes only. Fractional use was not specified. Presently, a fraction of the park is not being used impassive purposes.”

Here, the actual issue turns not on whether the telecommunications tower’s use was passive, as argued by appellants, but whether the use was consistent with the deed restriction that limits use “solely” to “passive park purposes.” “In construing restrictive covenants the question is primarily one of intention and the fundamental rule is that the intention of the parties as shown by the agreement governs, being determined by a fair interpretation of the entire text of the covenant.” White v. Metro. Dade County, 563 So.2d 117, 123 (Fla. 3d DCA 1990) (quoting Thompson v. Squibb, 183 So.2d 30, 32 (Fla.2d DCA 1966)). Courts have unfailingly guarded against encroachments on public park land where such park land is under the protection of a deed restriction or restrictive covenant. See id.

In this case, quite simply, the use of the park for the telecommunications tower is not related to or in furtherance of “solely for passive park purposes.” A telecommunications tower does not support a park use. While appellants argue that the tower supports a park use, like utilities or restrooms, because someone at the park could make a cell call from the park, the tower has no park use. See, e.g., White, 563 So.2d at 124 (the operation of the Lipton tournament violated the deed restriction “public park purposes only” because it deprived the public of the use and enjoyment of the park, including the tennis facilities, during the tournament for an extended period of time).

The City devoted a portion of deed-restricted park lands to a private commercial enterprise and as a result restricted access of park lands from the public’s use. While courts have consistently ruled that commercial benefit does not defeat a park purpose, the telecommunications tower has no park purpose. See id. ATT’s use of the park property is neither passive, nor is it used to support the park. The lands are being used to fill in ATT’s telecommunications grid for monetary gain.

Next, we reject appellants’ claim that injunctive relief is not available for a “de minimis” violation. They claim that the impact of the “tree tower” on the passive recreational use of the park was minimal and that WCI was unaffected by the use. Appellants rely upon Thompson which held that property restricted to use for residential purposes, so long as it is in good faith used for such, may also be used to a minor extent for the transaction of some classes of business or other pursuits so long as such is merely casual or unobtrusive and results in no appreciable damage to neighboring property. 183 So.2d at 32. However, such use must be reasonably incidental to residential uses and such an inconsequential breach of the covenant as to be in substantial harmony with the purpose of the parties in making the covenants. See id. at 32.

A minor violation of the deed restriction is still a violation of the deed restriction. “The scope of an easement is defined by what is granted, not by what is excluded, and all rights not granted are retained by the grantor.” City of Orlando v. MSD-Mattie, L.L.C., 895 So.2d 1127, 1130 (Fla. 5th DCA 2005). “The scope of an express easement for a stated purpose cannot be expanded to include any use merely because such use does not impose an added burden on the servient estate.” Id. In this case, while the impact of the tower to the neighborhood is minimal, the telecommunications tower is not reasonably incidental to “passive park purposes.”

Accordingly, we hold that the trial court did not err in granting permanent injunc-tive relief. See St. Lucie County v. St. Lucie Village, 603 So.2d 1289, 1292 (Fla.4th DCA), review denied, 613 So.2d 12 (Fla.1992) (a party seeking injunctive relief in Florida must demonstrate: (1) irreparable harm; (2) a clear legal right; (3) an inadequate remedy; and (4) consideration of the public interest); White, 563 So.2d at 126 (an injunction is a proper remedy for violation of a restrictive covenant).

WCI, as the successor-in-interest to the grantor of the Warranty Deed, not only had a continuing interest in the property and a clear legal right to enforce the deed restriction, but appellants violated that deed restriction without obtaining WCI’s express written consent.

Further, we reject appellants’ claim that the trial court found that the public interest would not be served by granting the relief sought. Although the trial court held that the immediate destruction of the cellular telecommunications tower “would, no doubt, affect the public negatively,” that does not support appellants’ claim. The order granting the injunction clearly stated that the public was physically excluded from the leased property. This exclusion cut off access to park property to the very members of the public for whose benefit the park was given. This exclusion was inconsistent with the deed restriction. Further, the public interest was served by the maintenance of WCI’s common plan for development. While appellants characterize the telecommunications tower as a de minimis violation, it was nevertheless a violation of which they were aware and which they ignored. The public interest is best served by the maintenance of the parks, as dedicated and restricted, particularly where there is a common plan served by the parks.

Appellants further argued that the public interest would be harmed if the injunction were entered where the telecommunications tower served the public interest by providing safety to its citizens through the reception of 911 calls made from the area. Appellant cannot negate the property and legal rights of others based on a decision regarding public safety. See generally Daniel v. May, 143 So.2d 536, 537 (Fla. 2d DCA 1962) (a mandatory injunction to remove structures in violation of restrictive covenants may be granted without taking into consideration the relative amount of inconvenience or injury to be suffered by the parties). Here, the City circumscribed the location of telecommunications towers to City park lands and presented ATT with Sherwood Forest Park as the only candidate site. Clearly, public safety was not the City’s most paramount concern as evidenced by its removal of phone service previously available to park users due to the low revenue it generated.

Lastly, we reject appellants’ claim that the injunction improperly requires the trial court’s continuing on-going supervision. The trial court did not contemplate assumption of day-to-day management responsibility for the use of the telecommunications tower. Rather, in an effort to balance the competing interests and ensure fairness to all involved, the court properly ordered the removal to take place over time, allowing ATT and the City to relocate the necessary cellular telecommunications tower. The two-year transition period was intended to allow for the removal of the tower in a manner that minimizes potential harm to the parties and the public.

As to all other issues, we affirm without comment.

Affirmed.

STEVENSON, C.J., and GROSS, J., concur.

      . The City required ATT to construct the "stealth tree tower" in the form of a pine tree to blend in with the park’s aesthetics.

        . ATT paid the City a one-time payment of $10,000 to be used at the park and pays annual rent in the amount of $24,000.