text:
    Alejandro Roy FOWLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5133.
    District Court of Appeal of Florida, First District.
    July 7, 2011.

      Alejandro Roy Fowler, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Alejandro Roy Fowler appeals an order denying his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The lower court denied five issues summarily and the three remaining issues following an evidentiary hearing. We affirm all but three of the issues that were summarily denied, because the trial court failed to attach portions of the record to support the ruling.

In Issue VI, the defendant contended that his trial counsel provided ineffective assistance by failing to object when the prosecutor asked defendant whether he believed that two of the state’s witnesses had fabricated portions of their testimony. Such questioning is improper. See Johnson v. State, 969 So.2d 938, 954 (Fla.2007); Knowles v. State, 632 So.2d 62, 65-66 (Fla.1993).

In Issue VII, defendant claimed that trial counsel should have objected when the prosecutor said during closing argument that defendant had not proclaimed his innocence when the police were investigating the robbery in his neighborhood, by telling them that someone else had used defendant’s gun to commit the robbery. Specifically, the prosecutor said: “Isn’t it reasonable to believe that a law abiding citizen would run out to the police and say hey, I got to tell you something. There’s a gun in here that was used in this armed robbery. And these guys, I want to tell you who they are. Did he do that? No, he didn’t.” Defendant’s claim established prima facie that the prosecutor thereby improperly shifted the burden of proof to the defendant. See Sackett v. State, 764 So.2d 719 (Fla. 2d DCA 2000).

Finally, in Issue IX, defendant claimed he was entitled to a new trial based upon newly discovered evidence consisting of a written recantation by one of the state’s key witnesses. The court observed that defendant had not attached the document to the record, but the record on appeal shows one page of the document, which defendant says was a mistake by the clerk’s office. The trial court attached the testimony of a different witness and of defendant to support the denial of this issue but did not attach the testimony of the witness who recanted. This court cannot conduct a meaningful review of this issue without being able to see the complete letter and sufficient portions of the transcript that show why it is unlikely that the recantation would result in an acquittal on retrial. See Murrah v. State, 773 So.2d 622 (Fla. 1st DCA 2000).

We affirm in part and reverse in part and remand for the lower court to attach portions of the record to refute these three claims or to hold an evidentiary hearing.

VAN NORTWICK, PADOVANO, and HAWKES, JJ., concur.


source: Caselaw Access Project

author: PALMER, J.

license: Public Domain

text:
    TRACI HANCOCK, as Mother and Natural, etc., Appellant, v. Fred B. SHARE, Guardian Ad Litem, et al., Appellee.
    No. 5D10-2069.
    District Court of Appeal of Florida, Fifth District.
    July 8, 2011.
    John S. Mills and Gregory J. Philo of The Mills Firm, P.A., Tallahassee, for Appellant.
    Scot E. Samis and Jennifer J. Kennedy of Traub, Lieberman, Straus, & Shrews-berry, L.L.P., St. Petersburg for Appellee Sharon Schuette.
    Fred B. Share, Holly Hill, Attorney Ad Litem for the minor.
   PALMER, J.

Traci Hancock, in her position as the mother and natural guardian of her minor child (the minor), appeals the order entered by the trial court approving, in part, a proposed settlement agreement. Determining that the trial court erred in refusing to approve the structured portion of the proposed settlement agreement, we reverse.

Traci Hancock was appointed guardian over property of the minor. The nature of the property subject to the guardianship was proceeds from a personal injury lawsuit.

Traci Hancock subsequently filed a petition seeking the trial court’s approval of a settlement agreement on behalf of the minor. The agreement provided for payment to Traci Hancock for her services as guardian, to the minor’s counsel for their services in the personal injury lawsuit and the guardianship proceedings, and to the minor for her tort damages. The petition stated that it was in the minor’s best interest that the lawsuit be settled. Of importance to the instant appeal, the petition further stated that the intent would be for the minor’s proceeds to be used to purchase “an annuity for the benefit of the minor child.” Notably, the proposed annuity provided for a structured settlement which was payable over the next twenty-seven years.

After hearing a summary of the terms of the proposed settlement agreement, the trial court asked counsel whether the minor would be able to “get her cash out of the annuity when she turns 18”. Counsel replied, “no”.

The trial court entered an order approving the settlement of the minor’s personal injury lawsuit, but refusing to authorize the purchase of a structured settlement annuity. The order reads:

The Court denies the guardian’s request for authority to purchase an annuity contract for the benefit of the minor child payable beyond the age of majority. The Guardian of the property has no authority to bind the assets of the ward beyond the age of majority pursuant to Florida Statute 744.441(19)[ ]; Guardianship of Bernstein v. Miller, 777 So.2d 1125 (Fla. 4th DCA 2001).

Traci Hancock maintains that the trial court erred, as a matter of law, in denying her request to approve the structured portion of the settlement agreement reached by the parties. We agree.

A trial court’s approval or disapproval of a specific exercise of power by a guardian falls within the discretion of the trial court. Rainey v. Guardianship of Mackey, 773 So.2d 118 (Fla. 4th DCA 2000). However, to the extent that the trial court’s ruling is based on statutory construction, this court’s review is de novo. Punsky v. Clay County Bd. of County Com’rs, 60 So.3d 1088 (Fla. 1st DCA 2011).

The trial court rejected the structured settlement annuity portion of the proposed settlement agreement, concluding that the court lacked the legal authority to approve said agreement because the terms of the agreement would remain in effect even after the date the minor turned eighteen years old. Specifically, the trial court concluded that section 744.361(6)(e) of the Florida Statutes (2009) required the court to ensure that, once the minor turned eighteen years old, the proceeds from her lawsuit would be available to her. The statute reads:

744.361. Powers and duties of guardian
(6) A guardian who is given authority over any property of the ward shall:
(a) Protect and preserve the property and invest it prudently as provided in chapter 518 [pertaining to the investment of fiduciary funds], apply it as provided in s. 744.397 [referring to application of income of property of ward], and account for it faithfully.
(b) Perform all other duties required of him or her by law.
(c) At the termination of the guardianship, deliver the property of the ward to the person lawfully entitled to it.

(Emphasis added). To support its conclusion, the trial court cited to Guardianship of Bernstein v. Miller, 777 So.2d 1125 (Fla. 4th DCA 2001). The trial court erred in relying on Bernstein.

In that regard, the appellants in Bernstein were Jacqueline and Joseph Bernstein who were minors at the time their father died. Their uncle was appointed to be the guardian of the property the children inherited from their father. After the uncle was appointed guardian, he and the children’s mother agreed that an irrevocable trust should be created for each child. The trial court eventually entered an order approving the creation of the irrevocable trusts under which the children could not receive the principal of their inheritances until they reached age thirty. Upon review, the Fourth District struck the trial court’s order, concluding that the trust agreements violated section 744.441(19) of the Florida Statutes which authorizes the creation of irrevocable trusts which extend beyond the disability of the ward only if the trust is created in connection with tax planning. 777 So.2d at 1127.

Here, there were no trust documents at issue and, thus, the limitation set forth in section 744.441(19) was not at issue. Instead, the parties in this case submitted a proposed annuity contract which, pursuant to section 744.441(21) of the Florida Statutes, a trial court is authorized to approve, provided that the contract is “appropriate for, and in the best interest of, the ward.” All parties and the trial court agreed that the annuity contract proposed by the parties in this case was in the minor’s best interest. In addition, section 744.361(6)(c) does not prohibit the entering into an annuity contract as long as the annuity contract is delivered to the ward at the termination of the guardianship. See § 774.102, Fla. Stat. (2009) (defining property as meaning “both real and personal property or any interest in it and anything that may be the subject of ownership.”). Accordingly, the trial court erred in refusing to approve the structured portion of the proposed settlement agreement.

REVERSED and REMANDED.

GRIFFIN and EVANDER, JJ„ concur.

      . Section 744.441 of the Florida Statutes (2009) reads, in relevant part, as follows:
      744.441. Powers of guardian upon court approval
      After obtaining approval of the court pursuant to a petition for authorization to act, a plenary guardian of the property, or a limited guardian of the property within the powers granted by the order appointing the guardian or an approved annual or amended guardianship report, may:

      (19) Create or amend revocable trusts or create irrevocable trusts of property of the ward's estate which may extend beyond the disability or life of the ward in connection with estate, gift, income, or other tax planning or in connection with estate planning. The court shall retain oversight of the assets transferred to a trust, unless otherwise ordered by the court.

      (21) Enter into contracts that are appropriate for, and in the best interest of, the ward.


author: WHATLEY, Judge. VILLANTI, Judge, SILBERMAN, Chief Judge,

text:
    D.J.P., JR., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2439.
    District Court of Appeal of Florida, Second District.
    July 8, 2011.

      James Marion Moorman, Public Defender, and Karen M. Kinney, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appel-lee.
   WHATLEY, Judge.

D.J.P. appeals an order adjudicating him to be delinquent after he admitted committing the offenses of burglary of an unoccupied dwelling and grand theft of a firearm. Although D.J.P. attempted to reserve his right to appeal the denial of a motion to suppress his confession, we conclude that the motion was not dispositive and affirm. At the hearing on the motion to suppress, the trial court and the State noted that there was no stipulation that the motion was dispositive. The trial court stated, “In fact it was the State that refused to stipulate because they believe they could go forward even [if the motion had been granted].” Thereafter at the change of plea hearing, the State asserted that there were other witnesses who could identify D.J.P.

In M.N. v. State, 16 So.3d 280, 281 (Fla. 2d DCA 2009), the appellant entered a plea to the charges contingent on his ability to appeal the denial of a pretrial motion, the trial court accepted the plea and noted the appellant’s reservation of his right to appeal, but the trial court failed to expressly find that the motion was dispositive. This court affirmed in M.N., holding that the appellant’s motion was not dispositive because the State could go forward at trial even if the.appellant had prevailed on the appeal of the trial court’s order. Id. at 281-82; see also Weber v. State, 492 So.2d 1166, 1167 (Fla. 4th DCA 1986) (refusing to infer stipulation where there was no language in the transcript that could be construed to be a stipulation and the State’s factual bases for the charge indicated that the confession was not dispositive).

Accordingly, we affirm.

VILLANTI, J., Concurs specially with opinion.

SILBERMAN, C.J., Concurs specially with opinion.

VILLANTI, Judge,

Specially concurring.

I fully concur in the majority opinion but write to note that DJ.P.’s failure to obtain a definitive ruling on the dispositiveness of his motion from the trial court precludes review of the denial of that motion in this appeal. Florida Rule of Appellate Procedure 9.140(b)(2) provides in pertinent part:

A. Pleas. A defendant may not appeal from a guilty or nolo contendere plea except as follows:
(i).... A defendant who pleads guilty or nolo contendere may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved.

(Emphasis added.) Similarly, section 924.051(4), Florida Statutes (2007), likewise provides: “If a defendant pleads nolo contendere without expressly reserving the right to appeal a legally dispositive issue, or if a defendant pleads guilty without expressly reserving the right to appeal a legally dispositive issue, the defendant may not appeal the judgment or sentence.” (Emphasis added.) This rule and statute do not constitute a jurisdictional bar to appellate review, but they do expressly limit the issues that can be addressed on appeal following a guilty plea. Leonard v. State, 760 So.2d 114, 118 (Fla.2000).

The record in this case does reflect some initial uncertainty in the trial court’s intent concerning a ruling on dispositiveness. However, at the change of plea hearing, the trial court clearly found, based on the State’s representations as to other available evidence, that the denial of the motion to suppress was not dispositive of the charges against D.J.P. Because the only issue raised in this appeal hinges on a finding that the denial of D.J.P.’s motion to suppress was dispositive and because that denial was not expressly found to be dis-positive below, we must summarily affirm. Id. at 119 (explaining that a district court should affirm summarily when it finds that an appeal from a guilty or nolo contendere plea does not present an issue preserved in accordance with section 924.051(4)).

SILBERMAN, Chief Judge,

Specially concurring.

I fully concur in the result reached in the majority opinion. I write to note that our decision does not preclude D.J.P. from filing a timely petition for writ of habeas corpus seeking to withdraw his plea as involuntary. See M.N. v. State, 16 So.3d 280, 282 (Fla. 2d DCA 2009).

Although the trial court’s ruling on D.J.P.’s motion to suppress was not dispos-itive, it is clear from the record that D.J.P. entered his negotiated, no contest plea to a reduced charge with the understanding that he could obtain appellate review of the order denying his motion to suppress. The plea form signed by D.J.P., his guardian, his attorney, and the trial court states in two places that D.J.P. entered his plea while reserving for appellate review the trial court’s denial of his motion to suppress. Further, the transcript of the change of plea hearing reflects extensive discussion by D.J.P., his attorney, and the trial court that in entering his plea, D.J.P. would be able to obtain appellate review of the order denying his motion to suppress. The trial court elaborated as follows:

Well, I can’t give you legal advice on how to appeal. I just can’t give you legal advice, but your time to file an appeal, which you absolutely have the right to do. You’ve reserved that right. I’m granting you that right....
I have no doubt that you will be fully advised on how to pursue your appellate rights that you’ve reserved.
I fully expect you to appeal. I’m not offended by that and if the appellate court reverses me then I have to follow their-their infinite wisdom.

Because D.J.P. could not get the benefit of his bargain regarding appellate review of the suppression order, his plea appears to be involuntary. Thus, D.J.P. is entitled to seek to withdraw his plea. Of course, if he is successful in doing so, he will likely lose the other benefits obtained through his negotiated plea.


author: PER CURIAM. WOLF, J.,

text:
    SCHOOL DISTRICT OF HILLSBOROUGH COUNTY/BROADSPIRE, Appellants, v. Maryann DICKSON, Appellee.
    No. 1D10-2909.
    District Court of Appeal of Florida, First District.
    July 12, 2011.

      Samuel E. Cooley and Scot E. Samis of Abbey, Adams, Byelick, Kiernan, Mueller, Marone & Samis, LLP, St. Petersburg, for Appellants.
    Michael J. Winer and Raymond F. Ayres, II, of the Law Office of Michael J. Winer, P.A., Tampa, for Appellee.
   PER CURIAM.

This is an appeal from a final workers’ compensation order awarding Claimant, Maryann Dickson, compensation for the second arthroscopic surgery she underwent to repair her injured knee. We reverse, finding the Judge of Compensations Claims (JCC) erred in awarding compensation based on its improper application of section 440.20(4), Florida Statutes (2010), and subsequent determination that the Employer/Carrier (E/C) waived its right to deny compensability.

Background

On September 17, 2008, Claimant slipped on a wet walkway in her workplace and tore the posterior horn of the medial meniscus in her left knee. After the injury was deemed compensable, Claimant transferred her medical care to Dr. Scott Goldsmith. Dr. Goldsmith performed arthroscopic surgery on the knee and prescribed Claimant post-surgery physical therapy. Upon her completion of physical therapy, Dr. Goldsmith noted Claimant had no complaints of give-away weakness in her rehabilitated knee.

On July 5, 2009, Claimant again injured the same knee while walking around the swimming pool at her home. The following day, she visited Dr. Goldsmith, described the injury and voiced new complaints of pain in the medial aspect of her knee. Dr. Goldsmith initially opined that Claimant had aggravated the 2008 injury, disagreeing with a radiologist’s interpretation of an MRI that showed a new tear of the medial meniscus. However, when Claimant’s localized complaints continued, Dr. Goldsmith reexamined the MRI and concluded Claimant had suffered a new meniscal tear in the knee. Claimant underwent a repeat arthroscopy to confirm the diagnosis and debride the new tear.

On September 29, 2009, the E/C sent a letter to Dr. Goldsmith inquiring whether the original 2008 “accident” was the major contributing cause of the new meniscal tear. Dr. Goldsmith indicated it was not. A week later, the E/C sent Dr. Goldsmith a second letter, asking whether Claimant had reached maximum medical improvement from her 2008 injury and whether she sustained a permanent impairment as a result of that injury. Dr. Goldsmith indicated that but for her July 5 fall at home, Claimant would have reached maximum medical improvement for the first injury in late July, 2009. Dr. Goldsmith also reiterated that the injury sustained in the second fall was a new injury, unrelated to the 2008 injury.

Based on Dr. Goldsmith’s opinion, the E/C had its adjuster prepare a notice, denying compensation for the new injury. The date listed on the notice of denial was November 27, 2009.

Compensation Hearing

At a hearing before the JCC, Claimant sought authorization for the second ar-throscopy as well as continued treatment for her left knee. The E/C denied any causal relationship existed between the 2008 accident and Claimant’s current injury, specifically asserting that a compensa-ble accident was not the major contributing cause of the need for the arthroscopy or any other continuing treatment for her knee.

The JCC found, based in part on Dr. Goldsmith’s testimony, that Claimant had a new “accident” and suffered a new injury when she fell on July 5, 2009. However, despite neither party arguing for application of the provisions of section 440.20(4)— which gives the E/C a 120-day window from the time it first provides medical treatment to investigate compensability of a claim, after which it cannot deny com-pensability — the JCC found the provision to be “mandatory,” requiring her to apply it to the facts of this case. Thus, because 120 days had ostensibly passed between the date the E/C received notice of Claimant’s new injury and the date the E/C denied compensability, the JCC found she was compelled to conclude that the E/C waived the right to deny compensability.

Thereafter, the E/C filed a motion for rehearing, asserting it was improper for the JCC to make a ruling based on section 440.20(4)’s 120-day provision because: (1) it was outside the scope of the issues presented; and (2) the JCC misapprehended or overlooked pertinent facts related to the application of the 120-day provision. Attached to the motion was an affidavit signed by the E/C’s adjuster asserting that, upon review of her file, she discovered that the notice of denial contained a typographical error and was actually issued on October 27, 2009 (within the 120-day period), not November 27, 2009. The JCC denied the E/C’s motion, finding that:

The provisions of F.S. 440.20(4) are mandatory and not in the nature of an affirmative defense. I cannot overlook such provisions in drawing my conclusions of law. It was incumbent upon the adjuster to be aware of mandatory statutory provision and to provide accurate testimony at the time of trial, not after I enter my final compensation order.

Analysis

We reverse the JCC’s ruling for two reasons: First, the JCC violated the E/C’s right to due process by sua sponte raising the application of section 440.20(4) and denying the E/C the opportunity to present evidence regarding the section’s applicability. Second, section 440.20(4) does not operate to preclude an E/C from denying a specific claim for benefits on grounds that the claimant’s need for such benefits did not stem from a compensable accident or injury.

Regarding due process, it is a longstanding tenet of workers’ compensation law that parties are entitled to notice of the issues to be determined at the final hearing, and “[a]n order that is not in accord with the understanding with which the workers’ compensation hearing was undertaken and participated in is a denial of due process and must be reversed.” Commercial Carrier Corp. v. LaPointe, 723 So.2d 912, 915 (Fla. 1st DCA 1999) (citing Se. Recycling v. Cottongim, 639 So.2d 155, 157 (Fla. 1st DCA 1994) (internal citations omitted)).

Under section 440.20(4), if an E/C fails to contest compensability of an injury within 120 days of the initial provision of benefits or the payment of compensation, it has the burden of producing evidence to “establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period.” § 440.20(4) Fla. Stat. (2010); see also Mims v. Confederated Staffing, 940 So.2d 518 (Fla. 1st DCA 2006). Thus, prior to determining whether an E/C has waived the right to deny compensability pursuant to section 440.20(4), a JCC should afford the E/C the opportunity to present evidence to refute allegations that it failed to deny a claim in a timely fashion.

Here, the JCC denied the E/C due process when she sua sponte raised the application of section 440.20(4) without affording the E/C the opportunity to present evidence regarding the section’s applicability. Additionally, by finding “as a matter of law the E/C cannot deny compensability of claimant’s knee injury sustained on 7/5/09” and mischaracterizing section 440.20(4) as “mandatory” and “not in the nature of an affirmative defense,” the JCC improperly denied the E/C the opportunity to establish material facts that could be used to prove it did timely deny benefits.

Regarding the applicability of section 440.20(4), it is well settled that a waiver resulting from an E/C’s failure to deny compensability within 120 days of an initial provision of benefits pertains solely to the concept of compensability. See Checkers Restaurant v. Wiethoff, 925 So.2d 348 (Fla. 1st DCA 2006).

Section 440.20(4) operates only to resolve the issue of whether a claimant suffered a compensable workplace injury, not to preclude an E/C from challenging the claimant’s entitlement to benefits, particularly whether the originally compensable workplace injury was the major contributing cause of the need for specific benefits. See id. (holding a claimant was not entitled to continuing medical benefits for an injury because, although the E/C did not deny compensability within the 120-day period, evidence showed that the major contributing cause of the claimant’s need for surgery was her preexisting condition); and see Mims, 940 So.2d at 520 (holding while section 440.20(4) does bar the carrier from denying compensability after the expiration of the 120-day pay- and-investigate period, it does not have the effect of precluding the carrier from denying a specific claim for benefits on the ground that the injuries resulting from the compensable accident were not the major contributing cause of the claimant’s need for such benefits).

Here, the E/C had agreed to provide coverage for injuries caused by Claimant’s 2008 accident. In 2009, when it authorized benefits for Claimant’s new injury, it believed (pursuant to Dr. Goldsmith’s diagnosis) it was paying for treatment of an injury caused by the 2008 accident. It was not until later that the E/C learned the 2008 accident was not the major contributing cause of the second tear to Claimant’s medial meniscus and initiated a challenge to Claimant’s entitlement to treatment.

As noted, section 440.20 does not preclude an E/C from denying a claim for benefits on the ground that a compensable accident was not the major contributing cause of the injury the claim is based on. Thus, even if the JCC had not erred in its sua sponte application of section 440.20(4) and the E/C were unable to prove it issued its notice of denial within 120 days of authorizing treatment, the section would not preclude the E/C from disputing Claimant’s right to benefits.

Because the JCC’s sua sponte application of section 440.20(4) was in error, and because section 440.20(4) is inapplicable to claimant’s challenges regarding whether a compensable accident was the major contributing cause of an injury, we reverse.

REVERSED and REMANDED for proceedings consistent with this opinion.

HAWKES and MARSTILLER, JJ., concur; WOLF, J., Concurs with Opinion.

WOLF, J.,

Concurs.

I concur in that portion of the opinion finding the JCC violated the E/C’s right to due process by sua sponte raising the application of section 440.20(4), Florida Statutes, and denying the E/C the opportunity to present evidence regarding the section’s applicability. I would remand to allow the parties to present evidence as to that issue.


author: WETHERELL, J.

text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant, v. Amanda Jean HALL, as Personal Representative for the Estate of Arthur Hall Sr., Appellee.
    No. 1D10-2820.
    District Court of Appeal of Florida, First District.
    July 12, 2011.

      Stephanie E. Parker and Gregory G. Katsas, of Jones Day, Atlanta, Georgia; and Charles Trippe, of Moseley Prichard Parrish Knight & Jones, Jacksonville, Florida, for Appellant.
    Rod Smith, Mark A. Avera, and Dawn M. Vallejos-Nichols, of Avera & Smith, LLP, Gainsville, Florida; and John S. Mills and Gregory J. Philo, of The Mills Firm, Tallahassee, Florida, for Appellee.
   ON MOTION FOR REVIEW OF STAY ORDER

WETHERELL, J.

Appellee seeks review of the trial court’s order denying her motion challenging the sufficiency of the bond posted by Appellant, R.J. Reynolds Tobacco Company (RJR), pursuant to section 569.23(3), Florida Statutes (2010), to obtain a stay of the judgment in this Engle progeny case. Appellee contends that the bond is insufficient because the statute upon which it is based is unconstitutional. We reject Appellee’s constitutional challenges to section 569.23(3) and affirm the trial court’s order.

Appellee obtained a $15.75 million judgment against RJR in this case. RJR appealed the judgment to this court and obtained an automatic stay of the judgment by posting a $5 million bond in accordance with section 569.23(3), rather than the approximately $17.6 million bond that would have been required for a stay under Florida Rule of Appellate Procedure 9.310(b)(1). Appellee filed a motion with the trial court to determine the sufficiency of the bond and, in that motion, Appellee argued that section 569.23(3) was unconstitutional. The Attorney General was permitted to intervene to defend the constitutionality of the statute. After a hearing, the trial court denied the motion, citing an unpublished order of this court in another Engle progeny case and the Third District Court of Appeal’s decision in BDO Seidman, LLP v. Banco Espirito Santo International, Ltd. Appellee seeks review of the trial court’s order pursuant to rule 9.310(f).

As she did below, Appellee contends in her motion for review that section 569.23(3) is unconstitutional because 1) it is a special law granting a privilege to a corporation in violation of article III, section ll(a)(12) of the Florida Constitution, and 2) it impermissibly intrudes on the Florida Supreme Court’s authority to regulate practice and procedure in the courts under article V, section 2(a), thereby violating the separation of powers mandate in article II, section 3. Each claim will be addressed in turn after a brief discussion of the background, history and operation of section 569.23(3).

Background

In 1995, the State of Florida sued RJR and other cigarette manufacturers, asserting various claims for monetary and in-junctive relief. See State of Fla., et al. v. Am. Tobacco Co., et al., Case No. 95-1466 AH, 1996 WL 788371 (Fla. 15th Cir.Ct.). The suit was resolved in 1997 through a settlement agreement (commonly referred to as “the FSA”) that, among other things, required RJR and the other settling companies to pay the State approximately $13 billion over 25 years along with additional payments that will continue in perpetuity. The payments have been as high as $765 million and are projected to be approximately $350 million per year in the upcoming fiscal years. The payments are used to fund various state agencies and programs, including the comprehensive statewide tobacco education and prevention program mandated by article X, section 27 of the Florida Constitution. See Art. X, § 27(b), Fla. Const. (requiring 15% of the total gross funds that tobacco companies pay the State under the FSA to be used to fund the constitutionally-mandated tobacco education and prevention program).

Starting in 2000, the Florida Legislature passed several statutes in response to concerns about the potential adverse impact of large verdicts in suits filed by individual smokers on the ability of the tobacco companies to continue to make the payments required by the FSA. The clear purpose and intent of these statutes was to protect the State’s pecuniary interest in the revenue stream under the FSA.

In 2000, the Legislature enacted section 768.733, Florida Statutes. This statute established a $100 million cap on the bond or other security required to stay execution of a punitive damage award in a certified class action. See § 768.733(2), Fla. Stat. (2000) (limiting the bond to the lesser of the amount of the punitive damages plus interest or 10% of the defendant’s net worth, but in no event more than $100 million). At the time, Engle was proceeding as a class action and the jury had awarded $146 billion in punitive damages against RJR and the other defendants in that case. The Legislature was concerned that “the State of Florida itself would be at risk in its continued receipt of settlement payments if the ability of participating manufacturers to make the payments were threatened by a requirement that the manufacturers immediately pay massive awards of punitive damages.” See Fla. CS for SB 1720 (2000) (First Engrossed) (providing legislative intent for section 768.733 as recognized in Fla. S. Jour. 1442 (Reg. Sess. 2000)); see also Fla. H.R. Comm. on Fin. Servs. CS/HB 1721 Staff Analysis 1, 4 (final July 13, 2000) (on file with comm.) (explaining that section 768.733 was part of a comprehensive bill designed to protect the state’s proceeds under the FSA, and noting that “[wjhile the tobacco settlement payments are to be made in perpetuity, there is concern by some that the companies may declare bankruptcy and default on their obligations” because of lawsuits such as Engle).

In 2003, the Legislature enacted section 569.23. This statute established a $100 million cap on the bond or other security that a signatory to the FSA had to post in order to obtain a stay of any judgment pending appeal. See § 569.23(1), Fla. Stat. (2003) (cross-referencing section 215.56005(1)(f), which defined “tobacco settlement agreement” to mean “the settlement agreement, as amended, entered into by the state and participating cigarette manufacturers in settlement of State of Florida v. American Tobacco Co., No. 95-1466 AH, 1996 WL 788371 (Fla. 15th Cir. Ct.1996)”). As was the case with section 768.733, the enactment of section 569.23(3) was based on concerns that the FSA signatories might default on their obligations to the State if they could not afford the bond required to stay an extremely large money judgment pending appeal. See Fla. S. Comm, on Judiciary SB 2826 Staff Analysis 3 (Apr. 18, 2003) (on file with comm.).

Section 569.23 was amended in 2009 in response to the Florida Supreme Court’s decision in Engle, which had the practical effect of decertifying the class in that case. The legislative staff analysis for the 2009 amendments explained:

In 2006, the Florida Supreme Court de-certified a class action lawsuit [Engle ] but authorized the members of the class to bring individual lawsuits within a certain time period. As a result of this case, there are approximately 3,000 separate lawsuits in which damages may be awarded. Prior to this decertification, the class action suit would have been covered by the supersedeas bond cap in s. 569.23, F.S. However, the separate 3,000 cases are not currently covered by s. 569.23, F.S., which would mean that the tobacco companies may have to post supersedeas bonds in up to 3,000 separate cases that could cumulatively total billions of dollars.

Fla. S. Comm. on Judiciary CS/SB 2198 Staff Analysis 5 (Apr. 23, 2009) (on file with comm.); see also id. at 3 (noting that the cost of the individual and class action lawsuits against the FSA signatories is a factor affecting the stability of the tobacco settlement payments).

The 2009 amendments retained and revised the $100 million bond limit created in 2003. See § 569.23(2), Fla. Stat. (clarifying that the $100 million is cumulative for all appellants). The amendments also added a new subsection (3), which provides in pertinent part:

(a)l. In civil actions against a signatory, or a successor, parent, or affiliate of a signatory, to a tobacco settlement agreement brought by or on behalf of persons who claim or have been determined to be members of a former class action that was decertified in whole or in part, the trial courts shall automatically stay the execution of any judgment in any such actions during the pendency of all appeals or discretionary appellate reviews of such judgment in Florida courts, upon provision of security as required in this paragraph. All security shall be provided through the posting with or payment into the registry of the clerk of the Supreme Court.
2. The total amount of security that must be provided for all appellants collectively with regard to a single judgment is equal to the lesser of the amount of the judgment to be stayed or the amount of security per judgment required based on the following tiers of judgments on appeal in the courts of this state at the time the security is provided:
TIER— NUMBER OF JUDGMENTS AMOUNT OP SECURITY PER JUDGMENT MAXIMUM TOTAL ALL SECURITY
1-40 $5,000,000 $200,000,000
41-80 $2,500,000 $200,000,000
81-100 $2,000,000 $200,000,000
101-150 $1,333,333 $109,999,950
151-200 $1,000,000 $200,000,000
201-300 $ 666,667 $200,000,100
301-500 $ 400,000 $200,000,000
501-1,000 $ 200,000 $200,000,000
1,001-2,000 $ 100,000 $200,000,000
2,001-3,000 $ 66,667 $200,001,000
3. In cases having multiple defendants, an individual appellant shall provide security in proportion to the percent or amount of liability specifically allocated against that appellant in the judgment, or, if liability is not specifically allocated in the judgment, for a share of the unallocated portion of the judgment determined by dividing the unallocated portion of the judgment equally among all defendants against whom the judgment is entered. Once an appellant has provided its required security with respect to a judgment, that appellant is entitled to a stay of that judgment regardless of whether other defendants in that case have provided the security required of them.
4. When the number of judgments on appeal changes so that the total is within a higher or lower tier, the amount of security required in each case shall change by operation of law, upon notice provided by any party to all other parties and upon deposit within 30 days after notice of any additional security required hereunder, from the amount of security previously posted to an amount consistent with the statutory appeal bond rights prescribed in this paragraph ....
(c) A claim may not be made against the security provided by an appellant unless an appellant fails to pay a judgment in a case covered by this subsection within 30 days after the judgment becomes final. For purposes of this subsection, a judgment is “final” following the completion of all appeals or discretionary appellate reviews, including reviews by the United States Supreme Court. If an appellant fails to pay a judgment within such time period, the security for that judgment provided by that appellant shall be available to satisfy the judgment in favor of the appellee. Upon satisfaction of the judgment in any case, the clerk of the Supreme Court may refund any security on deposit with respect to that ease to the appellant upon an order from the trial court confirming satisfaction of the judgment.

§ 569.23(3), Fla. Stat.

Section 569.23(3) has two main components. First, it provides that, upon posting a bond or other security in accordance with the statute, a signatory to the FSA is entitled to an automatic stay of the judgment in any civil case brought by or on behalf of a person who was a member of a decertified class action. § 569.23(3)(a)l., Fla. Stat. Second, and most pertinent to the issue framed by Appellee’s motion for review, the statute limits the amount of security that the signatory is required to post in order to obtain the automatic stay provided by the statute. § 569.23(3)(a)2., Fla. Stat. The limit is tied to the number of cases on appeal, subject to a cumulative cap of $200 million. Id. Currently, there are less than 40 judgments on appeal, so the maximum security required to obtain a stay under the statute is the lesser of the amount of the judgment or $5 million.

The statute also imposes several reporting and record retention requirements on the FSA signatories and the Clerk of the Florida Supreme Court. See § 569.23(3)(e), Fla. Stat. This information is maintained on the supreme court’s website. See http://www.floridasupremecourt. org/clerk/bonds.shtml.

With this background in mind, we turn to Appellee’s claims that section 569.23(3) is unconstitutional.

Section 569.23(3) is Presumed Constitutional

Like any other statute, section 569.23(3) comes to this court with a presumption of constitutionality. In re Estate of Caldwell, 247 So.2d 1, 4 (Fla.1971). All reasonable doubts as to the validity of the statute are to be resolved in favor of constitutionality. Id. Also, the court is required to give deference to classifications contained in the statute and such deference “•will be observed in all cases where the court cannot say on its judicial knowledge that the Legislature could not have had any reasonable ground for believing that there were public considerations justifying the particular classification and distinction made.” Lewis v. Mathis, 345 So.2d 1066, 1068 (Fla.1977).

Section 569.23(3) is not a Special Law

Appellee contends that section 569.28(3) is a special law and that it violates article III, section ll(a)(12) because of its narrow application and the benefits it grants to RJR and the other FSA signatories. We reject this claim.

Article III, section ll(a)(12) provides that “[tjhere shall be no special law ... pertaining to ... grant of privilege to a private corporation.” This provision operates as a limitation on the authority of the Legislature and, thus, a law passed in contravention of this limitation is unconstitutional. See Lawnwood Med. Ctr., Inc. v. Seeger, 990 So.2d 503, 509 (Fla.2008) (invalidating a statute that provided a special benefit to a single hospital and holding that the term “privilege” is not limited to economic benefits).

The parties disagree on whether section 569.23(3) is a special law. If the statute is a special law, then it is subject to the limitations in article III, section 11; if, however, the statute is a general law, then article III, section 11 is not applicable. Thus, before considering whether section 569.23(3) has the effect of granting a “privilege” to the FSA signatories, it is necessary to consider the threshold question of whether the statute is a general or special law.

The Florida Supreme Court has explained that a special law is “one relating to, or designed to operate upon, particular persons or things, or one that purports to operate on classified persons or things when classification is not permissible or the classification adopted is illegal.” Id. (quoting Dep’t of Bus. & Prof'l Regulation v. Gulfstream Park Racing Ass’n, 967 So.2d 802, 807 (Fla.2007)). By contrast, a general law is “a statute relating to ... subjects or to persons or things as a class, based on proper distinctions and differences that inhere in or are peculiar or appropriate to the class.” Id. (quoting State ex rel. Gray v. Stoutamire, 131 Fla. 698, 179 So. 730, 733 (1938)); see also Dep’t of Bus. & Prof'l Regulation v. Classic Mile, Inc., 541 So.2d 1155, 1157 (Fla.1989) (“A law that operates universally throughout the state, uniformly on subjects as they may exist throughout the state, or uniformly within a permissible classification is a general law.”).

Appellee contends that section 569.23(3) is a special law because it applies only to the five tobacco companies that signed the FSA and the plaintiffs in the Engle progeny cases. The narrow scope of section 569.23(3) is not necessarily dispositive of whether the statute is a special law because the Florida Supreme Court has explained that “a law does not have to be universal in application to be a general law if it materially affects the people of the state.” St. Johns River Water Mgmt. Dist. v. Deseret Ranches of Fla. Inc., 421 So.2d 1067, 1069 (Fla.1982); see also Schrader v. Fla. Keys Aqueduct Auth., 840 So.2d 1050 (Fla.2003) (concluding that a law applicable only in Monroe County was a general law, not a special law, because it served an important and necessary purpose and had statewide impact). Indeed, the supreme court has previously found statutes that have a narrow application to be general laws, rather than special laws, where the statute served an important statewide purpose. See Schrader, 840 So.2d at 1055-56 (citing cases).

For example, in Department of Legal Affairs v. Sanford-Orlando Kennel Club, the supreme court upheld a statute that benefitted a single pari-mutuel racing facility. The court rejected the contention that the law’s narrow scope transformed it from a general law into a special law, reasoning that:

A general law operates uniformly, not because it operates upon every person in the state, but because every person brought under the law is affected by it in a uniform fashion. Uniformity of treatment within the class is not dependent upon the number of persons in the class.

Id. at 881. In upholding the statute, the court explained that the State “has a legitimate pecuniary interest in racing because of the substantial revenue it receives from pari-mutuel betting” and that the classification in the statute was directly related to this interest. Id. at 881-82. The significance of the statute’s purpose to the decision upholding the statute was emphasized by the last paragraph of the opinion, which stated:

This state’s interest in recreational racing and wagering is substantial. Not only does it enhance the tourist industry by providing entertainment and interest to our visitors, but the tax revenues have significantly aided our statewide programs. We find it very appropriate for the legislature to assist this industry as it would any other in like circumstances.

Id. at 883.

Likewise, in this case, we agree with RJR that the protection of the State’s pecuniary interest in the revenue stream under the FSA is a matter of significant statewide importance and that the bond limitations in section 569.23(3) are reasonably related to this important state interest. The significant revenues from the FSA are used to fund a variety of state programs and, according to the papers filed by the Attorney General in the trial court, “[i]f that revenue stream is disrupted by the financial instability of the companies due to a requirement to post exorbitantly large bonds, the fiscal health of the State may be threatened and important programs providing essential support to Florida citizens will be at risk.” It is not for us to say whether the Legislature could have or should have chosen other means to achieve this end; rather, as noted above, in evaluating a claim that a statute is a special law because of its narrow focus, we must give deference to the classifications in the statute unless we can say that the Legislature “could not have had any reasonable ground for believing that there were public considerations justifying the particular classification and distinction made.” Lewis, 345 So.2d at 1068. Here, the importance of the FSA revenue stream to the State and the prospect of a multitude of individual multi-million jury awards against the FSA signatories (whether arising out of Engle or other decertified class actions) provides an adequate justification for the narrow focus of the section 569.23(3).

The supreme court also explained in Sanford-Orlando Kennel Club that it did not matter that the members of the Legislature knew that the statute would benefit a single facility or that, once passed, the law only benefitted one facility. See 434 So.2d at 882. Rather, the “controlling point” was whether the statute had the potential to apply to other facilities in the future. Id.; see also Dept. of Bus. & Prof'l Regulation v. Gulfstream Park Racing Ass’n, Inc., 912 So.2d 616, 621-22 (Fla. 2005) (“Whether a statute is a special law depends on its potential applicability to others who may come within the regulated class.... The critical question is not one of legislative intent; rather, it is whether the class regulated by the statute is open.... [T]he proper standard is whether there is a reasonable possibility that the class will include others.”); St. Vincent’s Med. Ctr. v. Mem’l Healthcare Grp., Inc., 967 So.2d 794, 802 (Fla.2007) (“[WJhether a law has general application turns on a determination of whether its application to others is reasonable or practical, not theoretical or speculative. The question of general application is not to be guided by irrational speculation that anything is possible”).

Section 569.23(3), like the statute at issue in Sanford-Orlando Kennel Club, was specifically intended to apply to the Engle litigation and, at the time of its passage, the scope of the statute’s application was limited to that litigation. This is clear from the statute’s legislative history. However, the statute is not limited to judgments entered in favor of Engle plaintiffs; it applies in any civil case against an FSA signatory brought by or on behalf of a member of a decertified class action. It is not unreasonable to expect that the FSA signatories, which include the nation’s four largest tobacco companies, may be the subject of other class actions that end up being decertified. Indeed, due to the tobacco industry’s reputation as a deep-pocket defendant and “a present-day popular villain,” the likelihood that section 569.23(3) will have a broader application than the Engle progeny cases is certainly not theoretical or speculative; thus, the class of cases subject to the statute is not closed.

In sum, we conclude that section 569.23(3) is a general law, not a special law. Accordingly, the provisions of article III, section 11 are not implicated and it is not necessary to consider whether, under Lawnwood Medical Center, the bond limitation in section 569.23(3) is a “privilege” granted to the FSA signatories.

Section 569.23(3) Does Not Violate Separation of Powers

Appellee also contends that section 569.23(3) violates the separation of powers mandate in article II, section 3 because the statute addresses a purely procedural matter over which the Florida Supreme Court has exclusive rulemaking authority under article V, section 2(a). We reject this claim.

Article V, section 2(a) provides in pertinent part that “[t]he supreme court shall adopt rules for the practice and procedure in all courts.... ” This provision gives the Florida Supreme Court authority to adopt procedural rules; it does not authorize the court to make substantive law. Conversely, this provision, in conjunction with article II, section 3, prohibits the Legislature from enacting purely procedural statutes. See State v. Raymond, 906 So.2d 1045, 1048-49 (Fla.2005) (declaring statute unconstitutional under article II, section 3 because it created a new procedural rule). The line between procedure and substance is fuzzy, at best, and “[tjhe entire area of substance and procedure may be described as a ‘twilight zone’ and a statute or rule will be characterized as substantive or procedural according to the nature of the problem for which a characterization must be made.” In re Florida Rules of Criminal Procedure, 272 So.2d 65, 66 (Fla.1972) (Adkins, J., concurring).

Appellee contends that section 569.23(3) impermissibly intrudes upon the supreme court’s rulemaking authority because the circumstances under which a judgment may be stayed pending appeal is a purely procedural matter. RJR responds that the establishment of a limitation on the amount of bond required to stay a judgment pending appeal is a substantive matter within the purview of the Legislature. We need not wade into the murky waters of procedure verses substance to resolve this case because, even if granting a stay pending appeal is a procedural matter, the stay rule adopted by the supreme court expressly contemplates that the requirements for obtaining a stay may be established by general law.

Rule 9.310(a) provides that “... a party seeking to stay a final or non-final order pending review shall file a motion in the lower tribunal, which shall have continuing jurisdiction, in its discretion, to grant, modify, or deny such relief.” Thus, the rule establishes how a stay is to be obtained (by filing a motion), where the motion is to be filed (in the trial court), and what authority the trial court has upon receipt of the motion (to grant, modify, or deny a stay). However, the rule also recognizes that general law and the rule itself may provide different requirements for obtaining a stay because the language quoted above is preceded by a clause stating “[e]x-cept as provided by general law and in subdivision (b).” Fla. R.App. P. 9.310(a); see also BDO Seidman, 998 So.2d at 2 (recognizing that “Rule 9.310(a) expressly authorizes modifications to its terms as ‘provided by general law’ ”); In re Proposed Florida Appellate Rules, 351 So.2d 981, 1010 (Fla.1977) (stating in the commentary to rule 9.310 that “[t]he rule preserves any statutory right to a stay”).

Section 569.23(3) clearly falls within the “except as provided by general law” clause. The statute — which, as discussed above, is a general law — establishes different requirements for obtaining a stay of a judgment entered against a signatory to the FSA in certain types of cases. The statute operates similar to rule 9.310(b)(1) in that it provides for an automatic stay of the judgment upon the posting of a bond; but it also establishes limits on the amount of the bond required to secure the stay. The establishment of limits on the amount of the bond required for a stay pending appeal is a substantive matter within the purview of the Legislature and, thus, section 569.23(3) does not impermissibly intrude on the authority granted to the Florida Supreme Court by article V, section 2(a).

Our sister court came to the same conclusion in BDO Seidman. In that case, the Third District rejected a constitutional challenge to the $50 million bond cap in section 45.045, Florida Statutes. See 998 So.2d at 2. The court noted that the statute “concerns substantive rights to property and to appeal,” id., and it reasoned that “since the legislature holds the power to preclude stay of payment, it likewise holds the power to limit the amount required to secure a payment stay.” Id. at 3.

BDO Seidman relied on St. Mary’s Hospital, Inc. v. Phillipe, in which the supreme court rejected a constitutional challenge to a statute that eliminated the trial court’s discretion to stay a medical malpractice arbitration award because, under rule 9.310(a), the court’s discretion was subject to exceptions in general law. See 769 So.2d at 966-67. Although the supreme court ultimately grounded its decision upholding the statute on the fact that the parties agreed to participate in the arbitration process that included the challenged statute, the court clearly recognized the Legislature’s authority to impose limitations on the trial court’s authority to grant stays when it observed that rule 9.310(a) “gives the trial court discretion to enter a stay subject to exceptions ... ‘by general law.’” Id. at 966 (emphasis in original).

Appellee contends that BDO Seidman was “wrongfully decided” because it conflicts with the Florida Supreme Court’s decision in Wait v. Florida Power & Light Co. We disagree.

The issue in Wait was whether the provisions in the predecessor to rule 9.310 granting public bodies an automatic stay upon filing a notice of appeal controlled over a statute providing that an order requiring an agency to open its records for inspection under the Public Records Act is not stayed by the agency’s filing of a notice of appeal. See id. at 422. In the decision under review by the supreme court in Wait, this court had held that the statute controlled because the rule was intended to protect the public treasury from money judgments and to allow the agency’s notice of appeal to operate as a stay in a Public Records Act case would “delay a person’s right to examine public records until through the sheer lapse of time, the need expired[, which] would defeat the purpose of the Public Records Act.” Wait v. Florida Power & Light Co., 353 So.2d 1265, 1267 (Fla. 1st DCA 1978). The supreme court quashed this court’s decision, and held that the rule controlled over the statute, stating that the “granting of a stay, because it is a step in the enforcement of a final judgment, is concerned with ‘the means and method to apply and enforce’ substantive rights and falls within the definition of procedural law.” Wait, 372 So.2d at 423.

Wait is not controlling here. Wait did not involve rule 9.310; it involved the predecessor to that rule, Florida Appellate Rule 5.12(1), and the opinion made a specific point of noting that “[t]he present decision is limited to the relationship between section 119.12(2) and the ‘Florida Appellate Rules, 1962 Revision.’” Id. at 423 n. 2. Rule 5.12(1) did not include the “except as provided by general law” clause contained in the current rule 9.310(a); nor was this language included in any of the other 1962 rules concerning stays pending appeal. See Fla. App. R. 5.1-5.12 (1962 rev.). The “except as provided by general law” language was added when rule 9.310 was created as part of the comprehensive 1977 revision of the appellate rules and, based on the commentary to the new rule approved by the Florida Supreme Court, it is clear that this language was specifically intended to “preserve[ ] any statutory right to a stay.” In re Proposed Florida Appellate Rules, 351 So.2d at 1010; see also St. Mary’s Hospital, 769 So.2d at 968-69 (recognizing that the trial court’s authority under rule 9.310(a) is subject to exceptions created by general law).

We recognize that in Department of Highway Safety and Motor Vehicles v. Begley, we stated that the “except as provided by general law” language in rule 9.310(a) was a reference to “the legislature’s power to designate when and where a motion to stay must be filed, not ... a reference to the authority and discretion of the court to grant a stay” and that it would be inconsistent with the reasoning in Wait to interpret the rule language “as a broad grant of authority [to the Legislature] to Override the entire rule.” Id. at 279. Begley has no impact on our disposition of this case.

First, the discussion of rule 9.310(a) in Begley was dicta because our decision upholding the statute at issue in that case (which prohibited the trial court from staying the suspension of a driver’s license during judicial review) was based on our agreement with the Third District that “the determination of whether a party may drive pending a decision related to the suspension of the driver’s license is a decision which may be made by the legislature.” Id.; see also id. (“Since mandatory suspension is not a criminal penalty, but instead a civil sanction unrelated to an appeal of the criminal conviction, the trial court does not have jurisdiction to enter a stay.”) (quoting Dept. of Highway Safety & Motor Vehicles v. DeGrossi, 680 So.2d 1093, 1095-96 (Fla. 3d DCA 1996)).

Second, Begley was issued prior to the Florida Supreme Court’s decision in St. Mary’s Hospital. The opinion in Begley was issued on May 8, 2000, and rehearing was denied on June 2, 2000; the opinion in St. Mary’s Hospital was not issued until June 29, 2000. Thus, the Begley court did not have the benefit of the supreme court’s recognition in St. Mary’s Hospital that the trial court’s authority under rule 9.310(a) is subject to exceptions created by general law.

Third, Begley is distinguishable because that case involved a statute (like the statute in Wait) prohibiting the trial court from granting a stay. By contrast, the statute at issue in this case (like the statute in BDO Seidman) simply limits the amount of the bond that is required to obtain a stay pending review. Thus, this case is more similar to BDO Seidman than it is to Begley.

In sum, we conclude that section 569.23(3) does not impermissibly intrude on the Florida Supreme Court’s rulemak-ing authority under article V, section 2(a) and, therefore, the statute does not violate the separation of powers mandate in article II, section 3.

Conclusion

For the reasons stated above, we hold that section 569.23(3) is constitutional and we affirm the trial court’s order denying Appellee’s motion to determine the sufficiency of the bond posted by RJR pursuant to the statute. We recognize that the issues framed by Appellee’s motion implicate significant public policy issues of statewide importance because there are thousands of Engle progeny cases pending around the state and there are an increasing number of multi-million dollar judgments in excess of the thresholds in section 569.23(3) being entered and appealed in those cases. Accordingly, because the issues in this case are likely to continue to arise around the state until the issues are definitively resolved by the Florida Supreme Court, we also certify the following question of great public importance to the supreme court:

DOES SECTION 569.23(3), FLORIDA STATUTES (2010), VIOLATE ARTICLE III, SECTION ll(a)(12) OR ARTICLE II, SECTION 3 OF THE FLORIDA CONSTITUTION BY LIMITING THE AMOUNT OF THE BOND NECESSARY TO OBTAIN AN AUTOMATIC STAY OF A JUDGMENT AGAINST A SIGNATORY TO THE TOBACCO SETTLEMENT AGREEMENT WITH THE STATE OF FLORIDA?

STAY ORDER AFFIRMED; QUESTION CERTIFIED.

LEWIS and ROBERTS, JJ., concur.

      . Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006).

      . R.J. Reynolds Tobacco Co. v. Clay, No. 1D10-5544 (Apr. 12, 2011) (affirming order denying motion to determine sufficiency of bond).

      . 998 So.2d 1 (Fla. 3d DCA 2008), rev. denied, 996 So.2d 211 (Fla.2008).

      . We have jurisdiction even though we affirmed the judgment in this case (see 2011 WL 1938199) and RJR filed a notice to invoke the discretionary jurisdiction of the Florida Supreme Court. See City of Miami v. Arostegui, 616 So.2d 1117, 1119 (Fla. 1st DCA 1993). The issue framed by the motion was not rendered moot by our decision affirming the judgment because the stay provided by section 569.23(3) extends “during the pendency of all appeals or discretionary appellate reviews of such judgment in Florida courts.” § 569.23(3)(a)1., Fla. Stat.

      . CS/HB 1721 became chapter 2000-128, Laws of Florida, which enacted section 768.733.

      . SB 2826 became chapter 2003-133, Laws of Florida, which enacted section 569.23.

      . CS/SB 2198 became chapter 2009-188, Laws of Florida, which included the amendments to section 569.23.

      . 434 So.2d 879 (Fla.1983).

      . Philip Morris, Inc. v. French, 897 So.2d 480, 487 (Fla. 3d DCA 2004), rev. denied, 918 So.2d 292 (Fla.2005).

      . "The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any powers appertaining to either of the other branches unless expressly provided herein."

      . 769 So.2d 961 (Fla.2000).

      . 372 So.2d 420 (Fla.1979).

      . 776 So.2d 278 (Fla. 1st DCA 2000).


author: LEWIS, J.

text:
    Elizabeth McDonald DEMONT, Wife, Appellant, v. Michael E. DEMONT, Husband, Appellee.
    No. 1D10-2065.
    District Court of Appeal of Florida, First District.
    July 12, 2011.

      Cynthia L. Greene, of Law Offices of Greene Smith & Associates, P.A., Miami, for Appellant.
    James G. Roberts, of Roberts & Reiter, P.A., Jacksonville; and Michael J. Korn, of Korn & Zehmer, P.A., Jacksonville, for Appellee.
   LEWIS, J.

Elizabeth McDonald Demont, the former wife, appeals, and Michael E. Demont, the former husband, cross-appeals certain rulings in the trial court’s amended final judgment dissolving their marriage. The wife asserts that the trial court erred as a matter of law and abused its discretion in awarding her bridge-the-gap alimony and nominal permanent alimony, and that the court abused its discretion in failing to account for the husband’s expenditure of certain funds during the pendency of the dissolution proceedings. The husband asserts error as a matter of law in the court’s de facto treatment of a future non-compete/non-solicitation payment of $165,000 from his former employer as a marital asset. We reverse the designation of the $165,000 final payment as a marital asset and remand for the trial court to adjust the equitable distribution plan accordingly. We affirm the amended final judgment in all other respects.

FACTS & BACKGROUND

The parties were married in November 1989 and separated in Spring 2008. The divorce proceedings commenced with the October 2007 filing of the petition for dissolution. The parties have three children, born in February 1991, December 1992, and May 1999. After the trial court issued the amended final judgment in July 2009, an appeal and cross-appeal culminated in our dismissal of the proceedings as premature because the circuit court had reserved jurisdiction over certain material matters. See Demont v. Demont, 24 So.3d 699 (Fla. 1st DCA 2009). Now that the trial court has issued a supplemental judgment ruling on the outstanding issues, all the issues raised by the parties are properly before us.

The parties’ employment and financial history and their marital standard of living are key to understanding the trial court’s challenged rulings on alimony and equitable distribution. The husband, born in May 1955, earned undergraduate and law degrees and worked in commercial litigation for several Jacksonville law firms after his 1982 graduation. In 1996, he accepted an executive management position (president) at Suddath Van Lines (Sud-dath), a national moving and storage company and a former legal client. Although the new position involved a significant pay cut initially, the husband subsequently received generous compensation, bonuses, and fringe benefits. In November 2008, however, Suddath eliminated the husband’s position, due partly to the economic downturn and partly to the high cost of his salary and expenses. In connection with his termination by Suddath, the husband was subject to an “Employment Resignation Agreement, Non-Compete, Waiver and Release” pursuant to which his company car, a 2005 Lexus 400, was transferred to him. The timing, nature, and amount of the various payouts arising from this agreement are pertinent to the issues on appeal and cross-appeal and will be discussed as appropriate.

Rather than accept another job in the moving and storage business of uncertain longevity that would have required the family to leave Jacksonville, the husband returned to a former employer, the Smith, Hulsey law firm, in December 2008 as a non-equity attorney in commercial litigation, earning $220,000 per year, or substantially less than he had earned at Sud-dath. The husband testified that at Smith, Hulsey, he was not guaranteed a bonus but could become eligible for additional income, depending on his own and his employer’s annual performances.

The wife, born in October 1961, earned a bachelor’s degree in business administration. After graduation, she worked as a credit card analyst and a records custodian at a bank and as a litigation paralegal at a law firm during the period from 1985 to the early 1990s. While the parties’ children were young, the wife worked occasionally as an uncertified substitute teacher and in a data entry position. By the parties’ mutual agreement, however, she forewent full-time, paid employment to devote her efforts to parenting, homemaking, and school volunteering activities. From 1998 forward, she was extensively involved in cultural and charitable community endeavors. She worked briefly as a mortgage loan officer and as an interior design assistant. The wife’s commitment to maintaining the home front and establishing the couple’s status in civic and social circles — during a period when the husband was working long hours, establishing his professional reputation, and traveling frequently — contributed to his career advancement.

In January 2008, or shortly before the parties’ separation, the wife requested temporary support and exclusive use and possession of the marital residence. The husband opposed the motion, based partly on the wife’s alleged overspending and partly on her financial need to return to full-time, paid employment. A consent order granted the wife and children exclusive use and possession of the marital home and granted the husband exclusive use and possession of his rented residence. After an evidentiary hearing, the trial court issued a July 22, 2008, order on temporary needs, intended to be of limited duration and premised on the expectation that the dissolution trial would commence in 90 days.

During the interim period before trial, the husband was ordered to continue paying the mortgage on the marital residence ($6,480 a month); the home utilities, cable television, and Internet bills; the wife’s BMW car payments; a child’s Tahoe vehicle payments; all automobile, life, and disability insurance premiums; the parties’ Bank of America credit line; and the country club monthly bills. These expenses totaled approximately $9,668 monthly. The husband was also directed to continue paying the family’s dental, health, and vision insurance through payroll deduction. Additionally, the court ordered the husband to pay in cash $1,000 each pay period, or $2,000 a month, directly to the wife for food, home operating expenses, gasoline, clothing, cell phones, and other essentials. While expressly acknowledging that these financial demands would leave the husband with only about $1,000 in regular monthly income for his own needs, the court found that he “receives the benefit of a significant bonus each year.” Although a series of delays postponed the dissolution trial until mid-May 2009, well after the anticipated expiration of the “temporary” support order, the parties remained bound by the terms of the order. After receiving extensive testimony and documentary evidence, the trial court entered the amended final judgment of dissolution of marriage.

In fashioning an equitable distribution under section 61.075, Florida Statutes (2009), the trial court set valuations and included as the primary marital assets the McGirts Boulevard marital residence ($1.4 million, subject to a $942,000 mortgage), Suddath stock appreciation rights (SAR) due ($707,076), a Suddath payout due in March 2010 ($165,000), a Suddath 401(k) account ($88,062), children’s accounts (approximately $25,000), and a 2005 BMW ($22,640, on which $20,000 is owed). Commencing August 2009, any monthly mortgage payments due on the marital residence were to be paid 50-50 by the parties, with additional contributions to be made by the parties for real estate taxes if the residence was not sold by December 31, 2009. The parties were to divide equally the installment payments received from Suddath and to bear equal responsibility for the remaining debt on the BMW. They were ordered to divide equally the Raymond James children’s account and one child’s 529 account, unless the parties agreed in writing to leave those accounts intact for the children’s benefit. The court acknowledged that once the marital residence is sold and the other assets are divided, the equitable distribution will provide a substantial amount of money to each party.

To calculate child support under section 61.30, Florida Statutes (2009), the court listed the parties’ gross monthly incomes as $18,333 ($10,468 net) for the husband and $4,050 ($3,900 net) for the wife. Given the parties’ combined net monthly income of $14,368 and their respective earning shares of 73% and 27%, the court found the minimum support for two children was $2,556, of which the husband would be responsible for paying $1,900. The court expressly declined to impute income to the wife, given the uncertainty as to if, and when, the wife will be able to secure gainful employment at the earnings level suggested by the vocational rehabilitation counselor. The wife and children are listed as beneficiaries on the husband’s $1,250,000 life insurance policy.

ISSUES

I. Alimony

In her pleadings, the wife requested temporary and permanent periodic alimony, citing myriad factors: the parties’ lavish marital lifestyle; their approximately 18-1/2-year marriage; their mutual agreement for the wife to forgo outside, paid employment and to devote herself full-time to homemaking, parenting, supporting the husband’s career-building goals, and establishing the couple’s position in civic and social endeavors; her significant financial needs; and the husband’s ability to pay. The trial court recognized the obvious: given the husband’s significantly reduced annual income after leaving Suddath, the parties’ having to maintain separate residences, and the onerous effect of the parties’ recurring and rising expenses for lifestyle items (including the elegant waterfront marital residence, private school tuition, upscale automobiles, and a nice fishing boat), the parties will no longer be able to maintain their extravagant marital lifestyle and patterns of overspending and borrowing. They will have to sell the marital residence, and the wife will have to obtain paid, full-time employment.

A vocational rehabilitation counselor, John Roberts, testified in a May 2009 deposition that he had met the wife in October 2008. He described her as an articulate, well-groomed, and professional individual with a solid education, a pleasing personality, and proven sales ability. Roberts stated that the wife’s 1988 earnings of $28,000 would approach $40,000 in 2009 terms if adjusted for inflation. He noted that while caring for the children, the wife had volunteered 30 hours a week at an art museum and had chaired a children’s hospital antiques show, sometimes working 50-60 hours a week coordinating committees and planning special events. Roberts testified that he had found about a dozen jobs in the Jacksonville market suitable for the wife’s experience and skills'. He opined that in the current economy, the wife’s highest earning capacity would be $40,000-$50,000 in the banking or sales fields. Roberts had performed a labor market survey listing specific employers with jobs available within that salary range. Roberts based his earnings assessments partly on the wife’s success for two months in 2008 selling subscription packages for the Jacksonville Symphony Orchestra to prior identified patrons who would receive a charitable or tax benefit. Admittedly, the earnings range was based on the wife’s perceived sales skills rather than on her actual income history.

The wife testified that she had prepared resumes, contacted prospective employers, and participated in job interviews, thus far to no avail. Finding the wife is a suitable candidate for permanent alimony, while recognizing the parties’ dire financial circumstances until the marital home is sold, the trial court devised a short-term plan. The court determined that the wife’s monthly needs were approximately $4,000, excluding the mortgage payment, property insurance, the children’s tuition, and certain miscellaneous expenses. Specifically considering the expensive unsold marital home and the wife’s inability so far to secure full-time, paid employment, the trial court awarded her bridge-the-gap alimony in the amount of $4,000 monthly, commencing July 1, 2009, and continuing for two years or until further order. The court also awarded her permanent alimony in the nominal amount of $50.00 a month and continuing until her remarriage, either party’s death, or a further court order. Although the temporary support order placed the entire burden of monthly mortgage payments on the husband, the amended final judgment ordered the wife to pay one-half ($3,150.00) of the mortgage payment. The court noted that if the marital residence sells and the wife obtains full-time, paid employment before the gap period ends, the court might need to consider (upon a proper petition) a modification of alimony and child support. The court declined to impute income to the wife because it was uncertain whether she would be able to obtain full-time employment at the pay level estimated by the vocational rehabilitation counselor. In the first issue on appeal, the wife complains that the trial court failed to apply the presumption in favor of permanent alimony after a long-term marriage, that the bridge-the-gap award is unwarranted and inappropriate for her financial circumstances, and that the award of only nominal permanent alimony is grossly inadequate.

Attempting to avoid the deferential “abuse of discretion” standard of review described in Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980), the wife contends that the trial court erred as a matter of law by failing to apply the correct legal rule in awarding bridge-the-gap alimony and only nominal permanent alimony. See Ondrejack v. Ondrejack, 839 So.2d 867, 870 (Fla. 4th DCA 2003). She premises her legal argument on two grounds: (1) that bridge-the-gap alimony “is a useful tool in a relatively small category of divorces” but is inappropriate, given the facts of this case, see Borchard v. Borchard, 730 So.2d 748, 753 (Fla. 2d DCA 1999); and (2) that nominal permanent alimony is improper, given the parties’ long-term marriage and the wife’s acute financial needs. See Hill v. Hooten, 776 So.2d 1004, 1007 & n. 3 (Fla. 5th DCA 2001) (characterizing a 17-year marriage as long-term); Cruz v. Cruz, 574 So.2d 1117, 1118 (Fla. 3d DCA 1990).

It is well-established in Canakaris and its progeny that “[a] trial court has considerable discretion in determining an award of alimony.” Engesser v. Engesser, 42 So.3d 249, 250 (Fla. 5th DCA 2010). As the party seeking alimony, the wife had the burden to prove her financial need and the husband’s ability to pay. See Esaw v. Esaw, 965 So.2d 1261, 1266-67 (Fla. 2d DCA 2007). We find nothing in the record to support the wife’s conclusion that the trial court misconstrued the burden, of proof. Although section 61.08(1), Florida Statutes (2009), does not expressly provide for bridge-the-gap alimony, subsection (2) sets out a non-exclusive list of “relevant economic factors” for determining a proper award of alimony and permits the trial court to “consider any other factor necessary to do equity and justice between the parties.” In Shea v. Shea, 572 So.2d 558, 559-60 (Fla. 1st DCA 1990), we recognized that in some circumstances, even if a spouse is employable, an alimony award effectively rehabilitating the spouse in making the transition from married life to single status can be justified as a “bridge-the-gap measure.” Accord Vanbrussel v. Vanbrussel, 710 So.2d 170, 172 (Fla. 1st DCA 1998); Iribar v. Iribar, 510 So.2d 1023, 1024 (Fla. 3d DCA 1987).

The trial court relied on evidence that the wife is capable of securing gainful, full-time employment even in a declining economy but, in the interim period before getting a job, will be wholly dependent on the husband’s financial support. In so doing, the court assessed the instant facts as justifying a bridge-the-gap award of $4,000 monthly for 24 months. The above-cited decisions contradict the wife’s conclusion that the present case lies beyond the narrow scope of cases where bridge-the-gap alimony is proper. The wife misplaces her reliance on cases such as Alcantara v. Alcantara, 15 So.3d 844 (Fla. 3d DCA 2009), in which the trial court abused its discretion by awarding only bridge-the-gap alimony, rather than permanent alimony, after a 19-year marriage. See also Wofford v. Wofford, 20 So.3d 470 (Fla. 4th DCA 2009) (finding an abuse of discretion in trial court’s awarding only bridge-the-gap alimony in the amount of $1,200 monthly for two years, rather than some amount of permanent alimony, after an 11-year marriage, where the husband’s net monthly income was $9,026 while the wife, who had worked sporadically during the marriage pursuant to the parties’ agreement that she would be a homemaker and care for the children, was seeking employment paying $10.00 hourly and was unemployed at the time of the final hearing). We cannot say that the trial court abused its discretion in fashioning this time-limited award to account for the parties’ uncertain, evolving financial circumstances.

The trial court correctly determined that the wife is entitled to permanent alimony as well. The husband does not dispute this finding. “Permanent periodic alimony is used to provide the needs and necessities of life to a former spouse as they have been established during the marriage,” and in deciding whether to award permanent periodic alimony, “the court must consider the needs of the spouse requesting the alimony and the ability of the other spouse to make alimony payments.” Zeigler v. Zeigler, 635 So.2d 50, 53 (Fla. 1st DCA 1994); Canakaris, 382 So.2d at 1201-02. The marital standard of living is a less useful guide for determining an alimony award in situations, like the present case, where the parties maintained a lavish marital lifestyle only by incurring considerable debts. See Jaffy v. Jaffy, 965 So.2d 825, 827-28 (Fla. 4th DCA 2007); Nichols v. Nichols, 907 So.2d 620, 623 (Fla. 4th DCA 2005).

Faced with the evidence that the parties had lived beyond their financial means, that they had not yet sold their most substantial asset (the $1 million-plus marital residence), that the wife had not yet obtained full-time employment, and that the husband was settling into a new job (paying substantially less than Suddath) while footing the entire bill for the parties’ expenses, the trial court understandably concluded that determining an appropriate amount of permanent alimony would be difficult for so long as the parties’ financial circumstances remain in flux. On this basis, the court awarded the wife only $50.00 monthly in permanent alimony.

The wife correctly notes that even when she secures full-time employment, she will not necessarily be self-supporting. See Wolff v. Wolff, 576 So.2d 852 (Fla. 1st DCA 1991). The trial court’s rulings on alimony do not suggest otherwise. The court was faced with a situation where the wife clearly needs permanent alimony and the husband is obligated to pay the lion’s share of the family’s sizeable debt. Devised under these circumstances, this nominal amount of permanent alimony serves two important and salutary purposes. First, as the judgment expressly recognized, this award will allow the wife to petition the trial court for a future increase in permanent periodic alimony if she proves a greater need, if and when the husband’s financial position improves. Second, it preserves the trial court’s jurisdiction to revisit this matter if the parties’ respective financial circumstances change substantially, as the record suggests will happen. See Gergen v. Gergen, 48 So.3d 148, 150-51 (Fla. 1st DCA 2010); Biskie v. Biskie, 37 So.3d 970, 973 (Fla. 1st DCA 2010); Schmidt v. Schmidt, 997 So.2d 451, 454 (Fla. 2d DCA 2008); Nourse v. Nourse, 948 So.2d 903, 904 (Fla. 2d DCA 2007). Because the wife has shown no abuse of discretion, we affirm the alimony awards while recognizing the trial court’s clear willingness to review this issue in the event of changed financial circumstances.

II. Allegations of the Husband’s Dissipation of Marital Funds

In the second issue on appeal, the wife contends that the trial court erred by failing to account for the husband’s alleged excessive personal expenditures of marital funds while the dissolution proceedings were pending. The parties agree that we review this issue for an abuse of discretion. See Rabbath v. Farid, 4 So.3d 778, 781 (Fla. 1st DCA 2009) (revised opinion) (finding no abuse of discretion in trial court’s finding dissipation of marital assets). It is well-established that “[a] spouse may not deplete marital assets prior to a dissolution hearing unless he or she can show the withdrawals were minimally necessary to meet reasonable living expenses.” Steedman v. Chenoweth, 27 So.3d 78, 80 (Fla. 1st DCA 2009). The wife correctly notes that in the amended final judgment, the trial court found that thousands of dollars were spent on non-essential family items such as the children’s lavish gifts for special occasions and their extracurricular activities, entertainment, and allowances. The husband also paid substantial amounts toward restaurant and country club bills, professional clothing expenses, the collecting of fine wines, and weekends at Ponte Vedra Beach and Fernandina Beach. The court observed, however, that to the extent the husband’s largesse benefitted the children, the wife knew of these expenditures and neither objected to his generosity nor acted so as to effect any significant reductions in the extravagant lifestyle the parties enjoyed during the marriage. In fact, the wife’s financial affidavit listed over $21,000 in monthly expenses.

The husband produced detailed credit card and bank account records that support the wife’s assertion that he spent a significant amount of marital funds. At the dissolution trial, the wife contended that the husband misspent and dissipated a large portion of these monies for his own personal enjoyment. The husband’s testimony explained, however, that he incurred many of these personal expenses as a result of (1) having to upgrade his wardrobe for the transition from more casual working clothes at Suddath to the more professional, higher-quality attire appropriate for a large law firm practice; (2) entertaining actual and potential clients (for which his employer reimbursed him); (3) taking the parties’ children to restaurants on weekends and during other visitation periods; (4) entertaining the family and friends at the country club; and (5) enjoying an occasional weekend vacation. The husband shouldered a heavy financial burden under the terms of the standing “temporary” support order. Most of the husband’s expenditures questioned by the wife paid for the usual and customary household and other family expenses, as established by the parties themselves during the marriage. Because competent, substantial evidence supports the conclusion that the husband did not dissipate marital funds during the pendency of the dissolution proceedings, we find no abuse of discretion in the court’s conclusions. See Pubillones v. Lyons, 943 So.2d 881, 882 (Fla. 3d DCA 2006) (on mot. for reh’g).

III. Final Installment of Suddath Non-Compete Payment

In the cross-appeal, the husband asserts error as a matter of law in the trial court’s effectively treating the $165,000 gross final installment of the non-compete payments from Suddath — not due until March 2010 — as a marital asset subject to equitable distribution under section 61.075(1), Florida Statutes (2009). The husband also challenges the court’s conclusion that he failed to explain where certain payouts received from Suddath went. “Marital assets” are “[a]ssets acquired ... during the marriage, individually by either spouse or jointly 'by them.” § 61.075(6)(a)1.a., Fla. Stat. (2009); Heinrich v. Heinrich, 609 So.2d 94, 95-96 (Fla. 3d DCA 1992). The initial determination as to whether an asset is marital or non-marital is a fact-finding process. See O’Leesky v. Liggett, 544 So.2d 268, 269 n. 1 (Fla. 2d DCA 1989); Macaluso v. Macaluso, 523 So.2d 615, 617 (Fla. 2d DCA 1988). The ultimate conclusion that an asset is marital and therefore subject to equitable distribution is a question of law, subject to de novo review. See Farrior v. Farrior, 736 So.2d 1177, 1179 (Fla.1999); Finney v. Finney, 995 So.2d 579, 580 (Fla. 1st DCA 2008); Smith v. Smith, 971 So.2d 191, 194 (Fla. 1st DCA 2007).

In the process of terminating the husband’s lucrative position at Suddath in November 2008, the employer and he entered a comprehensive waiver and release agreement that provided for Suddath to make generous installment payments to him for several different purposes. Under an informal deferred compensation agreement, the husband was entitled to receive SAR payments, as well as general severance payments. The SARs were originally intended to be part of the husband’s retirement benefit, but if his employment with Suddath ended, he was contractually obligated to sell them back to the company at an established value. His stock in the holding company had a book value (as of December 31, 2007) of more than $800,000. One of the SAR payments received during the marriage was in the amount of $176,000 ($112,000 net). The husband negotiated to receive certain other payments in exchange for his agreement neither to seek future employment in competition with Suddath nor to solicit Suddath’s customers or employees: $100,000 ($63,000 net) received in November 2008, $185,000 ($110,000 net) received in March 2009, and a final payment of $165,000, due to be received in March 2010. To show how these installment payments coincide with the dissolution proceedings, we note that in October 2007, the husband petitioned to dissolve the parties’ marriage. The trial court issued a final judgment dissolving the marriage in July 2009.

The husband concedes that the SAR and severance payments he received from Sud-dath, as well as the March-April 2008 payments received relating to his 2007 bonus, are marital assets. He contends, however, that unlike the SAR and severance payouts, which were based on his past labor and services to the employer during the marriage, the payments he received for agreeing not to compete with Suddath or solicit its employees were compensation based entirely on his promises regarding future, post-employment (and post-petition) conduct. The $165,000 non-compete installment was not due to be paid to the husband until March 2010, well after the trial court dissolved the marriage.

In its amended final judgment, the trial court determined that the vast majority of the money the husband received from Sud-dath in the form of SAR, general severance, and non-compete/non-solicit payouts was used to pay property taxes, to pay down other family debts, to pre-pay certain ongoing family expenses such as the pleasure boat payments and the children’s private school tuition, and to provide lavish gifts, entertainment, and restaurant visits for the children, all with the wife’s tacit approval. The husband testified that he had received two installments for his Sud-dath bonus, based on the company’s 2007 performance. The first bonus check, in March 2008, was for $127,000 gross, but after the employer deducted amounts for taxes, Social Security, Medicare, and $25,000 for an advance it had made to the husband, the net amount was approximately $65,000. At the “temporary” support hearing, the husband testified that these bonus funds were spent on family or household bills, including property taxes on the marital home, back-taxes, a child’s orthodontal fees, and private school tuition, as well as a six-month pre-payment of the rent for the residence the husband occupied after leaving the marital home, in exchange for which his landlord agreed to reduce the. overall rent amount and to carry a note for the balance due. Suddath paid the second bonus in April 2008, $59,535.00, but after certain deductions, the net figure was $43,787.00. This money was used to pay for the children’s tuition, marital home repairs and maintenance, and a buy-out of the lease on the wife’s BMW automobile.

The trial court characterized as “unexplained” the husband’s use of the bonus received in March-April 2008 (for his 2007 labors) as well as the alleged $63,000 net first non-compete payment received in December 2008. The court adjusted the equitable distribution, in effect “replacing” the initial $112,000 SAR net payment with the $165,000 gross final non-compete/non-solicitation payment. The husband correctly notes that he presented detailed, generally unrebutted evidence (at the temporary needs hearing and at the dissolution trial) regarding the parties’ bank accounts, his deposits of the various payouts from Suddath, credit card debts, canceled checks, and his expenditures for his own and the family’s needs. The husband testified that he deposited the net amount of the first non-compete/non-solicit installment payment into the parties’ joint operating bank account, and then applied most of it to paying off family and household bills.

Although an appellate panel should not disturb the fact-finder’s determinations regarding witness credibility and the weight of any conflicting evidence, see Ludlum v. Rothman, 503 So.2d 974, 975 (Fla. 4th DCA 1987), we are unable to discern any factual basis for the trial court’s conclusion that the husband’s use of these monies was unexplained. Even though the trial court clearly was authorized not to believe the husband’s testimony regarding how he had used marital funds, we find no record support for the trial court’s conclusion that the destination of the net $63,000.00 was unexplained. To the extent that competent, substantial evidence supports the trial court’s factual findings that the husband “volitionally” and “unilaterally” pre-paid certain significant, ongoing family financial obligations and provided generous gifts and entertainment to the children without the wife’s objection, we see no legal reason why the parties together should not bear the financial consequences of their mutually agreed spending patterns and depletion of marital funds to pay off family expenses.

This compels reversal of the trial court’s decision effectively finding that the contracted March 2010 gross installment payment under the non-compete/non-solicit agreement is a marital asset to be considered in the equitable distribution scheme. The trial court found that the husband received approximately $176,000 ($112,000 net) as the first SAR installment payment, which he deposited into a bank account and spent unilaterally, albeit without any serious objection by the wife. After expressly addressing the expected $165,000 non-compete/non-solicitation installment, the trial court found “that the voluntary severance payments could also be considered as marital assets in the form of retirement.”

Challenging this finding, the husband correctly notes, first, that Suddath’s termination of his position was not voluntary on his part. The employer, suffering financially from the economic downturn and wanting to reduce the substantial expenses associated with the husband’s salary, bonuses, and fringe benefits, let him go. Second, the non-compete/non-solicit payouts, which were promised in exchange for the husband’s agreement to forbear from certain future conduct, are substantively different from typical severance payments, which are

like other benefits afforded to employees as part of a welfare or social security type scheme that are not given as payment for services rendered by an employee. Instead, they are considered employment ‘entitlements’ which are given because of a perceived social or moral obligation to financially assist an employee when he or she is unable to work because of ... layoffs.

Bradshaw v. Pantry Pride Ent., Inc., 566 So.2d 1306, 1808 (Fla. 3d DCA 1990). Third, in no reasonable way can the non-compete/non-solicit payments be described as “like retirement.” The husband correctly argues that payment to an employee to honor a covenant not to compete is not a retirement fund based on past labor and services. This agreement pre-supposed that the husband would not engage in post-termination competitive practices against the employer. The non-compete/non-solicit agreement did not compensate the husband for past work performed for Suddath during the marriage, which might constitute marital labor and thus be deemed a “marital asset” subject to equitable distribution. The final non-compete/non-solicitation payment — which the husband was not to receive until March 2010, or long after the petition for dissolution was filed and the marriage was dissolved — is not comparable to deferred income or a stock option where a spouse’s rights vested during the marriage. Accordingly, the $165,000 payment should not have been treated as a marital asset subject to equitable distribution.

For the foregoing reasons, we REVERSE that portion of the amended final judgment effectively treating the $165,000 final non-compete/non-solicit payment from Suddath as a marital asset subject to equitable distribution and REMAND for the trial court to adjust the equitable distribution accordingly. We AFFIRM the judgment in all other respects, including the awards of bridge-the-gap alimony and nominal permanent alimony.

VAN NORTWICK and CLARK, JJ., concur.


author: PER CURIAM.

text:
    Jerry PARLAVECCHIO, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5370.
    District Court of Appeal of Florida, Fourth District.
    July 13, 2011.
    Rehearing Denied Sept. 14, 2011.
    Pedro E. Dijols of Pedro E. Dijols, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Jerry Parlavecchio appeals from the summary denial of his motion for postcon-viction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the trial court’s order on all issues except the denial of the claims within Points One and Two concerning Parlavecchio’s rejection of a favorable plea offer. See generally, Haynes v. State, 24 So.3d 726 (Fla. 4th DCA 2009). We reverse and remand for the trial court to conduct an evidentiary hearing to address solely those claims.

Affirmed in part, Reversed in part and Remanded.

POLEN, TAYLOR and HAZOURI, JJ, concur.