text:
    Shawn WIGLEY, Appellant, v. Pattyanna Grace HARES, Appellee.
    No. 4D10-3213.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.

      Ross L. Baer of The Legal Aid Society of Palm Beach County, Inc., West Palm Beach, for appellant.
    Karen P. Mentor of Mentor Law Firm, Hobe Sound, for appellee.
   WARNER, J.

The appellant father, a resident of St. Kitts, appeals the trial court’s denial of his petition for the return of his minor child, pursuant to the Hague Convention on the Civil Aspects of International Child Abduction, the terms of which have been codified in 42 U.S.C. § 11601 et seq. Where a child has been wrongfully removed from his home country, the court must order his return unless the party removing the child can show at least one of a few narrow exceptions. The trial court found that the child had become settled in his environment, within the meaning of the Convention, and that return of the child would constitute a grave risk to the child. We conclude that the trial court misapplied the Convention in finding that the child should not be returned because he is settled in his environment. Nevertheless, because our review is limited to whether competent substantial evidence supports the trial court’s order, we affirm as to the trial court’s conclusion that the mother proved return would put the child at grave risk of harm.

Background on ICAJtA and the Hague Convention

Congress enacted the International Child Abduction Remedies Act (ICARA) to implement the Hague Convention on the Civil Aspects of International Child Abduction, a treaty to which both the United States and St. Kitts are signatories. See 42 U.S.C. §§ 11601-11611; The Hague Convention on the Civil Aspects of International Child Abduction, Oct. 25,1980, 19 I.L.M. 1501 (“Hague Convention” or “Convention”); Dep’t of State, Hague Abduction Convention Country List, available at http://travel.state.gov/ abduction/resources/congressreport/ congressreport_1487.html (last visited July 14, 2011) (listing St. Kitts as a signatory to the Hague Convention).

The Hague Convention “establishes legal rights and procedures for the prompt return of children who have been wrongfully removed or retained, as well as for securing the exercise of visitation rights.” 42 .U-S.C. § 11601(a)(4). The objects of the Convention are “to secure the prompt return of children wrongfully removed to or retained in any Contracting State” and “to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in other Contracting States.” Hague Convention, art. 1. The Convention is intended to “restore the pre-abduction status quo and to deter parents from crossing borders in search of a more sympathetic court.” Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir.1996).

Article 3 of the Hague Convention provides that the removal of a child is wrongful where it is in breach of the rights of custody of another person, and those rights were actually being exercised or would have been exercised but for the removal. See Hague Convention, art. 3. A person may file a petition under the Convention for the return of a child “in any court ... which is authorized to exercise its jurisdiction in the place where the child is located at the time the petition is filed.” 42 U.S.C. § 11603(b). A United States court deciding an abduction claim is empowered “to determine only rights under the Convention and not the merits of any underlying child custody claims.” 42 U.S.C. § 11601(b)(4); see also Hague Convention, art. 19 (“A decision under this Convention concerning the return of the child shall not be taken to be a determination on the merits of any custody issue.”).

If a petitioner meets the burden of proving by a preponderance of the evidence that the removal was wrongful, any children who were wrongfully removed “are to be promptly returned unless one of the narrow exceptions set forth in the Convention applies.” 42 U.S.C. § 11601(a)(4); see also 42 U.S.C. § 11603(e)(1)(A) (setting forth preponderance of the evidence standard for proving that the child has been wrongfully removed). Thus, if the child is wrongfully removed, then the child must be returned to his or her state of habitual residence unless the respondent can establish an affirmative defense. See Furnes v. Reeves, 362 F.3d 702, 712 (11th Cir.2004). Among the available affirmative defenses, only two are relevant to this appeal: (1) the proceeding was commenced more than one year after the removal of the child and the child has become settled in his or her new environment; or (2) there is a grave risk that his or her return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation. See Hague Convention, arts. 12, 13b. The settled environment defense requires proof by a preponderance of the evidence, while the “grave risk” defense requires proof by clear and convincing evidence. See In re Ahumada Cabrera, 323 F.Supp.2d 1303, 1310 n. 1 (S.D.Fla.2004); see also 42 U.S.C. § 11603(e)(2)(A), (B).

Facts of this Case

We preface our recitation of the facts of the case with the observation that in its final ruling, the trial court found, and it is not disputed in this appeal, the father had a right of custody to his son, and the mother wrongfully removed S.W. from his country of habitual residence, St. Kitts. Thus, the issues in this appeal concern whether the mother met her burden of establishing an exception to the immediate return provision of the Hague Convention. Only two witnesses testified and provided the evidence from which the trial court made its decision: the father and the mother. No other evidence relevant to the issues on this appeal was produced.

The father, Shawn Wigley, is a resident of St. Kitts, an island in the Caribbean. He has resided there for most of his life. On April 2, 1999, the father married the mother, Pattyanna Hares, in St. Kitts. When they married, the father was 29 or 30 years old, and the mother was 19 years old. The mother is a citizen of Guyana. The parties have one minor child together, S.W., a son born on December 13, 1999. The mother testified that during her pregnancy, the father hit her severely. However, when she called the police, they refused to interfere, saying it was a civil matter. The father denies ever hitting or threatening the mother or in any way threatening the child.

The parties separated in 2000. According to the mother, the father beat her and locked her out of the house with the baby, S.W., in her arms, when she caught him cheating on her. The mother later returned to the father’s house to ask him for support for the child. Instead, the father called Child Welfare in St. Kitts, and they removed the child from the mother and placed him with the father for ten days. After that, the father agreed to allow the mother to take the child to Guyana where the child’s maternal grandparents lived. According to the mother, he told her never to return. Nevertheless, she did return and brought the child to see the father, who kept the child for two years, according to the mother’s testimony, when she was not allowed to see him. Nevertheless, according to the father and his affidavit of habitual residence, during the time period from 2000 to 2006, S.W. frequently alternated between living with the father and living with the mother and in Guyana with the mother’s parents. The mother also had another child, not by the father, while separated but not divorced from the father.

Sometime in 2003 when the child was in St. Kitts, St. Kitts Child Welfare removed the child from the mother’s custody and placed him with the father, as the mother did not have a place to live. In September 2003, at a time when the child was living with the father, the mother alleged that the father sexually abused S.W. She based this allegation in large part on her belief that she smelled a scent similar to a latex condom when the father brought the child to her house. The authorities in St. Kitts conducted an investigation of the allegation, which included interviews of the parents and a medical examination of the child, but concluded that no sexual abuse had occurred. Accordingly, the child was returned to the father’s custody. In the mother’s testimony, the mother stated that she was relieved when the doctor told her that nothing was wrong with the child. Nonetheless, the mother had “suspicions” about the father and thought he was capable of sexually abusing the child, but admitted that she had nothing to back up this opinion.

Following the investigation of the alleged sexual abuse, the mother was “not pleased with what the Child Welfare had done.” She went to S.W.’s preschool, forcibly removed him, and fled to Guyana with him. The father testified that he did not have any idea that the child was being removed, and the mother did not call him to tell him until after she was gone. Initially, the mother gave a similar account, testifying that she took the child to Guyana without telling the father and that the father did not find out until she called him from Guyana. At another point in her testimony, however, the mother testified that the father went after her with a gun the day she took the child from the school, and she was forced to hide until he went away and she could leave for Guyana. In its final order, the trial court appears to have accepted this second version of the mother’s testimony.

According to the father, the child then lived in Guyana for about two years. The mother returned to St. Kitts for approximately one year, but left the child in Guyana with the mother’s parents. The father claimed that he sent maintenance money to the mother’s family in Guyana. He also testified that he bought a plane ticket to Guyana to visit the child, but the night before the flight was to depart, S.W.’s grandfather told him that his son was in St. Kitts. The parties’ son returned to St. Kitts on or about June 1, 2005.

The father had been in the St. Kitts military for several years. The military base was close to his son’s school, so the father would bring the son his lunch every day. The father testified that he gave the mother money every month, and also paid for his son’s schooling, uniforms, textbooks, and his son’s medical expenses. By contrast, the mother testified that the father paid child support for only four months (from November 2000 to February 2001). Other than those four months, the mother denied that the father had ever paid money for the child, though she admitted that the father paid for most of the school tuition fees.

In June 2006, the parties were divorced in St. Kitts. The parties’ divorce decree did not address the custody of the parties’ minor child. The parties had, however, worked out a timesharing agreement whereby the mother would have the child on weekdays and the father would have the child on weekends. The mother testified that after the divorce the St. Kitts government informed her that since she was no longer married to a St. Kitts citizen, she could not secure a work permit and would have to leave. She told the father of this fact.

In September 2006, the father testified that the mother prevented him from seeing his son. The father had gone to the mother’s home to pick up his son for the weekend, but the mother told the father that S.W. “was not coming.” When the father asked her why, the mother stated that she suspected that he was having sex with S.W. In October 2006, the father filed a complaint and summons in St. Kitts because the mother was denying him access to his son. A hearing on the father’s complaint was set for October 26, 2006. The mother knew about the hearing. The father had spoken to the mother, who told him that she received a summons to appear before the court. However, three days before the hearing, the mother removed S.W. from St. Kitts. The last time the father saw his son was in October 2006.

Contradicting the father’s testimony, the mother testified that she had to leave St. Kitts to protect her son and that she traveled to the United States for the purpose of never allowing the father to see S.W. again. During the first week of October in 2006, according to the mother, the father came to her house one night in his boxer briefs telling her that God had instructed him to issue the punishment of Pharaoh, taking the life of her first born child (which was S.W.), as punishment for her sin of adultery. The mother claimed that the father threatened to pay to have S.W. killed and have it appear that the mother killed S.W. The father had been saying “crazy things” and that the best thing to do was to get the child away from him and into a safe environment as soon as possible. She stopped allowing the father to see S.W. after the father threatened to kill him.

The mother knew about the father’s application to the courts in St. Kitts regarding the custody of their son but did not attend the 2006 court hearing in St. Kitts because she did not think she “stood a chance there.” The mother decided on her own that she didn’t like the remedies that might be available in St. Kitts, so it was a better idea to just leave. She admitted that she did not call the police or the Department of Child Welfare regarding the incident where the father threatened the life of the child. In the past the police had deemed acts of domestic violence against her as a “civil” matter which they could not handle. She refused to deal with Child Welfare because they had taken away S.W. from her in the past because she did not have a job. Therefore, on October 23, 2006, she fled with her children to Florida.

The St. Kitts authorities did not conduct a hearing on the father’s petition, because the mother was not present. In January 2007 the father commenced looking for his son. The authorities were not helpful but through his own investigations he finally learned that the mother had left for Florida, and he discovered the name of a person with whom the mother and child may be staying. The father then hired an investigator in Florida to pursue these leads. The investigator provided the location of the child to him on April 9, 2009. He passed this on to the governmental authorities who did nothing. Because he could not afford an attorney, he could not get immediate action. He did not file a petition for return of the child until April 19, 2010, over a year from the time that he located his son.

The mother had fled with the child to the United States because she perceived that in the United States legal system she and the child would be protected. She left St. Kitts on October 23, 2006, and arrived in Florida. That same day she moved to Port St. Lucie into the home of her best friend’s brother, Mr. Watkins. The first time she met Watkins was at the airport in October 2006, and she moved into his house even though she knew very little about him. Watkins works as a tennis coach and delivers newspapers. The mother acknowledged that Watkins had spent several years in jail in St. Martin for drug-related crimes and that she was aware of a murder accusation against him in St. Kitts. Just a few days prior to the hearing in this case, she married Mr. Watkins after having lived in his home for four years. She testified that Mr. Watkins is an American citizen.

They have lived in the same house in Port St. Lucie since October 2006. S.W. is bonded to his siblings. S.W., who is now ten years old and in the fourth grade, has been home-schooled since' his arrival in Florida. The mother obtained online materials to school S.W., but she has not registered S.W. with :the St. Lucie County school system. The mother acknowledged that S.W. is supposed to take an annual placement test as a homeschooled student, but the child has never taken any placement tests and has never taken the FCAT. No one from the school district has checked on the child’s progress. The mother would actually prefer to place the child in public school, but she did not do so because she was afraid the father would find him. She was home-schooling S.W. specifically to hide him from the father.

The family lives in a gated community which makes access of the public very difficult. While S.W. plays tennis with Mr. Watkins, he plays no other organized sports, nor is he involved in any other community activities. He does not attend any church. S.W. plays with children in the neighborhood but only under the watchful eye of his mother or her husband. Even when he plays with his best friend, who was not named, the mother is always there with him.

Both the mother and S.W. are illegal aliens, although the mother’s recent marriage to Mr. Watkins may make her eligible to obtain legal status. She testified that she had considered marriage earlier but she was afraid that the public documentation of any marriage would alert the father to her whereabouts, and he could then harm their son. For the same reason, she has never held a job in Florida.

While she has relatives in Florida, she does not see them frequently, and the child has only seen his cousins one time since his arrival four years ago. S.W. has developed a relationship with Mr. Watkins’ relatives in Florida, but all of them know of the mother’s concerted efforts to hide both herself and their son from his father. The mother acknowledged that S.W. does not spend any time away from the house with anyone who is not a family member, at least not without the mother or her immediate family being present. The step-father’s family is aware that S.W. “just couldn’t come around” to family functions around town because she was afraid the father would find her and might do something, such as “shooting up everything and then shooting me.”

The mother testified that she feared S.W.’s return to St. Kitts because of the father’s threat to kill her first born child in October of 2006. She thinks her child would be psychologically harmed because he is settled in his present lifestyle. The mother thought that the father was mentally unstable, because he had told her that the Army had demoted him for his “craziness.”

At the end of the hearing, the court allowed the mother to tell the court that the child was upset at the prospect of going back to St. Kitts. The mother had told the child of the possibility, and the child cried.

In its written order the trial court found that the father established that the mother had wrongfully removed S.W. from St. Kitts. However, because the father filed his petition for return one year and ten days after he discovered the child’s whereabouts, the court could consider the defense that the child was settled in his environment. The court specifically found that the mother’s testimony was more credible than the father’s. The court found as follows: “[Cjompetent substantial evidence that the child is now settled in his new environment came from the mother’s testimony, which the court finds credible.” The court further found that “[tjhe preponderance of evidence showed that the child is bonded with family and friends, that he is properly home-schooled, and that removing him from his current environment would cause him psychological harm.” Finally, the trial court found that the mother had established a grave risk if the child were returned to St. Kitts. The court noted that although the father denied the mother’s allegations of violence and threats to the child, he “did not adequately rebut the mother’s testimony.” Based on the mother’s testimony, the trial court found that she had demonstrated by clear and convincing evidence that the mother absconded from St. Kitts and hid the child from the father because she believed the father was violent and had threatened S.W. Accordingly, the trial court denied the father’s petition for S.W.’s return, prompting this appeal.

Standard of Review

Under federal decisions, “for all issues arising under the Convention, a District Court’s determination of facts is reviewed for clear error and its application of those facts to the law, as well as its interpretation of the Convention, are reviewed de novo.” In re Application of Adan, 437 F.3d 381, 390 (3d Cir.2006); see also Blondin v. Dubois, 238 F.3d 153, 158 (2d Cir.2001) (“Blondin II”); Shalit v. Coppe, 182 F.3d 1124, 1127 (9th Cir.1999); Friedrich v. Friedrich, 78 F.3d 1060, 1064 (6th Cir.1996). We apply that standard to this case.

Settled Environment

Because the father filed his petition for the return of the child a year and ten days after he located the child, the mother could assert the claim that the child is settled in the new environment as a defense to removal based on Article 12 of the Convention.

The rationale behind Article 12’s “now settled” defense is that when (“a child has become settled and adjusted in [his new environment, a] forced return might only serve to cause him or her further distress and accentuate the harm caused by the wrongful relocation.”). Beaumont & McEleavy, The Hague Convention on International Child Abduction 203 (1999); see also Perez-Vera Report ¶ 107 (explaining that “it is clear that after a child has become settled in its new environment, its return should take place only after an examination of the merits of the custody rights exercised over it....”).

In re B. Del C.S.B., 559 F.3d 999, 1003 (9th Cir.2008). The court looks to the U.S. State Department for interpretation of what “settled” means:

The Convention does not provide a definition of the term “settled.” However, the U.S. State Department has declared that “nothing less than substantial evidence of the child’s significant connections to the new country is intended to suffice to meet the respondent’s burden of proof.” Public Notice 957, Text & Legal Analysis of Hague International Child Abduction Convention, 51 Fed. Reg. 10494, 10509 (U.S. State Dep’t Mar. 26,1986).

Id.

The Ninth Circuit has provided a list of factors to consider when making the “settled environment”, analysis. These include:

(1) the child’s age; (2) the stability and duration of the child’s residence in the new environment; (3) whether the child attends school or day care consistently; (4) whether the child has friends and relatives in the new area; (5) the child’s participation in community or extracurricular school activities, such as team sports, youth groups, or school clubs; and (6) the respondent’s employment and financial stability. In some circumstances, we will also consider the immigration status of the child and the respondent. In general, this consideration will be relevant only if there is an immediate, concrete threat of deportation. Although all of these factors, when applicable, may be considered in the “settled” analysis, ordinarily the most important is the length and stability of the child’s residence in the new environment.

Id. at 1009 (footnote omitted); see also In re Ahumada Cabrera, 323 F.Supp.2d at 1314. Despite the court’s emphasis on length of stay, in the same U.S. State Department’s analysis of the Hague Convention that the court quotes earlier, the text states:

The reason for the passage of time, which may have made it possible for the child to form ties to the new country, is also relevant to the ultimate disposition of the return petition. If the alleged wrongdoer concealed the child’s whereabouts from the custodian necessitating a long search for the child and thereby delayed the commencement of a return proceeding by the applicant, it is highly questionable whether the respondent should be permitted to benefit from such conduct absent strong countervailing considerations.

51 Fed. Reg. 10494, 10509.

In addition, some courts have taken the position that the immigration status is a factor in the “settled environment” analysis, even if immediate deportation is not at hand. See In re Koc, 181 F.Supp.2d 136, 154 (E.D.N.Y.2001); see also Lopez v. Alcala, 547 F.Supp.2d 1255, 1260 (M.D.Fla.2008) (finding that the children’s “residence in this country is not stable because neither [the abducting parent] nor the children have legal alien status and, as such, are subject to deportation at anytime”). Moreover, a court may consider the active measures undertaken to conceal the child’s whereabouts, as well as the prospect that the abducting parent could be prosecuted for violations of law based on the concealment. Lops v. Lops, 140 F.3d 927, 946 (11th Cir.1998). Finally, at least one court has required that the abducting parent provide evidence that the child had developed the connections to the community which a normal child of his or her age would. See In re Petition for Writ of Habeas Corpus for Coffield, 96 Ohio App.3d 52, 644 N.E.2d 662, 664 (1994) (affirming trial court’s decision to return child to Australia, even though the child had been in the United States for three years, where the child had been in his most recent residence for only ten months and “appellant did not show that [the child] had developed the connections to the community which a normal child of his age would, ie., appellant did not show that [the child] had developed relationships with other individuals besides those which appellant specifically chose. Under these circumstances, appellant failed to carry his-burden of proof.”).

In applying the foregoing factors and analysis to this case, we come to the conclusion that the evidence provided by the mother and found by the trial court is insufficient as a matter of law to prove that the child is settled in his environment within the meaning of the Hague Convention. While the child, age ten, has lived in the same house for the four years he was in Florida at the time of the proceeding, he has never attended school or been monitored by the school system. On that issue, the trial court’s finding that he was “properly” home-schooled is clearly erroneous. The mother purposely kept him out of all community activities, sports, and even church to avoid detection by the father. He is allowed to have friends only when his mother or her present husband are around. Even his contact with family is very limited. Although he is around his mother’s husband’s family to some extent, the mother testified that the family knows that the child cannot always be around for fear of the father discovering the child. The mother has no employment outside the home, and she is an illegal alien, although a few days prior to the hearing she married and may be able to achieve legal status.

The child has not made any of the connections that a child would normally develop in the community, all because the mother has purposely concealed the child. To approve this conduct by finding that the length of time in this concealed existence results in the child being “settled” in his environment would undermine the very purpose of the Convention. “[A] court’s interpretation of a treaty will have consequences not only for the family immediately involved but also for the way in which other courts — both here and abroad — interpret the treaty.” Walsh v. Walsh, 221 F.3d 204, 221-22 (1st Cir.2000). We conclude that based upon the evidence as found by the trial court, the child has not become “settled” in his environment as contemplated by the ICARA. This is in keeping with the U.S. State Department’s interpretation of the Convention. “A removing parent must not be allowed to abduct a child and then — when brought to court — complain that the child has grown used to the surroundings to which they were abducted.” Friedrich, 78 F.3d at 1068. The trial court erred in finding that this exception supported denial of the petition to return.

Grave Risk of Harm

As previously noted, the general policy of the Hague Convention is that with a few narrow exceptions, “the court must return the abducted child to its country of habitual residence so that the courts of that country can determine custody.” Cuellar v. Joyce, 596 F.3d 505, 508 (9th Cir.2010) (emphasis in original). “This policy of deterrence gives way to concern for the welfare of the child only in extreme cases.” Id. Article 13(b) of the treaty provides an exception to the policy of returning the child in cases where “there is a grave risk that ... return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.” This exception is to be “narrowly drawn.” Asvesta v. Petroutsas, 580 F.3d 1000, 1020 (9th Cir.2009). The U.S. State Department’s analysis of the Convention explains the level of harm necessary to meet this exception:

This provision was not intended to be used by defendants as a vehicle to litigate (or relitigate) the child’s best interests. Only evidence directly establishing the existence of a grave risk that would expose the child to physical or emotional harm or otherwise place the child in an intolerable situation is material to the court’s determination. The person opposing the child’s return must show that the risk to the child is grave, not merely serious.
A review of deliberations on the Convention reveals that “intolerable situation” was not intended to encompass return to a home where money is in short supply, or where educational or other opportunities are more limited than in the requested State. An exam-pie of an “intolerable situation” is one in which a custodial parent sexually abuses the child. If the other parent removes or retains the child to safeguard it against further victimization, and the abusive parent then petitions for the child’s return under the Convention, the court may deny the petition. Such action would protect the child from being returned to an “intolerable situation” and subjected to a grave risk of psychological harm.

Public Notice 957, 51 FR 10494, 10510 (March 26, 1986) (emphasis added). Courts have held that psychological evidence that the child will be harmed by a change of residence is not the type of grave harm necessary to prevent removal. See Friedrich, 78 F.3d at 1067; Nunez-Escudero, 58 F.3d at 378.

In dicta in Friedrich, the Sixth Circuit narrowed the conditions upon which a “grave risk” defense can be mounted. The court said:

First, there is a grave risk of harm when return of the child puts the child in imminent danger prior to the resolution of the custody dispute — e.g., returning the child to a zone of war, famine, or disease. Second, there is a grave risk of harm in cases of serious abuse or neglect, or extraordinary emotional dependence, when the court in the country of habitual residence, for whatever reason, may be incapable or unwilling to give the child adequate protection.

Friedrich, 78 F.3d at 1069 (emphasis in original). This view has been articulated by other courts. See, e.g., Blondín v. Dubois, 238 F.3d 153 (2d Cir.2001). The Friedrich court explained that it could not assume that the country of habitual residence would not also be able to protect its children:

In thinking about these problems, we acknowledge that courts in the abducted-from country are as ready and able as we are to protect children. If return to a country, or to the custody of a parent in that country, is dangerous, we can expect that country’s courts to respond accordingly.

Friedrich, 78 F.3d at 1068.

Other courts, however, have rejected this dicta. In Van De Sande v. Van De Sande, 431 F.3d 567, 571 (7th Cir.2005), Judge Posner rejected the Sixth Circuit’s approach, stating:

To give a father custody of children who are at great risk of harm from him, on the ground that they will be protected by the police of the father’s country, would be to act on an unrealistic premise. The rendering court must satisfy itself that the children will in fact, and not just in legal theory, be protected if returned to their abuser’s custody.
Moreover, to define the issue not as whether there is a grave risk of harm, but as whether the lawful custodian’s country has good laws or even as whether it both has and zealously enforces such laws, disregards the language of the Convention and its implementing statute; for they say nothing about the laws in the petitioning parent’s country. The omission to mention them does not seem to have been an aecident-the kind of slip in draftsmanship that courts sometimes correct in the exercise of their interpretive authority.[]

The Eleventh Circuit has also rejected the approach of Friedrich in Baran v. Beaty, 526 F.3d 1340, 1348 (11th Cir.2008):

To require a respondent to adduce evidence regarding the condition of the legal and social service systems in a country she has fled creates difficult problems of proof, and appears not to have been contemplated by the Convention. Although we are cognizant of the Convention’s goal of quickly returning abducted children to their countries of habitual residence, the text of the Convention and the commentaries on it place a higher premium on children’s safety than on their return. Consequently, we decline to impose on a responding parent a duty to prove that her child’s country of habitual residence is unable or unwilling to ameliorate the grave risk of harm which would otherwise accompany the child’s return.

(footnote omitted). We adopt the approach of the Seventh and Eleventh Circuits and conclude that the Convention does not place a burden on the mother to prove that St. Kitts would not, or could not, protect her child.

Addressing the facts of this case, the trial court found the mother’s testimony to be more credible than the father’s because of her demeanor and the greater detail she provided, whereas the father’s testimony lacked clarity. The court noted that the father denied but did not “adequately rebut” the mother’s testimony that he is violent and a threat to the child. The evidence presented by the mother showed that she was a victim of domestic violence from before the child was born. She testified that the father beat her during her pregnancy including hitting her in the stomach. Then after the child was born, he hit the mother with the child in her arms. When she caught him cheating, they had a fight where he locked the mother and child out of the house with the child having nothing but a shirt on. The court recited her testimony regarding the incident in 2003 where she suspected that the father, or someone with whom the father had left the child, had sexually abused the child. The court also found as a fact that when she fled to Guyana, the father brandished a gun and threatened her, and she had to run with the child to hide. The court found as a fact that the father had threatened to kill the child as punishment to the mother in 2006 after which the mother fled to Florida.

With respect to the grave risk of harm defense, the court made the following conclusion:

The mother’s testimony was credible and showed by clear and convincing evidence that she left St. Kitts with the child and continuously concealed the child’s whereabouts because she feared that the father would harm the child, and to protect the child from a man whom she knew to be violent and who had threatened to take the child’s life. In addition to proof that the child is settled in his new environment, the mother has proved by clear and convincing evidence the existence of a grave risk that the child’s return to St. Kitts would expose the child to physical or psychological harm, or otherwise place the child in an intolerable situation.

Although the burden of proof of clear and convincing is a greater burden than preponderance of evidence, the standard of review of such finding appears to be the same. That is, the appellate court reviews the factual findings for clear error and the application of the facts to the Convention and its interpretation rife novo. See In re Application of Adan, 437 F.3d at 390 (standard is the same for clear and convincing findings as for all other issues under the act). The “clearly erroneous” standard does not permit the appellate court to reweigh the factual evidence.

If the district court’s account of the evidence is plausible in light of the record viewed in its entirety, the court of appeals may not reverse it even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Where there are two permissible views of the evidence, the factfinder’s choice between them cannot be clearly erroneous.

Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 573-74, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

With respect to the factual findings of the trial court, the court’s finding that return to St. Kitts would cause the child psychological harm was not proved by the testimony. The court heard only that the child would be upset by a return. That type of psychological harm is not the grave harm contemplated in the act. “The harm must be ‘something greater than would normally be expected on taking a child away from one parent and passing him to another’; otherwise, the goals of the Convention could be easily circumvented.” Walsh, 221 F.3d at 218. Even if the court believed the testimony of the mother that the child would be psychologically harmed — something to which she was not competent to testify — the type of harm she described was no more than the normal harm caused by the removal of a child from one parent. This would be insufficient to meet the grave harm test of the Convention.

The claims of physical violence, however, are supported by the mother’s testimony. According to the mother, the father is a violent man who beat her while pregnant, again while holding their child, threatened both of them with a gun in 2003, and threatened to kill the child in 2006. While the mother’s testimony was sometimes contradictory, the court still considered it more credible than the father’s testimony. Moreover, while it seems somewhat incongruous that the mother would be so fearful of the father, yet time and again leave the child in the care of the father, on appellate review, it is not our function to reweigh the evidence. As the Supreme Court noted, where there are two permissible versions, one which the fact finder accepted and one which it rejected, this cannot constitute clear error. Anderson, 470 U.S. at 574, 105 S.Ct. 1504.

Under Florida precedent, in Hernandez v. State, 16 So.3d 336, 340 (Fla. 4th DCA 2009), we adopted the following formulation for appellate review of a clear and convincing finding: “On appeal, a finding of clear and convincing evidence is presumed to be correct and will not be overturned unless it lacks evidentiary support or is clearly erroneous.... We review trial court’s finding of clear and convincing evidence for competent, substantial evidence.” T.S. ex rel. D.H. v. Dep’t of Children and Families, 969 So.2d 494, 495 (Fla. 1st DCA 2007). Competent, substantial evidence has been defined as:

[S]uch evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred.... [T]he evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent the ‘substantial’ evidence should also be ‘competent.’

De Groot v. Sheffield, 95 So.2d 912, 916 (Fla.1957). Moreover, the mere fact that the testimonial evidence is not corroborated by other evidence does not preclude a finding that it is clear and convincing. See, e.g., I.D. v. Dep’t of Children and Families, 13 So.3d 1117, 1120 (Fla. 3d DCA 2009).

Based upon our limited role in reviewing the findings of fact, we conclude that the mother’s testimony provided competent substantial evidence to support the trial court’s finding that clear and convincing evidence proved that the child faced a grave risk of physical harm by return to St. Kitts, due to the father’s violence against the mother in the presence of the child and his threat of harm to the child. These findings are not unlike those which were sufficient to find grave harm in Bar-an. See Baran, 526 F.3d at 1345-48 (violence against the mother while pregnant, while the child was being held in her arms, and while the father was intoxicated sufficient to show grave harm).

Were we the finders of fact we might not have found the evidence provided by the mother clear and convincing of a grave risk of harm to the child within the meaning of the act. That is not our role, however. The trial court believed the mother’s testimony that the father had made threats to kill the child. That would in and of itself constitute a grave risk of harm, as even the Convention commentators would agree. On a cold record, we cannot second guess the trial court.

For these reasons, although we find that the trial court erred in finding that a defense to return existed, based upon the child having settled in his environment, we affirm the trial court’s denial of the petition for return based upon the proved defense that return would place the child at risk of grave harm.

HAZOURI, J„ and MONACO, TOBY S, Associate Judge, concur.

      . In interpreting a treaty, the opinions of other signatories are entitled to considerable weight. Air France v. Saks, 470 U.S. 392, 403, 105 S.Ct. 1338, 84 L.Ed.2d 289 (1985); Nunez-Escudero v. Tice-Menley, 58 F.3d 374, 377 (8th Cir.1995). "[TJreaties are construed more liberally than private agreements, and to ascertain their meaning we may look beyond the written words to the history of the treaty, the negotiations, and the practical construction adopted by the parties.” Choctaw Nation of Indians v. United States, 318 U.S. 423, 431-32, 63 S.Ct. 672, 87 L.Ed. 877 (1943).

      . The father testified that he left the military in 2009 and was honorably discharged. He now runs a private security company.

      . Judge Posner suggests that where a grave risk is present, return still could be ordered to the country of habitual residence depending upon "undertaking” conditions, such as keeping the child out of the custody of the abusive parent until a custody determination in the residence country is made. The father in this proceeding has not argued for any "undertakings” or presented any evidence or proposal to secure the safety of the child. Therefore, we do not address the issue.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    David L. GREEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3644.
    District Court of Appeal of Florida, First District.
    July 29, 2011.
    David L. Green, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, DAVIS, and MARSTILLER, JJ., concur.


text:
    Fritzi BEAUGER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4972.
    District Court of Appeal of Florida, Fourth District.
    Aug. 3, 2011.
    Carey Haughwout, Public Defender and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Senior Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals the trial court’s denial of his dispositive motion to suppress narcotics located in the trunk of a vehicle. After being apprehended, appellant disclaimed any possessory interest in the vehicle and claimed a lack of knowledge of the vehicle’s existence. To establish standing to challenge a search, a defendant “must show a proprietary or possessory interest in the area of search.” State v. Singleton, 595 So.2d 44, 45 (Fla.1992). “Courts have uniformly recognized that the disclaiming of ownership or knowledge of an item ends any legitimate expectation of privacy in that item.” State v. Jones, 454 So.2d 774, 776 (Fla. 3d DCA 1984); see also State v. Hernandez, 718 So.2d 833, 836 (Fla. 3d DCA 1998) (holding that appellant “lacked standing to challenge the validity of the search of this car or of its contents where he disclaimed any ownership or possessory interest therein”). Having disclaimed any ownership or interest in the vehicle, appellant lacked standing to contest the search.

Affirmed.

DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.


text:
    David SEPLOW, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-652.
    District Court of Appeal of Florida, Fourth District.
    Aug. 3, 2011.
    David Seplow, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

David Seplow (Defendant) appeals an order of the Palm Beach County circuit court, summarily denying his motion to correct illegal sentence pursuant to rule 3.800(a), in which he sought additional credit for jail time served, though he received the amount of credit called for in his negotiated plea agreement. We affirm without prejudice to his filing a timely rule 3.850 motion challenging his plea on this basis, should he choose to do so. See Johnson v. State, 60 So.3d 1045 (Fla.2011) (holding that challenges to plea agreement provisions concerning credit for time served are not cognizable in rule 3.800(a) motions because they present factual questions that cannot be resolved on the basis of trial court records).

Because this court previously considered such motions to be cognizable under rule 3.800(a), we provide that any such motion should not be considered successive to the rule 3.850 motion which Defendant already filed with the trial court, challenging the voluntariness of his plea based on matters other than his jail time credit.

Affirmed, without prejudice.

POLEN, GROSS and HAZOURI, JJ„ concur.

      . E.g., Silverstein v. State, 654 So.2d 1040, 1041 (Fla. 4th DCA 1995) (reversing denial of rule 3.800(a) motion where trial court found defendant had waived right to credit for time served prior to being placed on probation because the plea, as negotiated, did not specifically provide for it; holding that mere failure to object to sentence that does not provide for the credit did not constitute a waiver; credit for time served in jail may be waived, but a waiver of jail time credit must be specific, voluntary, and clearly shown on the record; it cannot be shown merely by stipulation in a plea agreement), called into doubt by Johnson.

        . An appeal from the denial of Defendant's rule 3.850 motion currently is pending in this court. (Case no. 4D11-1446)


text:
    Jason A. DeLUCA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1871.
    District Court of Appeal of Florida, Fourth District.
    Aug. 3, 2011.

      Jason A. DeLuca, Coleman, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant, pro se, appeals the denial of his motion to expedite the disposition of his pending violation of probation in Okeechobee County. The defendant is currently serving a nine-year sentence in federal prison and will be eligible for release at the end of 2015. The defendant seeks participation in a drug rehabilitation program but is ineligible while the state maintains a detainer on him for the pending probation violation. Because the defendant’s appeal is directed at a non-final, non-appealable order, we do not have jurisdiction. Fla. R.App. P. 9.140(b). Additionally, pursuant to Florida Rule of Appellate Procedure 9.040(c), we have considered whether the defendant could find any relief with any of the extraordinary writs and conclude that he cannot. See Saunders v. State, 837 So.2d 433, 433 (Fla. 2d DCA 2002) (“[W]e know of no mechanism by which [the defendant] can force the trial court to timely dispose of the violation of probation nor does the trial court’s failure to have done so deprive it of jurisdiction.”).

Appeal dismissed.

CIKLIN, LEVINE, JJ., and THORNTON, JOHN W., JR., Associate Judge, concur.


text:
    T.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3338.
    District Court of Appeal of Florida, Fourth District.
    Aug. 3, 2011.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Sorey v. State, 419 So.2d 810 (Fla. 3d DCA 1982).

WARNER, POLEN and GERBER, JJ., concur.


text:
    L. Michael OSMAN and Reinaldo Costa, Appellants, v. WHITNEY NATIONAL BANK, Appellee.
    No. 1D11-0099.
    District Court of Appeal of Florida, First District.
    Aug. 3, 2011.

      David Luther Woodward of the Law Offices of David Luther Woodward, P.A., Pensacola, for Appellants.
    Sula S. McAuley of Clark, Partington, Hart, Larry, Bond & Stackhouse, Destín, for Appellee.
   PER CURIAM.

Dismissed. Harrison v. J.P.A. Enterprises, L.L.C., 51 So.3d 1217 (Fla. 1st DCA 2011).

DAVIS, LEWIS, and WETHERELL, JJ., concur.


author: BENTON, C.J.

text:
    D. Max SHEPPARD and Alicia L. Sheppard, Appellants, v. M & R PLUMBING, INCORPORATED, a Florida Corporation, Appellee.
    No. 1D10-4551.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2011.

      Bruce Brashear of Brashear, Marsh & McCarty, P.L., Gainesville, for Appellants.
    Peter A. Robertson and Kristin Davis of the Robertson Firm, Gainesville, for Ap-pellee.
   BENTON, C.J.

Max and Alicia Sheppard appeal the trial court’s order requiring them to pay costs and attorneys’ fees to M & R Plumbing, Inc. (M & R) on the purported authority of section 713.29, Florida Statutes (2008). We affirm the costs award, but reverse the award of attorneys’ fees.

The parties’ dispute over costs and fees is ancillary to a dispute that arose in connection with M & R’s installation of a water treatment system on the Sheppards’ property. The Sheppards eventually removed the system M & R had installed, and replaced it with another, less elaborate system they found more satisfactory. In the main case, M & R’s complaint alleged that the parties had reached a verbal agreement which the Sheppards had breached, and sought to foreclose a construction lien that M & R alleged had arisen under the Construction Lien Law. In the alternative, M & R alleged it was entitled to be compensated on a quantum meruit basis for labor, services and materials it had provided the Sheppards.

At the trial in the main case, the jury found no verbal agreement had been reached, but that M & R had, in installing the water treatment system, conferred a benefit on the Sheppards of the kind a reasonable person would expect to pay for, and put the value of the labor and material at $13,155. A contract implied in law — the basis for M & R’s recovery in the main case — is not a true contract, and a lien does not arise where nothing more than a contract implied in law is proven. See Doug Hambel’s Plumbing, Inc. v. Conway, 831 So.2d 704, 705 (Fla. 4th DCA 2002) (citing CDS & Assocs. of the Palm Beaches, Inc. v. 1711 Donna Rd. Assocs., 743 So.2d 1223 (Fla. 4th DCA 1999)). When the trial court entered final judgment on the verdict in favor of M & R, it expressly reserved jurisdiction to consider an award of attorneys’ fees and costs.

All parties filed motions seeking attorneys’ fees, both sides relying on section 713.29, Florida Statutes (2008), which provides:

In any action brought to enforce a lien ... under this part, the prevailing party is entitled to recover a reasonable fee for the services of her or his attorney. ...

§ 713.29, Fla. Stat. (2008). The trial court ruled that M & R was entitled to attorneys’ fees under section 713.29 on the lien foreclosure count.

In a lawsuit for money damages, authorization for “attorneys’ fees can derive only from either a statutory basis or an agreement between the parties.” Try- tek v. Gale Indus., Inc., 3 So.3d 1194, 1198 (Fla.2009) (citing State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832 (Fla.1993)). Here the trial court concluded that section 713.29 provided statutory authority for an award of attorneys’ fees, premised on a ruling that M & R had prevailed on its lien foreclosure claim. The trial court evidently rejected the Sheppards’ position that — given the jury’s verdict — they had prevailed on the construction lien foreclosure claim, entitling the Sheppards to recover fees, as prevailing parties.

In the absence of proof of a valid contract, finding M & R entitled to an award of attorneys’ fees pursuant to section 713.29 was error. “Under Florida law, a construction lien can arise only when a valid contract exists between the parties.” Niehaus v. Big Ben’s Tree Serv., Inc., 982 So.2d 1253, 1254 (Fla. 1st DCA 2008). The jury found that the parties did not enter into a verbal contract, or otherwise reach agreement on all material terms. A quantum meruit claim may support a construction lien only if a contract implied in fact is alleged and proven. See Hambel’s Plumbing, 831 So.2d at 705-06. No contract implied in fact was pleaded in the present case, and the evidence failed to persuade the jury that a meeting of the minds occurred.

The jury’s verdict that no contract had in fact been entered into bound the trial court on the equity side no less than on the law side. See Paoli v. Natherson, 732 So.2d 486, 488 (Fla. 2d DCA 1999) (“When a jury decides fact issues in an action at law, and the issues are sufficiently similar to the fact issues in a related equitable claim, the trial court is bound by the jury’s findings of fact when it then rules on the equitable claim.”). The trial court’s conclusion that M & R “proved the existence of a contract implied in fact” cannot be squared with the jury’s verdict. “For a contract to exist, the parties must reach agreement as to the meaning of each material term.” Niehaus, 982 So.2d at 1254. See also Jacksonville Port Auth., City of Jacksonville v. W.R. Johnson Enters., Inc., 624 So.2d 313, 315 (Fla. 1st DCA 1993) (“[I]f there has been no agreement as to essential terms, an enforceable contract does not exist.... Failure to sufficiently determine quality, quantity, or price may preclude the finding of an enforceable agreement.”).

The trial court erred in determining M & R was entitled to an award of attorneys’ fees under section 713.29, because, without a valid contract, there was no lien for M & R to foreclose. A contract implied in law, also called a quasi contract, is merely a legal fiction “adopted to provide a remedy where one party was unjustly enriched, where that party received a benefit under circumstances that made it unjust to retain it without giving compensation.” Commerce P’ship 8098 Ltd. P’ship v. Equity Contracting Co. Inc., 695 So.2d 383, 386 (Fla. 4th DCA 1997) (citing.Tipper v. Great Lakes Chem. Co., 281 So.2d 10, 13 (Fla.1973); Variety Children’s Hosp. v. Vigliotti, 385 So.2d 1052, 1053 (Fla. 3d DCA 1980)).

But we reject the Sheppards’ argument that — having successfully resisted enforcement of an alleged lien — they are entitled to recover attorneys’ fees. While we agree the Sheppards must now be deemed the prevailing parties on the lien foreclosure count, entry of the money judgment in favor of M & R on the quantum meruit count made M & R, not the Sheppards, the prevailing party in the litigation, viewing the entire “action brought” as a whole. § 713.29, Fla. Stat. (2008). See Trytek, 3 So.3d at 1203-04; Prosper! v.Code, Inc., 626 So.2d 1360, 1362-63 (Fla. 1993).

As the “party recovering judgment,” moreover, M & R was entitled to costs. § 57.041, Fla. Stat. (2010). See generally Hendry Tractor Co. v. Fernandez, 432 So.2d 1315, 1316 (Fla.1983) (“The statute expressly demands that the party recovering judgment be awarded costs. This unambiguous language need not be construed. Rather, it should be applied as is to the given situation.”); Bessey v. Difilippo, 951 So.2d 992, 996 (Fla. 1st DCA 2007) (same).

Affirmed in part and reversed in part.

PADOVANO and WETHERELL, JJ„ concur.

      . Presented with a $19,925.00 invoice, the Sheppards filed suit against M & R for declaratory judgment, whereupon M & R filed its own three-count complaint against the Shep-pards. M & R’s separate lawsuit was then consolidated with the action for declaratory judgment the Sheppards had earlier filed seeking a ruling that M & R's claim for $19,925 lacked merit.

      . M & R’s quantum meruit count alleged a contract implied in law, but not a contract implied in fact. While a construction lien cannot arise from a contract implied in law, it can arise from a contract implied in fact. A contract implied in fact requires actual agreement and results in a valid, enforceable contract. See Doug Hambel’s Plumbing, Inc. v. Conway, 831 So.2d 704, 705 (Fla. 4th DCA 2002); CDS & Assocs. of the Palm Beaches, Inc. v. 1711 Donna Rd. Assocs., 743 So.2d 1223, 1224 (Fla. 4th DCA 1999). "A contract implied in fact is ... based on a tacit promise, one that is inferred in whole or in part from the parties’ conduct, not solely from their words.... [A] fact finder must examine and interpret the parties' conduct to give definition to their unspoken agreement. It is to this process of defining an enforceable agreement that Florida courts have referred when they have indicated that contracts implied in fact 'rest upon the assent of the parties.’ ” Commerce P'ship 8098 Ltd. P’ship v. Equity Contracting Co., 695 So.2d 383, 385 (Fla. 4th DCA 1997) (citations omitted).

      .On the separate appeal in the main case, we affirmed the judgment in favor of M & R. See Sheppard v. M & R Plumbing, Inc., 1D10-2442, 65 So.3d 1059 (Fla. 1st DCA 2011). The present proceeding is a separate appeal from the award of fees and costs. See generally Westgate Miami Beach, LTD. v. Newport Operating Corp., 55 So.3d 567, 572 (Fla.2010).

      . At trial, Dr. Sheppard testified he was quoted an initial price of $3,100 for the water treatment system. Mr. McCullors, owner of M & R, testified that he quoted the Sheppards an initial price of $31,500. The evidence established that when the materials for the system were delivered, the Sheppards questioned the extensive amount of materials. The parties then arguably agreed on a smaller system, but there was no evidence of any discussion between the parties with regard to the price of the scaled down version. The jury did not find that the parties initially agreed to either $3,100 or $31,500, and there was no evidence the parties ever reached agreement on the price of the cost of the revised system.

      . "The elements of a cause of action for a quasi contract are that: (1) the plaintiff has conferred a benefit on the defendant; (2) the defendant has knowledge of the benefit; (3) the defendant has accepted or retained the benefit conferred and (4) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying fair value for it.” Commerce P’ship, 695 So.2d at 386 (citing Hillman Constr. Corp. v. Wainer, 636 So.2d 576, 577 (Fla. 4th DCA 1994); Henry M. Butler, Inc. v. Trizec Props.,

        Inc., 524 So.2d 710, 711-12 (Fla. 2d DCA 1988)).


text:
    Daniel STAHL, Petitioner, v. HIALEAH HOSPITAL and Sedgwick Claims Management, Respondents.
    No. 1D11-3841.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2011.
    Mark L. Zientz of the Law Offices of Mark L. Zientz, P.A., Miami, for Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. See Pino v. Dist. Court of Appeal, Third Dist., 604 So.2d 1232, 1233 (Fla.1992) (“Mandamus is an appropriate legal remedy where the petitioner has a clear legal right to the performance of a particular duty and has no other legal method for obtaining relief.”).

WOLF, DAVIS, and MARSTILLER, JJ., concur.


author: ALTENBERND, Judge.

text:
    Ernso SIMON, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-83.
    District Court of Appeal of Florida, Second District.
    Aug. 5, 2011.
    Ernso Simon, pro se.
   ALTENBERND, Judge.

Ernso Simon appeals the trial court’s order denying his motion to correct an illegal sentence. He is serving a five-year prison term for felony habitual driving with a license that was suspended, revoked, or cancelled. See § 322.34, Fla. Stat. (2008). The trial court correctly ruled that this sentence is legal, but Mr. Simon may be correct that his offense should have been classified as a misdemeanor.

Mr. Simon’s primary argument is that his offense should be categorized as a first-degree misdemeanor and not a third-degree felony in light of section 322.34(10)(a). See Wyrick v. State, 50 So.3d 674 (Fla. 5th DCA 2010). This portion of section 322.34 was added shortly before Mr. Simon’s relevant offense, and it is entirely possible that his attorney was not aware of this change in the law. We cannot tell from our record whether this subsection applies to Mr. Simon. He claims that he has no prior forcible felony, which may be true if there are only thirteen points on his scoresheet.

This claim, however, does not involve an illegal sentence and cannot be resolved without an evidentiary hearing. In order to raise this issue, Mr. Simon needs to file a motion pursuant to Florida Rule of Criminal Procedure 3.850 alleging that his lawyer was ineffective in allowing him to plead to this felony and to be sentenced to this five-year term of imprisonment when the offense was really a first-degree misdemeanor. The relevant sentence was imposed on September 3, 2009, and the trial court should accept as timely any proper motion that is filed by October 3, 2011.

Affirmed.

DAVIS and KHOUZAM, JJ., Concur.


author: MORRIS, Judge.

text:
    Elisia R. TUMMINGS, Appellant/Cross-Appellee, v. Felix R. FRANCOIS, Appellee/Cross-Appellant.
    No. 2D10-3149.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2011.

      Charles D. Radeline of Radeline Law Firm, PLC, Palm Harbor, for Appellant/Cross-Appellee.
    Lorena L. Kiely, Tampa, for Appel-lee/Cross-Appellant.
   MORRIS, Judge.

Elisia Tummings, the wife, appeals a final judgment dissolving her twelve-year marriage to Felix Francois, the husband. The husband cross-appeals. The wife challenges the inclusion of her employment bonuses as marital assets in the equitable distribution schedule. The husband also challenges the equitable distribution schedule by arguing that the trial court erred in valuing a portion of the wife’s credit card balance as marital debt. We agree with the parties on these two points and reverse the equitable distribution schedule. Our reversal of the equitable distribution schedule in regard to the wife’s bonuses moots the wife’s other claims regarding the bonuses. The husband raises several other claims on cross-appeal, but we find merit only in the husband’s arguments that the trial court erred in its division of noncovered medical expenses for the children and in its decision to deny the husband’s request for attorney’s fees and costs. Therefore, we reverse on those two points. We affirm without comment the remainder of the final judgment.

7. Facts

The parties married in December 1998. They had two children during the marriage, who remained minors at the time of the final judgment. The petition for dissolution was filed in November 2008, and the final judgment was entered in April 2010.

At the time of the dissolution, the wife was earning a gross monthly salary of $7833 as a retail manager for Home Depot. The husband was earning a gross monthly salary of $1946 as a nursing assistant at Tampa General Hospital. In the final judgment, the trial court denied the husband’s request for alimony. The trial court ordered shared parental responsibility of the children, with the wife receiving 57% of the overnight stays and the husband receiving 43% of the overnight stays. The wife was ordered to pay $596.26 in monthly child support to the husband.

In its equitable distribution schedule, the trial court subtracted the parties’ marital liabilities from the assets and divided the remaining marital assets evenly, awarding each party $98,483 in marital assets. To effect the equal division of those assets, the trial court ordered the wife to pay the husband four equalizing payments totaling $66,332.

II. Analysis

A. The wife’s employment bonuses

In the final judgment of dissolution, the trial court included the wife’s 2008 and 2009 bonuses in the equitable' distribution schedule, finding that the wife’s bonuses “totaling $46,604.00 in 2008 and 2009 are marital assets, as they were based upon corporate profits for years 2007 and 2008.” The wife argues that the trial court erred in including these bonuses as marital assets in the equitable distribution schedule because she offered competent, substantial evidence that she depleted these assets during the dissolution proceedings by paying for child support, living expenses, and litigation expenses. The wife asserts that it was error to include these as marital assets absent a finding by the trial court of misconduct on her part.

The husband suggests that the wife did not spend the bonuses on reasonable living expenses, support, or litigation expenses. He contends that the wife was unable to account for the spending of the bonuses along with other cash flow she received during the dissolution proceedings, i.e., funds from the sale of the house and “sale loss monies” received from her employer relating to the sale of the house.

“As a general proposition, it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings.” Roth v. Roth, 973 So.2d 580, 584 (Fla. 2d DCA 2008). “[A]n exception to this general proposition exists when misconduct during the dissolution proceedings results in the dissipation of a marital asset.” Id. at 584-85. Misconduct exists when one spouse has used the marital funds for his or her own benefit and for a purpose unrelated to the marriage. Id. at 585. In order to include a dissipated asset in the distribution scheme, “there must be evidence of the spending spouse’s intentional dissipation or destruction of the asset[] and the trial court must make a specific finding that the dissipation resulted from intentional misconduct.” Id.

In Roth, the husband testified that he liquidated various accounts during the dissolution proceedings to pay temporary support awards for the wife and children and to pay his own living expenses. Id. at 585. This court held that

[b]ecause there is uncontradicted evidence in the record that the dissipated funds were used to pay marital expenses during the dissolution proceedings and because there is no evidence that the [hjusband engaged in misconduct in expending the funds, the trial court abused its discretion in including these dissipated funds in the equitable distribution scheme.

Id. at 586; see also Levy v. Levy, 900 So.2d 737, 746 (Fla. 2d DCA 2005) (“Since the [w]ife’s testimony that she had used most of [a lump sum disability payment] for attorney’s fees and living expenses was unrebutted and the trial court made no finding of misconduct with respect to the [w]ife’s use of the funds, it was error to assign the full value of the depleted asset to the [w]ife as part of the plan of equitable distribution.”); Cooper v. Cooper, 639 So.2d 158, 154-55 (Fla. 2d DCA 1994) (holding that it was error for trial court to include depleted IRA asset when the evidence showed that husband had liquidated it to pay temporary support obligations and some of his living expenses and the trial court did not make a finding that the husband engaged in any misconduct).

Here, the trial court did not make any finding on whether these bonuses had been depleted by the wife or whether such depletion constituted marital waste. And the wife testified that she spent the proceeds of the bonuses on living expenses, litigation expenses, and child support paid to the husband. In addition, the wife’s final financial affidavit supports her testimony because it shows that her monthly expenses outweigh her income by at least $2200 even without considering the litigation expenses and child support the wife was ordered to pay during the dissolution proceedings. See Johnson-Gainer v. Gainer, 921 So.2d 798, 798 (Fla. 5th DCA 2006) (recognizing that a marital asset may be used to pay a temporary support obligation when there is competent, substantial evidence that there are no other means to pay such support). During the pen-dency of the dissolution proceedings, the wife was ordered to pay $561 a month in child support and $10,400 towards the husband’s attorney’s fees and costs, and she paid at least $18,000 to her own attorney and charged another $12,000 in legal fees to her credit card.

The, husband contends that the wife could not have depleted these bonuses for reasonable expenses when she also received “sale loss monies” ($59,250) and proceeds from the sale of the marital home ($34,000) during the dissolution proceedings. This argument is without merit because these amounts were included in the equitable distribution plan as marital assets and were charged to the wife, thus resulting in the equalizing payments to the husband, and the wife does not challenge the inclusion of these other funds as marital assets in the equitable distribution schedule.

Because the trial court did,not make a finding that the wife committed misconduct in depleting the bonuses and the wife’s testimony does not support a finding of misconduct, the trial court abused its discretion in including the dissipated bonuses in the equitable distribution schedule. Accordingly, we reverse the final judgment and remand for the trial court to revisit the equitable distribution schedule without including these bonuses.

B. The wife’s Visa

In the equitable distribution schedule, the trial court classified the wife’s Visa balance as a marital debt, valued its.balance at $8077, and awarded this liability to the wife. The husband argues that the trial court erred in including $1342 of that balance as part of that marital debt because this amount of the balance represented business expenses for which the wife was reimbursed by her employer.

A credit card held solely in one spouse’s name during the marriage may constitute a marital debt. See Walsh v. Walsh, 600 So.2d 1222, 1223 n. 1 (Fla. 1st DCA 1992); cf. Pietras v. Pietras, 842 So.2d 956, 959 (Fla. 4th DCA 2003) (“The record reflects this sum represents charges [the wife] incurred on credit cards she had opened, in her own name, after the filing of her petition for dissolution. We find these accounts, and the amounts charged on such, are non-marital [sic][] and should not have been included in the equitable distribution.”). In the absence of a valid separation agreement, “[t]he cutoff date for determining assets and liabilities to be identified or classified as marital assets and liabilities is ... the date of the filing of a petition for dissolution of marriage.” § 61.075(7), Fla. Stat. (2008). But “[t]he date for determining value of assets and the amount of liabilities identified or classified as marital is the date or dates as the judge determines is just and equitable under the circumstances.” Id. The Visa, which was held by the wife prior to the date of filing, was required under the statute to be classified as a marital debt, but the amount — or value — of the Visa balance was subject to the trial court’s discretion. See Byers v. Byers, 910 So.2d 336, 344-45 (Fla. 4th DCA 2005) (“The discretion given to trial courts arises after the assets and liabilities are characterized as marital or non-marital [sic].”).

Regarding the wife’s business expenses, the wife testified that after the parties separated, she started using her Visa for her and her team’s expenses, which are reimbursed by her employer. The credit card statement indicates that the $1342 amount was spent mostly on travel expenses such as hotel stays, car rentals, and out-of-town food expenditures. In light of this evidence, the trial court abused its discretion in valuing the marital debt on the card to include the $1342. We reverse the final judgment in this regard and remand for the trial court to revisit the equitable distribution schedule without including this amount of the Visa balance.

C. Noncovered medical, dental, and prescription medication expenses for the children

In the final judgment, the trial court ordered that “[t]he overnights awarded are 156 with [the husband] and 209 with [the wife], which is about 43 and 57 percent, respectively. Unreimbursed medical is to be at that percentage.” The husband contends that the trial court erred in dividing the noncovered medical, dental, and prescription medication expenses for the parties’ two minor children using the overnight percentages and that the trial court should have ordered that such expenses be paid according to the parties’ respective shares of the child support obligation. The wife’s percentage of the financial responsibility for child support was 79.79% and the husband’s percentage was 20.21%.

Section 61.30(8) provides that “any noncovered medical, dental, and prescription medication expenses of the child[] shall be added to the basic obligation unless these expenses have been ordered to be separately paid on a percentage basis.” These expenses, when not added to the basic obligation, should be divided based on the parents’ respective percentage shares of the monthly child support obligation. See Zinovoy v. Zinovoy, 50 So.3d 763, 764-65 (Fla. 2d DCA 2010); Wilcox v. Munoz, 35 So.3d 136, 141 (Fla. 2d DCA 2010); O'Byrne v. Miller, 965 So.2d 316, 318 (Fla. 2d DCA 2007). “Each parent’s percentage share of the child support need shall be determined by dividing each parent’s net monthly income by the combined net monthly income.” § 61.30(9); see also Rowe v. Rodriguez- Schmidt, 51 So.3d 1238, 1238 (Fla. 2d DCA 2011) (“If such noncovered expenses are not factored into the child support guidelines calculation, ... responsibility for the expenses should be apportioned based on the parties’ relative incomes.”); Martinez v. Martinez, 911 So.2d 288, 289-90 (Fla. 2d DCA 2005) (“[Tjhese [noncovered medical] expenses should have been awarded based on the parties’ respective incomes.... On remand, after the trial court recalculates the child support obligations, it should determine each party’s ability to pay the uncovered medical expenses and order payment based on the same percentage as the parties’ income.” (citations omitted)).

Here, the child support guidelines worksheet indicates that the husband’s percentage share of the child support need is 20.21% and the wife’s percentage share is 79.79%. Therefore, the trial court erred in ordering the husband to pay 43% of the noncovered medical expenses, which was improperly based on his share of overnight stays with the children. We therefore reverse this portion of the child support award and remand for the trial court to allocate the noncovered medical expenses in accordance "with each parties’ percentage share of the child support need in accordance with the law discussed above.

D. Attorney’s fees and costs

During the course of the dissolution proceedings, the "wife was ordered to pay approximately $10,400 of the husband’s attorney’s fees and costs. In the final judgment, the trial court declined to award him any additional fees, finding that “[b]ased on equitable distribution, the [w]ife does not have the present ability to pay additional attorney’s fees.” The court found that “the parties are similarly situated in regards [sic] to fees incurred during the litigation.” The husband had incurred additional fees of $24,364.40, which did not include all costs or any fees for the final three-day hearing or anything thereafter. The record indicates that the wife paid approximately $30,000 for her own attorney’s fees and costs throughout the proceedings.

The husband contends that the trial court erred in' denying his request for attorney’s fees and costs at the conclusion of the proceedings. He claims that he has the need for fees and that the wife is in a superior financial position to pay for his fees. He argues that the trial court only considered the equitable distribution results of the final judgment when considering the financial position of the parties and that the trial court erred in failing to consider the disparity in the parties’ incomes.

“Where there is a substantial disparity between the parties’ incomes, it may be an abuse of discretion to grant a partial attorneys’ fee award.” Lowman v. Lowman, 724 So.2d 648, 650 (Fla. 2d DCA 1999); cf. Derrevere v. Derrevere, 899 So.2d 1152, 1153 (Fla. 4th DCA 2005) (holding that it was error to order husband to pay 50% of the wife’s fees because “[t]he trial court ... equalized the situation of the parties, both as to assets and income”). Even after an equal distribution of assets has been made, the disparity in incomes should be considered. See Hutto v. Hutto, 842 So.2d 994, 997 (Fla. 2d DCA 2003) (“[T]he equitable distribution was generally equal, but the fact remains that Mr. Hutto has a greater income.... [T]he trial court abused its discretion in not ordering Mr. Hutto to make at least a partial contribution to Mrs. Hutto’s attorney’s fees.”); Adair v. Adair, 720 So.2d 316, 318 (Fla. 4th DCA 1998) (“Although the court equally divided the marital assets of the parties, the husband has significantly more income than the wife....”).

Here, the trial court abused its discretion in concluding, based solely on the equitable distribution of assets, that the wife does not have the ability to pay and that the husband does not have the need. The wife earns significantly more income than the husband ($7833 gross income per month versus $1946 gross income per month), but the trial court failed to consider the parties’ respective incomes when addressing this matter. The wife argues that she does not have an ability to pay because she has a deficit of $2200 per month, but the husband’s financial affidavit indicates that his expenses also outweigh his income by approximately $2200 per month. Although both parties appear to be living beyond their means, “[t]his [may] simply [be] a case in which the payment of attorneys’ fees must reduce the lifestyle of one or both litigants while the fees are being paid.” Lawman, 724 So.2d at 650. We reverse the trial court’s denial of attorney’s fees to the husband and remand for the trial court to reconsider the issue in light of the disparate incomes of the parties.

We reverse portions of the final judgment of dissolution as set out above, and we affirm the remaining portions of the final judgment.

Affirmed in part; reversed in part; remanded.

SILBERMAN, C.J., and LaROSE, J., Concur.

      . The wife provided a partía! trial transcript containing the wife's testimony, and the husband has pointed to no contradictory evidence presented on this issue at trial. The husband did not provide any other portions of the trial transcript. See Fla. R.App. P. 9.200(c) (“[A] cross-appellant may direct that additional documents, exhibits, or transcripts) be included in the record.”).


author: TAYLOR, J.

text:
    Egline HENRY, Appellant, v. Jena HOELKE and Stephen McCulloch, Appellees.
    No. 4D09-4281.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.
    Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, LLP, West Palm Beach, Eric G. Canter of Eric G. Canter, P.A., Boca Ra-ton, and Carl S. Karmin of Carl Karmin, P.A., Fort Lauderdale, for appellant.
    Mark D. Tinker and Charles W. Hall of Banker Lopez Gassier, P.A., St. Peters-burg, for appellees.
   TAYLOR, J.

This appeal arises from an automobile rollover crash which rendered plaintiff, Egline Henry, paraplegic. Plaintiff appeals the trial court’s denial of her motion for directed verdict on the defendant’s seatbelt defense. We reverse because the defendant, Jena Hoelke, failed to produce competent evidence establishing a causal relationship between plaintiffs paralysis and her alleged failure to wear a seatbelt.

On February 6, 2008, plaintiff was driving home with her three-year-old daughter and a friend, Lifaite Augustin, when Hoelke made a left turn into oncoming traffic and struck plaintiffs Kia. The force of the impact caused plaintiffs vehicle to rotate in different directions, roll over, and eventually come down on the driver’s side. Hoekle did not brake before the impact; she acknowledged she did not see plaintiffs car until they collided.

Hoelke placed partial blame on co-defendant, Stephen McCulloch, for blocking her view. McCulloch was driving a 1995 Suburban and pulling out from his lane to make a left turn when he saw Hoelke’s car coming toward him. He did not see the collision between Hoekle and plaintiff, but he heard it and described the movements of the Kia after impact. McCulloch saw the car fishtail and start to go “up and over.” He saw the passenger appear to be half in and out of the Kia’s. window, with his head, shoulder, and arm out; he was never fully ejected and ended up back in the car. McCulloch could not see if plaintiff was wearing her seatbelt. Before the car stopped, he saw her come partially out of the window and the car come down on her on the driver’s side; she Too was not totally ejected.

Mr. Augustin, the passenger in plaintiffs vehicle, testified that he saw plaintiff put a seatbelt on both herself and her young child before she started driving. He said she was still wearing the seatbelt after the crash. He described how plaintiff was still in the seat, but was leaning toward the driver’s side, held in by the seatbelt. ' He said that plaintiffs head was lying on the ground, past the broken driver’s side window, as blood ran out from her body. Augustin said he took his seatbelt off and climbed through the broken passenger window. Fortunately, he and plaintiffs young child suffered only minor injuries.

Plaintiff testified that before driving home she first made sure her child was restrained in her car seat in the backseat and then put on her own seatbelt. She said that she always wears her seatbelt. She could not remember whether she took off her seatbelt after the accident, or if someone else did. She could recall only that there were several people helping her who may have removed it. As a result of the accident, plaintiff suffered a dislocation between her eleventh and twelfth vertebrae, which pinched her spinal cord, and rendered her paraplegic. Her treating neurosurgeon testified that she will most likely be paralyzed for life.

The defendant presented the deposition testimony of two experts, Dr. Neil Freeman and Dr. Joseph Burton, who were retained by plaintiff. Dr. Freeman, an engineering expert, provided accident reconstruction evidence. He explained that when plaintiffs car was hit, it rotated counterclockwise past 90 degrees. It then began to roll down on the passenger side first. Dr. Freeman believed that the Kia rolled a quarter turn on the passenger side and then, after sliding on the ground for about 46 feet, came up on its wheels and went down again, this time on the driver’s side.

Dr. Joseph Burton, a forensic pathologist and medical doctor with expertise in determining whether vehicle occupants in crashes were wearing seatbelts, acknowledged that there was no hard evidence of plaintiffs use of a seatbelt in this case. He was not able to look at the seatbelts in the Kia because the car was not available, and plaintiffs medical records showed no bruising or abrasions in areas that would indicate within a reasonable probability whether she was wearing a seatbelt.

He testified that based on Dr. Freeman’s reconstruction, he could not rule out the possibility that plaintiff was wearing a seatbelt. He said:

I’m not telling you I believe that she was belted, I’m telling you I can’t rule it out. And I can’t rule out the fact that she could have undone her own belt and she could have repositioned herself.
As far as could she get the injuries inside belted or unbelted, I said that she could do that too.... A lot depends on what position she’s in when the belt locks up and whether the belt stays locked or not. If Dr. Freeman’s right in his reconstruction there’s a possibility that the belt locked up initially but began to yaw, and before it began to rollover, as the vehicle came upright and reversed its yaw and roll, that it unlocked and allowed her to have slack in the belt. So that this belt to the occupant, because of the way the belt functions, had a significant amount of slack and would have allowed her body, in some cases, to fully escape the vehicle even though she was belted.

When asked whether the use or nonuse of a seatbelt would have had any effect on the injuries sustained by plaintiff, Dr. Burton responded that the literature on seat-belt usage in rollover accidents indicates that a belted occupant is almost at the same risk for a partial ejection as one who is unbelted. When defense counsel inquired, “Could she have got the exact same fracture that she got and the injury she got by not being belted and rolling and not being ejected from this car partially?” Dr. Burton responded, “[Y]es, she could.” He explained that, based on findings by Ford’s lead engineer and developer of the Explorer, “seat belts in vehicles can’t protect occupants in rollovers because they were designed for frontal collisions.” He also cited several cases wherein Ford’s previous leading expert on rollover cases gave sworn testimony, “that if you are belted in a rollover the belt cannot prevent a partial ejection and, hence, prevent a fatal or life threatening injury.”

Before trial, plaintiff filed a motion to strike the defendants’ seatbelt defense, citing Zurline v. Levesque, 642 So.2d 1169 (Fla. 4th DCA 1994). She asserted that the record was devoid of any expert testimony or other evidence to support their seatbelt defense. The trial court denied the motion, allowing the defense to go forward at trial. Plaintiff later buttressed her argument with a memorandum of law on the impermissible stacking of inferences. She argued that the defendants would attempt at trial to establish that she was not wearing her seatbelt through witnesses who arrived at the scene after the accident, when plaintiff was no longer restrained. This would allow the jury to infer from circumstantial evidence that plaintiff was not wearing her seatbelt at the time of the accident and, without competent evidence, further infer that she suffered her injuries as a result. Plaintiff contended that the defendants would rely on an impermissible stacking of inferences.

In her motion for directed verdict, plaintiff again argued that the defendants did not sustain their burden of proof regarding the affirmative seatbelt defense because they did not introduce competent evidence that there was a failure to wear the seat-belt and that the injuries resulted from the failure to wear it. She also repeated her argument regarding impermissible stacking of inferences.

Defendant Hoelke responded that taking the evidence in a light most favorable to her, the trial court should deny the motion for directed verdict. She pointed out that McCulloch did not see a seatbelt on plaintiff after the accident and that her body was positioned so that her feet were towards the back. She also noted Dr. Burton’s testimony that the best hard evidence that plaintiff was wearing a seatbelt would have been abrasions on the body and that such markings did not appear in plaintiffs medical records. The court denied plaintiffs motion for directed verdict and allowed the seatbelt defense to go to the jury-

The jury found that Hoelke’s negligence was the legal cause of injury, loss, or damage to plaintiff and that defendant McCul-loch’s negligence was not the legal cause of her damage. The jury attributed 65% negligence to Hoelke and 35% negligence to Henry. It awarded plaintiff $6,336,160.50 in damages. After the award was reduced, the trial court entered final judgment for $4,106,004.30. The trial court denied plaintiffs renewed motion for directed verdict and/or a motion for judgment notwithstanding the verdict. Plaintiff appealed. Defendant Hoelke filed a cross-appeal, challenging the trial court’s denial of her request for a setoff for the hospital’s bill.

The “ ‘standard of review on appeal of the trial court’s ruling on a motion for directed verdict is de novo.’ Martin Cnty. v. Polivka Paving, Inc., 44 So.3d 126, 131 (Fla. 4th DCA 2010) (quoting Fina v. Hennarichs, 19 So.3d 1081, 1084 (Fla. 4th DCA 2009)). Further, “[w]hen an appellate court reviews the trial court’s denial of a motion for directed verdict, it must ‘view the evidence and all inferences in a light most favorable to the non-mov-ant, and should reverse if no proper view of the evidence could sustain a 'verdict in favor of the non-movant.’” Conrad v. Young, 10 So.3d 1154, 1157-58 (Fla. 4th DCA 2009) (quoting Weinstein Design Grp., Inc. v. Fielder, 884 So.2d 990, 997 (Fla. 4th DCA 2004)).

Viewing the evidence in this case in the light most favorable to the defendant, we do not find sufficient evidence to support the defendant’s seatbelt defense. First and foremost, the defendant failed to introduce any evidence that plaintiff was not wearing a seatbelt at the time of the accident. McCulloch, who arrived at plaintiffs vehicle several minutes after the accident, testified that he could not say one way or the other whether plaintiff was belted. Dr. Burton, the only expert to testify on this issue, said that he was not able to determine with reasonable certainty whether or not plaintiff was wearing a seatbelt at the time of the accident. The only direct evidence of seatbelt use came from plaintiff and her passenger, who both testified that she was wearing her seatbelt.

Moreover, even if a jury question on plaintiffs use of a seatbelt was created, there was no competent evidence that plaintiffs failure to wear her seatbelt caused or substantially contributed to her injuries. In Zurline, we held that for a defendant to submit a seatbelt defense to the jury, the defendant must present competent evidence that plaintiffs failure to wear the seatbelt caused or substantially contributed to her injuries. 642 So.2d at 1170. We emphasized that the burden is on the defendant to introduce competent evidence on causation for a seatbelt defense. Id. at 1171. Competent evidence of the causal relationship between the failure to use a seatbelt and the injury must not be “uncertain, speculative, or conjectural.” Id. at 1171, n. 8 (citing State Farm Mut. Auto. Ins. Co. v. Smith, 565 So.2d 751, 754 (Fla. 5th DCA), cause dismissed, 570 So.2d 1806 (Fla.1990)).

In Zurline, the plaintiff suffered severe injuries in a broadside collision. Id. at 1169. At trial, she mentioned headaches in addition to her other injuries during cross-examination. Id. at 1169-70. The defendant raised a seatbelt defense. Id. at 1170. Although the defendant proved a seatbelt was available and plaintiff did not have it on, no expert was asked whether plaintiffs failure to wear her seatbelt caused or substantially contributed to at least part of her injuries. Id. We found that “there was no competent evidence that [plaintiffs] failure to wear the seatbelt caused or substantially contributed to her injuries and for that reason the seatbelt defense should not have been submitted to the jury.” Id.

We recognized in Zurline that “[i]n some cases, a defendant will not need an expert to sustain his burden of proving the causal relationship between the injury sustained and plaintiffs failure to wear a seat belt.” Id. at 1171. For example, in Burns v. Smith, 476 So.2d 278, 279 (Fla. 2d DCA 1985), plaintiff was thrown from the car and suffered head and neck injuries. There, the second district found that expert testimony was not needed because “ ‘it was [not] beyond the province of the jury that “the failure to use an available and operational seat belt produced or contributed substantially to producing at least a portion of plaintiffs damages.” ’ ” Zurline, 642 So.2d at 1170 (quoting Burns, 476 So.2d at 279).

However, in State Farm, the fifth district found that the dynamics of seatbelts were not within the common understanding of the jury. 565 So.2d at 752-53. There, plaintiff was thrown around the inside of the car and sustained lower back injuries; these injuries did not “obviously” result from hitting the windshield, door, or dashboard. Zurline, 642 So.2d at 1170 (citing Smith, 565 So.2d at 754).

In Zurline, we discussed seatbelt fact patterns that might require expert testimony to establish the causal connection between the lack of a seatbelt and the injuries sustained:

The facts are perhaps more compelling in this case where the appellant was injured from a side collision rather than a frontal collision. The dynamics of seatbelt protection from injuries from side impacts may be even less a matter of common understanding than from frontal collisions. In fact, if the automobile in which [plaintiff] was driving did not have side impact protection, wearing a seatbelt may have actually increased [plaintiffs] chances of suffering fatal injuries in the crash. Thus, the “common understanding of the jury” cannot be substituted for proof where there is no evidence of the causal connection between the injuries suffered and the non-use of the seatbelt under the circumstances of this case. This is particularly apparent where the only injury identified by the trial court as occurring in a Bums-like situation was the post concussion headaches, which were not even rated as part of [plaintiffs] permanent injuries by her doctors.

Id. at 1171. We reversed the judgment due to the defendant’s failure to present “competent evidence that [plaintiffs] failure to wear the seatbelt caused or substantially contributed to her injuries and for that reason the seatbelt defense should not have been submitted to the jury.” Id. at 1170.

In DO & CO Miami Catering, Inc. v. Chapman, 899 So.2d 1236, 1237 (Fla. 3d DCA 2005), the fifth district affirmed the trial court’s decision granting plaintiffs motion for a directed verdict, where plaintiff asserted that the defendant did not introduce any evidence that tied plaintiffs injury to his failure to wear a seatbelt. The court found that DO & CO presented no evidence to meet its burden regarding the seatbelt defense. Id. at 1238.

Here, the trial court’s denial of plaintiffs motion for a directed verdict as to the seatbelt defense must be reversed because the defendant failed to present competent evidence establishing that plaintiffs failure to wear her seatbelt caused her injuries. This was a complex crash wherein plaintiff was partially ejected and injured while still in the vehicle. As in Zurline, the “common understanding of the jury” could not be substituted for proof where there was “no evidence of the causal connection between the injuries suffered and the nonuse of the seatbelt under the circumstances of this case.” 642 So.2d at 1171. The evidence presented by the defendant was uncertain, speculative, and conjectural. Further, as plaintiff argued, the defendant was unable to establish prima facie evidence on her two-prong burden regarding the seat-belt defense — that plaintiff was not wearing a seatbelt and that the failure to wear the seatbelt caused or contributed to her injuries — without impermissibly stacking inferences. See Stanley v. Marceaux, 991 So.2d 938, 940 (Fla. 4th DCA 2008) (reversing judgment on jury verdict based on an impermissible stacking of inferences).

Accordingly, we reverse the comparative fault finding and remand for entry of a directed verdict for plaintiff on that issue and final judgment for the full amount of the jury verdict.

As to defendant Hoelke’s cross-appeal of the trial court’s refusal to grant her a setoff for a hospital bill, we affirm because the record is not sufficient to establish that plaintiff had no remaining obligation to pay the hospital bill she incurred.

Affirmed in part, Reversed in part and Remanded.

WARNER and LEVINE, JJ., concur.