text:
    AZCO REALTY, INC., Appellant, v. The VILLAGE AT GULFSTREAM PARK, etc., et al., Appellees.
    Nos. 3D14-0984, 3D14-0005.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2014.
    Rehearing Denied Jan. 9, 2015.
    Katz, Barron, Squitero, Faust, Fried-berg, English & Allen and Jon W. Zeder, for appellant.
    Wicker, Smith, O’Hara, McCoy & Ford and Shelley H. Leinicke and Jonathon S. Miller (Ft. Lauderdale), for appellees, The Village of Gulfstream Park, LLC and Forest City Commercial Group, Inc.; Egozi & Bennett and Bernard L. Egozi and Issac S. Lew (Aventura), for appellees, Burn World-Wide, Inc. d/b/a BGT Partners and David Clarke.
    Before SHEPHERD, C.J., and EMAS and SCALES, JJ.
   PER CURIAM.

Affirmed. See Geneva Inv., Ltd. v. Trafalgar Developers, Ltd., 274 So.2d 581 (Fla. 3d DCA 1973); Bradley v. Banks, 260 So.2d 256, 256 (Fla. 3d DCA 1972) (“The appellee was entitled to summary judgment on plaintiffs’ claim for a portion of a real estate commission because there was no genuine issue of material fact concerning the proposition that [plaintiff-appellant] was not registered as a real estate broker or salesman at the time the act or service was performed.”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jon A. EARLEY, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D14-1261.
    District Court of Appeal of Florida, First District.
    Nov. 20, 2014.
    Jon A. Earley, pro se, Petitioner.
    Sarah J. Rumph, General Counsel, Florida Commission on Offender Review, Tallahassee, for Respondent.
   PER CURIAM.

Jon A. Earley seeks certiorari review of the denial of his petition for writ of mandamus, in which he challenged the Florida Commission on Offender Review’s establishment of his presumptive parole release date. Among his several arguments, we find merit to one of Earley’s claims and on that basis grant his petition.

Having entered a plea of guilty to a charge of first-degree murder, Earley is serving a sentence of life imprisonment without possibility of parole for 25 years. Prior to the murder offense, Earley had pled guilty in Oklahoma to a charge of robbery with a firearm and was placed on a term of probation. Earley argues that in establishing his PPRD, the Commission deviated from its own rules when it failed to score the Oklahoma conviction under the salient factor relating to “number of prior criminal convictions,” and instead utilized the conviction as an aggravating factor and assessed an additional 120 months in aggravation beyond his matrix time as determined by the objective parole guidelines.

In pertinent part, section 947.165(1), Florida Statutes (2014), provides as follows:

The commission [on offender review] shall develop and implement objective parole guidelines which shall be the criteria upon which parole decisions are made. The objective parole guidelines shall be developed according to an acceptable research method and shall be based on the seriousness of offense and the likelihood of favorable parole outcome. The guidelines shall require the
Recidivist Criminal Factor as defined Three or more prior convictions One or Two prior convictions No prior convictions
The Commission contends, however, that the “simple, plain-language structure” of the rule yields the conclusion “that if the Commission is going to assess a score, then that score for salient factor 1 must be based on the prior record; it does not state that the salient factor scoring system is the only way for the Commission to consider the inmate’s prior record.” The Commission identifies no language of the rule that supports this interpretation, nor is any apparent from our review. Instead, the plain language of the rule states that the salient factor in question “shall be calculated on the inmate’s prior record.” (emphasis added). Moreover, under the Commission’s view that it may score or not score salient factor points as it sees fit rather than based on the application of its rule to the inmate’s prior record, the pa-commission to aggravate or aggregate each consecutive sentence in establishing the presumptive parole release date. Factors used in arriving at the salient factor score and the severity of offense behavior category shall not be applied as aggravating circumstances.

Implementing the legislature’s charge to establish objective parole guidelines, the Commission adopted Florida Administrative Code Rule 23-21.007, addressing salient factor scoring. As it pertains to scoring of the salient factor relating to the number of prior criminal convictions, that rule provides as follows:

Salient factors (1) through (5) shall be calculated on the inmate’s criminal record.
(1) NUMBER OF PRIOR CRIMINAL CONVICTIONS:
= RCF
= 2 Points
= 1 Point
= 0 Points

role guidelines are no longer objective, as section 947.165 requires that they be.

The Commission correctly points out that a court reviewing its establishment of a PPRD may set it aside “only for a demonstrated abuse in the exercise of the Commission’s discretion.” Fla. Parole Comm’n v. Huckelbury, 903 So.2d 977, 978 (Fla. 1st DCA 2005). However, a deviation by the Commission from the legal requirements imposed upon it amounts to an abuse of its discretion. Id.; see also Fla. Parole Comm’n v. Brown, 989 So.2d 723 (Fla. 1st DCA 2008); Williams v. Fla. Parole Comm’n, 625 So.2d 926 (Fla. 1st DCA 1993), receded from on other grounds, Sheley v. Fla. Parole Comm’n, 703 So.2d 1202 (Fla. 1st DCA 1997). We conclude that such a deviation occurred here. Under the legal requirements imposed upon the Commission, petitioner’s Oklahoma conviction should have been accounted for in his salient factor score. That being the case, it was error for the Commission to assess an additional 120 months in aggravation based on that conviction, since section 947.165(1) precludes factors used in arriving at the salient factor score from being applied as aggravating circumstances. The circuit court departed from the essential requirements of law in concluding otherwise, resulting in a manifest injustice.

Accordingly, the order denying Earley’s petition for writ of mandamus is QUASHED and this cause is REMANDED to the lower tribunal for further proceedings.

PADOVANO, WETHERELL, and SWANSON, JJ., concur.

      . The specific manifest injustice suffered by Earley is apparent. Had the Commission scored the conviction as part of the salient factor, thereby precluding its use as an aggravating circumstance, it would have increased petitioner's total score from 3 points to 4. However, this would not have increased petitioner’s matrix time range, which for a capital felony is 180-240 months for any score between 2 and 4 points. See Fla. Admin. Code R. 23-21.009. The Commission had already set Earley's matrix time at 240 months, the top of the range.


author: RAY, J.

text:
    Talbert John WOOD, Appellant, v. Margaret BLUNCK, Appellee.
    No. 1D14-51.
    District Court of Appeal of Florida, First District.
    Nov. 24, 2014.

      Brian P. North of Kenny Leigh & Associates, Mary Esther, and Stefani K. Nolan, and Shachar D. Spiegel of Kenny Leigh & Associates, Jacksonville, for Appellant.
    Clyde M. Taylor III of Taylor, & Taylor, P.A., St. Augustine, and L.J. Arnold IV of Arnold Law, Green Cove Springs, for Ap-pellee.
   RAY, J.

Talbert John Wood, the former husband, appeals an order denying his petition to modify an alimony award in favor of Margaret Blunck, the former wife. The former husband argues that the denial is an abuse of discretion because the evidence showed that the former wife no longer needs alimony in the amount previously awarded. He also argues that the order was entered in violation of Perlow v. Berg-Perlow, 875 So.2d 383 (Fla.2004). Although some aspects of the order and the proceedings below raise the specter of a Perlow error, we need not decide this issue, because the order must be reversed on the other ground: the court’s findings do not indicate a proper exercise of discretion under the principles governing requests to modify alimony.

The original alimony award was $1,700 per month. In the order ruling on the petition for modification, the trial court found that the former wife’s gross monthly income had increased by approximately $1,060, or sixty-three percent, since the final judgment, after several incremental increases. Still, the former wife’s current expenses exceed her pre-alimony income by $644.81 per month. Consequently, the court found that the former wife continues “to have the need for spousal support in at least” that amount. The court continued the original award of $1,700 per month, explaining that the former wife’s current living expenses are “extremely modest” and “well below the standard of living established by the parties during the marriage, which the Court has previously found to be reasonable.”

To justify a modification of alimony, the party seeking modification must establish (1) a substantial change of circumstances; (2) that the change was not contemplated at the time of the final judgment of dissolution; and (3) that the change is sufficient, material, permanent, and involuntary. Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992). The substantial change of circumstances necessary to modify an alimony award must bear on either the payee spouse’s need for alimony or the payor spouse’s ability to pay it. See Galligher v. Galligher, 527 So.2d 858, 860 (Fla. 1st DCA 1988); § 61.14(1), Fla. Stat. (2009). For example, when the payee spouse’s need decreases significantly, alimony should ordinarily be modified downward even if the payor spouse has ample ability to pay the original amount. See Antepenko v. Antepenko, 824 So.2d 214, 215 (Fla. 2d DCA 2002). However, “[t]he fact that the income of the spouse receiving alimony has increased will not necessarily justify modification of the award.” Galligher, 527 So.2d at 860. A variety of factors must be considered. See id. The court’s ultimate decision is reviewed under the abuse of discretion standard. Leonard v. Leonard, 971 So.2d 268, 266 (Fla. 1st DCA 2008).

Although courts have discretion in determining the amount of alimony to award, the comparison of a party’s expenses and income with the amount of alimony is an important consideration. See Rosecan v. Springer, 845 So.2d 927, 929 (Fla. 4th DCA 2003) (reversing an award of alimony where “the numbers and findings [did] not add up to” the amount the court awarded in permanent periodic alimony). Here, the improvement in the former wife’s financial position appears to be a substantial change of circumstances. See Antepenko, 824 So.2d at 215 (holding that even a thirty-eight percent decrease in need is a substantial change in circumstances warranting modification). The former wife’s pre-alimony income has increased by sixty-three percent. The record does not indicate what her expenses were at the time of the final judgment. It does, however, indicate that the $1,700 award exceeds the former wife’s current pre-alimony deficit by over $1,000. Although the court explained that the amount of the former wife’s current spending reflects a lifestyle below the standard established during the marriage, the court did not make findings to indicate what amount of spending would be commensurate with that lifestyle or what factors, if any, offset the substantial increase in the former wife’s earnings.

While the former wife’s financial situation has improved, the same has not been said for the former husband. Indeed, he attempted (unsuccessfully) to prove that it had permanently worsened. Assuming the former husband’s ability to pay remains the same and considering the figures in the final judgment, we conclude that the finding of no substantial change of circumstances is inconsistent with the findings concerning the former wife’s income and expenses. Cf. Rosecan, 845 So.2d at 929 (“Absent special circumstances ..., an alimony award should not exceed a spouse’s need.”).

In so ruling, we do not pass on whether modification is necessarily required at this time. We simply conclude that the order is insufficient to support the result reached without further explanation. Consequently, we reverse and remand for reconsideration.

REVERSED and REMANDED.

ROBERTS and SWANSON, JJ., concur.

      . Although evidence concerning repairs needed to the former wife’s home and debt she owes her family might be weighed to support a finding that the former wife’s circumstances have not substantially changed, we cannot affirm on this basis because it is not clear that the trial court grounded its decision on that evidence. Affirming on this basis would require us to weigh the evidence and usurp the role of the fact finder. Cf. Featured Properties, LLC v. BLKY, LLC, 65 So.3d 135, 137 (Fla. 1st DCA 2011) ("We 'cannot employ the tipsy coachman rule where a lower court has not made factual findings on an issue and it would be inappropriate for an appellate court to do so.' ” (quoting Bueno v. Workman, 20 So.3d 993, 998 (Fla. 4th DCA 2009))).


text:
    Raul GIBSON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-1397.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2014.
    Raul Gibson, Blountstown, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, arid Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Raul Gibson petitions this court for a writ of habeas corpus alleging a manifest injustice in the denial, without citation, of his petition alleging ineffective assistance of appellate counsel. The earlier of the two petitions argued that counsel was deficient in not challenging a Montgomery jury instruction on direct appeal of his attempted second degree murder conviction. Although our decision in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010), required denial of the petition, if this court had provided a citation, Gibson could have obtained relief from the Florida Supreme Court. We therefore grant the petition. See Coleman v. State, 128 So.3d 193, 194 (Fla. 5th DCA 2013) (granting a successive ineffective appellate counsel petition where a prior petition arguing a Montgomery claim was denied without explanation).

Gibson was charged with attempted first degree murder, shooting at or into an occupied vehicle, and retaliating against a witness, victim, or informant. The jury instructions on the lesser offense of attempted voluntary manslaughter required an intent to kill, the same defect identified in Montgomery. He was found guilty of attempted second degree murder which was only one step removed from the erroneous attempted manslaughter instruction.

Gibson’s earlier petition claimed that appellate counsel was ineffective in failing to file a supplemental brief in the direct appeal raising the First District’s decision in Montgomery. At the time, this court had held that the fundamental error identified in Montgomery did not extend to the attempted voluntary manslaughter instruction. Williams, 40 So.3d at 72. The Florida Supreme Court ultimately quashed our decision. Williams v. State, 123 So.3d 23, 25 (Fla.2013).

Had this court provided a citation to Williams in our denial of Gibson’s first petition, Gibson could have obtained relief from the Florida Supreme Court. See, e.g., Wimberly v. State, — So.3d —, 2014 WL 4328067, 39 Fla. L. Weekly D1884 (Fla. 4th DCA Sept. 3, 2014) (granting relief on remand from the Florida Supreme Court where this court denied the ineffective assistance of appellate counsel petition with citation to our decision in Williams); Walden v. State, — So.3d —, 2014 WL 4840751, 39 Fla. L. Weekly D2069 (Fla. 4th DCA Oct. 1, 2014) (same).

Because it would result in a manifest injustice to deny Gibson the same relief, we grant the petition and remand for a new trial.

Petition granted.

GROSS, TAYLOR and CIKLIN, JJ., concur.

      . See Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009) (holding that the standard jury instructions for the lesser offense of manslaughter by act improperly imposed an intent to kill element and was fundamentally erroneous where defendant was convicted of an offense only one step removed), approved, 39 So.3d 252 (Fla.2010).

      . We have granted a new trial in a number of direct appeal cases that were initially affirmed based on our decision in Williams. Rodriguez v. State, 139 So.3d 489 (Fla. 4th DCA 2014); Fenster v. State, 141 So.3d 232 (Fla. 4th DCA 2014); Lopez v. State, 138 So.3d 488 (Fla. 4th DCA 2014); Davis v. State, 138 So.3d 489 (Fla. 4th DCA 2014); Sessions v. State, 137 So.3d 1167 (Fla. 4th DCA 2014); Coriolan v. State, 137 So.3d 1080 (Fla. 4th DCA 2014); Cunningham v. State, -So.3d-, 2014 WL 714714, 39 Fla. L. Weekly D451 (Fla. 4th DCA Feb. 26, 2014); Cox v. State, 132 So.3d 956 (Fla. 4th DCA 2014); Morgan v. State, 132 So.3d 930 (Fla. 4th DCA 2014).


author: CIKLIN, J.

text:
    R.M.O., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-3944.
    District Court of Appeal of Florida, Fourth District.
    Nov. 26, 2014.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melvin G. Mosier, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

We affirm the trial court’s order finding R.M.O. guilty as charged in the delinquency petition and withholding adjudication. Our review of the record reveals that any evidentiary errors committed by the lower court during the bench trial of R.M.O. were harmless.

Nonetheless, we write to remind all concerned of the special attention required of trial courts when making evidentiary rulings during non-jury trials.

We quote extensively from the Florida Supreme Court’s instructive decision in Petion v. State, 48 So.3d 726 (Fla. 2010):

Ordinarily, where a- trial judge, sitting, as here, as the fact-finder, erroneously admits evidence, he is 'presumed to have ' disregarded the improperly admitted evidence, and the error of its admission is deemed harmless. Wythers v. State, 348 So.2d 390 (Fla. 3d DCA 1977); Capitoli v. State, 175 So.2d 210 (Fla. 2d DCA 1965). Where, however, the record discloses that the trial judge relied upon the erroneous evidence, this presumption is overcome.
[State v.] Arroyo, 422 So.2d 50, 51 [ (Fla. 3d DCA 1982) ] (emphasis supplied) (federal citations omitted). After articulating this standard of review, the Third District determined that the presumption was rebutted because it was “abundantly clear” that the inadmissible evidence “played a significant part in the trial judge’s ruling” on the motion to suppress. Id. Considering the trial court’s comments during the suppression hearing and the express statements in the written order granting the motion to suppress, the district court concluded that these comments indicated that while the results of the inadmissible experiment may not have been the “sine qua non of his decision,” the trial court’s “reliance on the experiment to impeach the officers’ testimony [was] inseparable from his various conclusions” in support of granting the motion to suppress. Id. at 52[.] ...
However, we note that Arroyo frames the presumption in overly broad terms. The appellate court should not presume that the trial court disregarded all improperly admitted evidence where the record reflects that the evidence was admitted over objection. Hence, another method of rebutting the presumption is through a trial court’s express admission of the evidence over objection. In making the determination that the evidence is admissible, we would expect a trial court judge to believe that the evidence was properly before the trier of fact for consideration. It would be nonsensical to hold otherwise and insulting to the training and experience of the trial judge to presume that the evidence was disregarded when the court made a conscientious ruling that the evidence was admissible. In that circumstance, the trial court must make an express statement on the record that the erroneously admitted evidence did not contribute to the final determination. Otherwise, the appellate court cannot presume that the trial court disregarded evidence which was specifically admitted as proper.

Id. at 734-35 (emphasis in original).

Quoting Parks v. Zitnik, 453 So.2d 434, 437 (Fla. 2d DCA 1984), the Supreme Court held, however, that appellate courts still must conduct a harmless error analysis when reviewing a matter such as this:

Where the proof of guilt is so convincing that a person would clearly have been found guilty even without collateral evidence introduced in violation of the evidence code, the violation of the code may be considered harmless.

Petion, 48 So.3d at 735. As we have noted, this is the case in the instant matter.

Affirmed.

DAMOORGIAN, C.J., and FORST, J., concur.


author: FERNANDEZ, J.

text:
    Robert John Albert Van EXTER, Appellant, v. Nicole DIODONET-MOLINA, Appellee.
    No. 3D13-85.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2014.

      Hinshaw & Culbertson, LLP, and James H. Wyman, Tallahassee, for appellant.
    Nicole Diodonet-Molina, in proper person.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   FERNANDEZ, J.

Robert John Albert Van Exter, the father , appeals the trial court’s Final Judgment of Paternity, Custody, and Child Support, contending that the trial court erred when it calculated the monthly child support amount, child support arrearages, attorney’s fees, and the father’s ability to make these payments. We conclude that the trial court abused its discretion in entering the Final Judgment because it failed to make sufficient findings with respect to the father’s income.

The father and mother met in February 2010 when they were employees in a Miami hotel. Their relationship ended sometime around September 2010, before their child was born in May of 2011. On October 12, 2010, the mother filed a Petition to Determine Paternity, Custody and Child Support in the Eleventh Judicial.Circuit of Miami-Dade County. After a failed mediation attempt, the trial court set the case for trial on July 25, 2012. The trial court entered the Final Judgment on September 18, 2012, granting the mother sole custody and parental responsibility, monthly child support payments, arrearages and attorney’s fees. This appeal followed.

The father argues that the trial court failed to determine the father’s net income and include findings in the Final Judgment pursuant to section 61.30, Florida Statutes (2012). He further contends that, because the trial court failed to make such findings, the award of child support and arrearages is erroneous.

We agree that the trial court erred when it failed to make sufficient findings in the Final Judgment to clearly establish the father’s income and allowable deductions. Our decision rests on the well-established rule that “[c]hild support awards must be based on competent, substantial evidence of a party’s net income.” Hoffman v. Hoffman, 98 So.3d 196, 197 (Fla. 2d DCA 2012) (citing Vanzant v. Vanzant, 82 So.3d 991, 993 (Fla. 1st DCA 2011)); Hindle v. Fuith, 33 So.3d 782, 786 (Fla. 5th DCA 2010); Armour v. McMiller, 15 So.3d 923, 925 (Fla. 5th DCA 2009); Shrove v. Shrove, 724 So.2d 679, 682 (Fla. 4th DCA 1999).

The trial court must determine the net income of each parent pursuant to section 61.30, Florida Statutes, and include the findings in the final judgment. Armour, 15 So.3d at 925; see also Deoca v. Deoca, 837 So.2d 1137, 1138 (Fla. 5th DCA 2003) (holding that the trial court has the burden to determine the child support amounts based on the evidence presented). If the trial court fails to make adequate findings, we are required to remand for determination of child support. Armour, 15 So.3d at 925; see also Aguirre v. Aguirre, 985 So.2d 1203, 1207 (Fla. 4th DCA 2008) (reversing a judgment awarding child support because it did not include “explicit factual findings concerning the actual incomes attributable to the parties, the amount and source of any imputed income, the probable and potential earnings level, and the adjustments to income.’’); Crouch v. Crouch, 898 So.2d 177 (Fla. 5th DCA 2005); Sumlar v. Sumlar, 827 So.2d 1079, 1083 (Fla. 1st DCA 2002) (reversing and directing the trial court to “disclose[ ] the specific numbers that were used to calculate the amount of child support due and the parties’ respective shares ... [in order to conduct a] ... meaningful review of its ruling on any child support amount.”); Penalver v. Columbo, 810 So.2d 563, 565 (Fla. 2d DCA 2002) (reversing child support judgment and remanding to consider the proper amount of deductions).

Here, the Final Judgment is devoid of any findings regarding the income of the father and mother. In its judgment, the trial court concluded that the father, based on the Child Support Guidelines, must pay a monthly amount of $711.96. However, the trial court fails to explicitly state how it calculated that amount. The trial court, does not include- any findings of the father’s gross income or applicable deductions. The trial court also failed to include any explicit findings as to the mother’s income.

Likewise, the trial court erred when it failed to include in the Final Judgment sufficient findings to establish child support arrearages. The trial court ordered the father to pay $8,507.44 in child support arrearages, in payments consisting of $100 per month for the first year, and $150 for every year thereafter until the $8,507.44 was satisfied. The trial court failed to provide, in the final judgment, any explicit findings to support its award of child support or arrearages and did not include findings establishing the father’s ability to make payment. The lack of findings in the final judgment was an abuse of discretion.

The father also claims that the trial court erred when it failed to clearly establish the amount of attorney’s fees, including reasonable fees for services performed, and the father’s ability to pay attorney’s fees. When determining an award of attorney’s fees, “[t]he primary factor a judge considers is the financial resources of the parties.” Ratigan v. Stone, 947 So.2d 607, 608 (Fla. 3d DCA 2007) (citing Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997)); see also Derrevere v. Derrevere, 899 So.2d 1152, 1153 (Fla. 4th DCA 2005) (holding that “the standard for awarding attorney’s fees in dissolution cases is ... the financial ability of the other party to pay.”). This determination is properly made at the time of final judgment, when the trial court can determine the proper amount of attorney’s fees to award based on the parties’ financial situation and ability to pay at the time. See Derevere, 899 So.2d at 1153.

In the instant case, the trial court’s award of attorney’s fees is flawed for the same reason that the child support award is flawed. The trial court erroneously concluded that attorney’s fees at an hourly rate of $275 per hour and $376 in costs, amounting to $8,057.50 in fees, was reasonable. The trial court further found that the financial situation of the parties was such that both parties should share equally in paying 'the mother’s attorney’s fees. The trial court ordered the father to pay $4,216.75 in monthly installments of $250. In support of this conclusion, the trial court simply stated that the 29.3 hours the mother’s counsel expended were “reasonable and necessary due to [the] difficulty in progressing [the] case” with the father. However, at the time of the final judgment, the trial court made no specific findings of the father’s ability to pay, as it should have done.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

      . The father is a citizen and resident of the Netherlands. He contracted with a Miami hotel to work as a kitchen intern for a period of time.

      . The net income of each parent is then combined to determine the minimum amount of child support needed. § 61.30(6), Fla. Stat. (2012). ■


author: MARSTILLER, J.

text:
    Larry Gene WILLIAMS, Appellant, v. Wanda Elaine WILLIAMS, Appellee.
    No. 1D13-0803.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2014.

      Lynn W. Martin of The Law Office of Lynn W. Martin, Orange Park, for Appellant.
    J. Nickolas Alexander, Jr., Orange Park, for Appellee.
   MARSTILLER, J.

Larry Gene Williams (“Former Husband”) appeals an order finding him in civil contempt for failing to comply with prior orders which required him to: (1) make his best efforts to obtain and maintain a life insurance policy for $150,000, naming Wanda Elaine Williams (“Former Wife”) as beneficiary; (2) pay off a Lowes credit card and remove the Former Wife’s name from the account; and (3) pay the Former Wife monthly alimony. The trial court found the Former Husband failed to provide credible proof that he is unable to secure the required life insurance, failed to make timely, regular payments on the Lowes credit card despite the financial ability to do so, and failed to make even one payment toward a more than $15,000 alimony arrearage despite the financial ability to do so. The court also set a contempt purge amount of $500 which, if not timely paid, would result in a jail sentence of up to 179 days for the Former Husband. In addition, the court awarded the Former Wife a contribution toward her attorney’s fees for prosecuting her contempt motion, and by separate order, which also is being appealed, set the contribution amount at $5,000.

Seeking reversal of the contempt order, the Former Husband asserts that he presented competent, substantial evidence demonstrating his failure to obtain the life insurance policy and to make the payments, required by the final judgment of dissolution was not willful. He also argues the trial court imposed the $500 purge amount without first finding he had the present ability to pay that amount.

A judgment of contempt is presumed correct on appeal, and will not be disturbed unless there is insufficient evidence in the record to support it. See Pearson v. Pearson, 932 So.2d 601, 602 (Fla. 2d DCA 2006) (citing Milian v. State, 764 So.2d 860, 861 (Fla. 4th DCA 2000)). Moreover, in dissolution and support matters, the final judgment establishes a presumption in subsequent proceedings that the obligor has the ability to make the payments ordered. Bowen v. Bowen, 471 So.2d 1274, 1278 (Fla.1985). If the obligor defaults and contempt proceedings ensue, the obligor’s burden is to overcome the presumption with evidence that circumstances beyond the obligor’s control have arisen, rendering him or her unable to comply with the prior order. Id. at 1278-79. Our review of the Former Husband’s testimony at the contempt hearing satisfies us that the trial court correctly found he failed to sustain his burden. Therefore, we affirm the contempt determination.

As to the Former Husband’s argument that the trial court erred by failing to find he had the present ability to pay the $500 purge amount, we conclude he failed to preserve the issue for appeal. He is correct in asserting that a finding of present ability to pay is required. See Fla. Fam. L.R.P. 12.615(e) (“The court shall include in its order a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding.”); Napoli v. Napoli 142 So.3d 953, 955 (Fla. 4th DCA 2014). And the order on appeal does not expressly make such a finding, though the record includes the Former Husband’s financial affidavit showing $511 cash on hand. However, where an error by the court appears for the first time on the face of a final order, a party must alert the court of the error via a motion for rehearing or some other appropriate motion in order to preserve it for appeal. See Simmons v. Simmons, 979 So.2d 1063, 1064 (Fla. 1st DCA 2008); Owens v. Owens, 973 So.2d 1169, 1170 (Fla. 1st DCA 2007). Here, the Former Husband filed a notice of appeal the day after the trial court rendered the contempt order. The record reflects the Former Husband did file a post-judgment objection and emergency motion to modify the date by which he had to pay the purge amount. But he did so after filing the notice of appeal, when the trial court had no jurisdiction to amend .the contempt order, and, in any event, he failed to bring the lack of findings to the court’s attention. Because the error was not properly preserved for appeal, and having affirmed the contempt determination as discussed above, we affirm the contempt order in toto.

Turning to the order on attorney’s fees, the Former Husband argues the $5,000 fee award should be reversed because it is not based on competent, substantial evidence establishing the Former Wife’s need and his ability to pay. We previously reversed this fee award in Williams v. Williams, 93 So.8d 1178, 1179 (Fla. 1st DCA 2012), and remanded the matter to the trial court because the order “[did] not include any findings of the parties’ relative financial abilities or any specific findings on the reasonableness of Former Wife’s attorney’s hourly rate, number of hours expended, and the appropriateness of any reduction or enhancement factors.” The order currently before us still lacks findings on the parties’ relative financial abilities — i.e., the Former Wife’s need and the Former Husband’s ability to pay some portion of her attorney’s fees. See § 61.16, Fla. Stat.; Giovanini v. Giovanini, 89 So.3d 280, 282 (Fla. 1st DCA 2012). It states only, “The Former Husband is in a superior position to contribute to said attorneys’ fees and costs under the analysis set forth in Pelton v. Pelton, 617 So. 1152 (Fla. 1st DCA 1977) [sic].” Not only does this lone conclusion fail to satisfy the need-and-ability-to-pay requirement, it is based on a decision from this court that we cannot find. There is arguably evidence in the record from which the trial court can make the requisite finding. But we are not in a position to usurp the trial court’s authority and weigh the evidence in the first instance. Accordingly, we reverse the order on attorney’s fees and costs, and remand to the trial court to consider the relative financial standing of the parties and articulate its findings.

AFFIRMED, in part; REVERSED in part; and REMANDED.

VAN NORTWICK and PADOVANO, JJ., concur.


author: WOLF, J.

text:
    Melinda BUTLER, Petitioner, v. Sarah HARTER, Respondent.
    No. 1D14-1342.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2014.

      J. Stephen O’Hara, Jr., Jeffrey J. Hum-phries, Kathryn N. Slade of O’Hara Harl-vorsen Humphries, PA, Jacksonville, for Petitioner.
    James T. Terrell of Terrell Hogan, Jacksonville, and Michael J. Korn of Korn & Zehmer, P.A., Jacksonville, for Respondent.
   WOLF, J.

Petitioner seeks a writ of certiorari and challenges an order compelling discovery of petitioner’s litigation file. We find the trial court’s rulings that the petitioner waived attorney-client privilege by filing an affidavit in support of a request for attorney’s fees, and that a party cannot claim work-product privilege in connection with a claim for recovery of attorney’s fees, constitute clear departures from the essential requirements of law which cannot be remedied on appeal. Thus, we grant the petition for writ of certiorari.

Respondent Sarah Harter filed a complaint against petitioner Melinda Butler seeking damages stemming from a car accident. Petitioner made a proposal for settlement for $20,000. The jury returned a verdict awarding respondent $2,046. The court entered a final judgment against petitioner for $409 after setoff.

Petitioner filed a motion for fees and costs in the circuit court pursuant to her proposal for settlement as authorized by section 768.79, Florida Statutes. The motion included invoices itemizing the costs and fees incurred. It also included an affidavit from one of the attorneys of record'stating that the invoices were correct and that the costs and fees were necessarily incurred. Counsel also filed a second, nearly identical affidavit attesting to invoices that were attached to an amended motion for fees.

Respondent filed a request for production of the “entire file” of petitioner’s counsel “pertaining to this case.” Petitioner objected on the basis 'that portions of the file were protected by attorney client and work-product privileges. Petitioner filed an itemized privilege log.

Respondent then filed a motion to compel discovery of the litigation file, arguing access to the entire file was necessary in order to properly defend the motion for fees and costs. She alleged at trial that she suffered $50,000 in past medical expenses and had $100,000 in projected future medical expenses; thus, she argued petitioner’s $20,000 offer of settlement was not made in good faith. She stated, “[c]ru-cial in the court’s decision-making process will be evidence of the knowledge considerations of the defense at the time the offer was made.” She further asserted that the work-product privilege expired because the trial was over. Finally, she argued attorney-client privilege had been waived by virtue of the affidavit attached to petitioner’s fee motion.

Petitioner filed a response, arguing respondent had not made a threshold showing of how the entire litigation file was relevant. She also argued work-product privilege extended to protect the information discoverable for post-judgment fees disputes, and the attorney-client privilege was not waived. Finally, she argued counsel’s affidavit attesting to the bare accounting of hours worked did not waive attorney-client privilege or work-product privilege. Alternately, even if the affidavit did waive privilege, she argued that waiver would only extend to the information contained in the affidavit and would certainly not waive opinion work-product.

The court entered an order granting respondent’s motion to compel. The court found it needed the litigation file in order to determine whether petitioner’s offer was made in good faith:

The Court must look at the subjective motivations of the Defendant at the time the offer was made and determine whether she had the basis in known or reasonably believed facts to conclude that the offer was justifiable. In order to determine good faith, the Court has to make credibility findings. Credibility findings can only be made after an opportunity to cross-examine the witness who claims good faith. In such a case, that will necessitate the use of privileged communications, assuming proper waiver of the privilege....

The court concluded petitioner waived attorney-client privilege by her attorney’s filing of the affidavit, which was tantamount to testifying. The court also found a party cannot claim work-product privilege in connection with a claim for recovery of attorney fees.

The trial court made no case-specific determinations concerning the need for overcoming the work-product privilege in this particular case. The trial court also did not elucidate what about this particular attorney’s fee affidavit constituted a waiver of the attorney-client privilege.

I. Certiorari

We may review an interlocutory order that is not appealable under Florida Rule of Appellate Procedure 9.130 by petition for certiorari only when the petitioner establishes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal. We examine prongs two and three first to determine our certiorari jurisdiction. “If the jurisdictional prongs ... are not fulfilled, then the petition should be dismissed rather than denied.”

DeLoach v. Aird, 989 So.2d 652, 654 (Fla. 2d DCA 2007) (quoting Parkway Bank v. Ft. Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995) (internal citations omitted)). It is well established that “[c]ertiorari review ‘is appropriate in cases that allow discovery of privileged information. This is because once privileged information is disclosed, there is no remedy for the destruction of the privilege available on direct appeal.’ ” Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So.2d 504, 506 (Fla. 2d DCA 2006) (quoting Estate of Stephens v. Galen Health Care, Inc., 911 So.2d 277, 279 (Fla. 2d DCA 2005) (citations omitted)). Therefore, this court must determine whether the trial court departed from the essential requirements of the law. DeLoach, 989 So.2d at 654.

II. Good Faith Determination

Section 768.79(1), Florida Statutes, states a defendant is entitled to fees if she makes a proposal for settlement, and the judgment obtained by the plaintiff is at least 25% less than that offer:

In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. Where such costs and attorney’s fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiffs award....

However, “the court may, in its discretion, determine that an offer was not made in good faith. In such case, the court may disallow an award of costs and attorney’s fees.” § 768.79(7)(a), Fla. Stat.

Respondent argued in the trial court that to determine whether an offer was made in good faith, the court must look at the subjective motivation of the petitioner, which will necessitate the use of privileged communication. Respondent never explained why the use of privileged communication is necessary in this particular case, but instead she seems to be arguing that these types of materials are always necessary for a determination of entitlement to attorney’s fees pursuant to section 768.79.

Respondent provides no authority or explanation to support her argument that the pleadings and discovery are insufficient to determine whether the offer was made in good faith. To the contrary, many courts have relied on the pleadings and information obtained during discovery to determine whether an offer was made in good faith. See Hall v. Lexington Ins. Co., 895 So.2d 1161, 1166 (Fla. 4th DCA 2005) (affirming a finding that an offer was made in good faith, despite the fact the offer was for one-tenth of the damages claimed, because the offer was made “five years after the start of litigation and after extensive discovery” during which the defendant received documentation that the plaintiff misrepresented material facts); Donovan Marine, Inc. v. Delmonico, 40 So.3d 69, 71 (Fla. 4th DCA 2010) (“[T]he trial court correctly found that the proposal was ‘a good faith offer based upon the discovery [and] the posture of the ease at the time the offer was extended.... ’ ”); Land & Sea Petroleum, Inc. v. Bus. Specialists, Inc., 53 So.3d 348, 354-55 (Fla. 4th DCA 2011) (reversing the trial court’s finding of a lack of good faith, despite the fact the offeror had conducted little discovery, because the unenforceability of the contract was apparent from its face). Here, the trial court reasoned that the litigation file was necessary because “[credibility findings can only be made after an opportunity to cross-examine the witness who claims good faith,” and “that will necessitate the use of privileged communications, assuming proper waiver of the privilege.” However, as discussed above, whether or not an offer was made in good faith does not require privileged communications. That determination is made based on objective criteria. Thus, it seems petitioner is correct that neither respondent nor the trial court established why the privileged litigation file was necessary to conduct a good faith review of the offer for settlement.

III. Work-Product Privilege

The work-product privilege is set forth in Florida Rule of Civil Procedure 1.280, which states work product is discoverable only upon a showing of undue hardship and need, although mental impressions or legal opinions are always protected:

(4) Trial Preparation: Materials. Subject to the provisions of subdivision (b)(5) of this rule, a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that party’s representative, including that party’s attorney, consultant, surety, in-demnitor, insurer, or agent, only upon a showing that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.

Fla. R. Civ. P. 1.280(b)(4) (emphasis added). Petitioner argues she is entitled to work-product privilege here under rule 1.280 because (a) work-product privilege extends to the attorney’s fees stage of litigation; (b) respondent failed to establish need and undue hardship necessary to overcome that privilege; and (C) the information respondent seeks is opinion work product, which is always protected. We agree with all three contentions.

A. Work-Product Privilege and Motions for Attorney’s Fees

It is well-established that “work •product retains its qualified immunity after the original litigation terminates, regardless of whether or not the subsequent litigation is related.” Alachua Gen. Hosp., Inc. v. Zimmer USA, Inc., 403 So.2d 1087, 1088 (Fla. 1st DCA 1981). See also HCA Health Servs. of Fla., Inc. v. Hillman, 870 So.2d 104, 107 (Fla. 2d DCA 2003) (finding “[b]illing records of opposing counsel are to be treated as privileged work product” in a dispute over attorney’s fees).

Here, in finding work-product privilege did not extend to motions for attorney’s fees, the trial court cited Martin v. Paunovich, 632 So.2d 611 (Fla. 5th DCA 1993). Martin is distinguishable. On motion for rehearing, the Martin court held that “the work product privilege cannot be invoked by an attorney in connection with an affirmative claim for recovery of attorney’s fees to avoid a discovery inquiry concerning possible apportionment of fees among compensable and noncompensable claims.” Id. at 613. Although the majority provided no background, the dissent explained that counsel argued entitlement to the full amount of fees because apportionment was impossible, but the record clearly indicated that contention was “absurd.” Id. at 612. During deposition, counsel “refused to testify about the basis for their fee claim ... claiming it was ‘work product.’ ” Id. at 613. When counsel was asked if he had tried to apportion time on any issues, counsel responded “that’s work product” and refused to answer. Id. at 613.

Martin is distinguishable because its holding is limited to its facts — an attorney cannot claim that apportionment was impossible and then try to avoid a discovery inquiry about the possibility of apportionment by claiming work-product privilege for the basis of the fee claim. Here, petitioner is not refusing to disclose any information necessary to support her claim for fees. Any information that respondent needs to meet the burden of challenging whether the proposal was made in good faith is available from the record.

B. Need and Undue Hardship

The respondent has failed to demonstrate a “need of the materials in the preparation of [her] case and that [she] is unable without undue hardship to obtain the substantial equivalent of the materials by other means,” as required by rule 1.280(b)(4) in order to obtain work product. The respondent made no attempt in her motion or supporting memoranda to establish need or undue hardship. ■ “[W]ell established in Florida is the principle that the unsworn analysis of a party’s attorney and/or a bare assertion of need and undue hardship to obtain the substantial equivalent [is] insufficient to satisfy this showing.” Procter & Gamble Co. v. Swilley, 462 So.2d 1188, 1194 (Fla. 1st DCA 1985). Further, “the showing of need encompasses a showing of diligence by the party seeking discovery of another party’s work product.” Id.

Respondent also failed to show undue hardship. “To determine whether a moving party will experience undue hardship, courts must balance the moving party’s burden in obtaining information with the non-moving party’s burden of production.” Paradise Pines Health Care Assocs., LLC v. Bruce, 27 So.3d 83, 84 (Fla. 1st DCA 2009) (finding there was need and undue hardship sufficient to compel the discovery of incident reports because the subject of the report had since died, and it would have been “difficult, if not impossible” to independently obtain the information contained in the reports).

Petitioner is also correct that the trial court did not find need or undue hardship. The court found its credibility determination would “necessitate the use of privileged communications, assuming proper waiver of privilege,” apparently referring to the attorney-client privilege. (Emphasis added). However, the court did not find need for work product. Instead, the court found petitioner could not assert work-product privilege in connection with attorney’s fees. As discussed above, that finding was in error.

C. Opinion work product

Even assuming respondent had demonstrated need and undue hardship, the information that she seeks concerning the decision-making strategy and opinions behind petitioner’s proposal for settlement includes “opinion” work product, which is never discoverable.

Work product can be divided into two categories: “fact” work product (i e., factual information which pertains to the client’s case and is prepared or gathered-in connection therewith), and “opinion” work product (ie., the attorney’s mental impressions, conclusions, opinions, or theories concerning his client’s case). In re Sealed Case, 676 F.2d 793, 810-11 (D.C.Cir.1982). A clear distinction has been drawn between these two types of work product with respect to the degree of protection provided. Western Fuels Association v. Burlington Northern Railroad, 102 F.R.D. 201, 204 (D.Wyo.1984). Generally, fact work' product is subject to discovery upon a showing of “need,” whereas opinion work product is absolutely, or nearly absolutely, privileged.

State v. Rabin, 495 So.2d 257, 262 (Fla. 3d DCA 1986). The Rabin court explained this distinction is recognized by rule 1.280, which states that “the court shall protect against disclosure of the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation.” Fla. R. Civ. P. 1.280(b)(4) (emphasis added); Rabin, 495 So.2d at n. 6. See also 5500 N. Corp. v. Willis, 729 So.2d 508, 512 (Fla. 5th DCA 1999) (“An attorney’s mental impressions, conclusions, opinions or theories concerning the client’s case are opinion work product and are absolutely privileged” as recognized by rule 1.280). “[C]onsider-ations of need and undue hardship ... are not relevant [if] ... the protected collection of documents constitutes opinion work product, which is ‘absolutely, or nearly absolutely, privileged.’ ” Smith v. Fla. Power & Light Co., 632 So.2d 696, 699 (Fla. 3d DCA 1994) (quoting Rabin, 495 So.2d at 262).

The case at hand is analogous to Ford Motor Co. v. Hall-Edwards, 997 So.2d 1148 (Fla. 3d DCA 2008). In Ford, the Third District granted a petition for writ of certiorari quashing the order of a trial court that compelled Ford to grant access to a database created by its attorneys that functioned as a “notebook” containing the attorneys’ “thoughts, opinions, strategies, mental impressions and advice” regarding the case. Id. at 1153. The Third District found those documents “fall within the absolute immunity protecting opinion work product.” Id. at 1154. Here, petitioner argues that the specific information sought by respondent in her motion, and by the trial court in its order, was opinion work product, which is protected by absolute immunity. We agree.

In summation, the trial court departed from the essential requirements of the law by ordering production of petitioner’s litigation file because work-product privilege extends to motions for attorney’s fees, respondent failed to prove need or undue hardship, and the information from the file that respondent sought was opinion work product, which is absolutely immune from discovery.

TV. Attorney-Client Privilege

The attorney-client privilege is set forth in section 90.502(2), Florida Statutes, which states, “[a] client has a privilege to refuse to disclose, and to prevent any other person from disclosing, the contents of confidential communications when such other person learned of the communications because they were made in the rendition of legal services to the client.”

The trial court found petitioner’s attorney-client privilege was waived when her counsel filed an affidavit stating the invoices attached to the motion for fees were accurate. The court found that affidavit was tantamount to petitioner’s counsel testifying. The court cited Official Cargo Transport Co., Inc. v. Certain Interested Underwriters at Lloyds of London Subscribing to Certificate of Insurance Numbers M104255.000 & M 1014256.000, 368 F.Supp.2d 1314 (S.D.Fla.2005). That case is factually distinguishable and not binding on this court.

In Official Cargo, the plaintiff sought to have the defendant produce documents and letters of communication between the defendant’s attorney and the defendant in order to prove a lack of good faith in making a settlement offer. Counsel withheld that documentation, asserting attorney-client privilege. Id. at 1317. However, at a hearing on the matter, defense counsel failed to invoke the privilege, but instead answered questions regarding the basis, for the offer. Id. at 1318. Counsel then “stated that he wished to establish a record regarding the basis for the offer and then proceeded to establish such a record ... even reveal[ing] statements communicated to him by the client.” Id. The federal district court held that counsel waived attorney-client privilege when he testified regarding the basis for the offer, and he clearly waived the privilege when he established a record regarding the basis for the offer which included privileged communication. Id.

The case at hand is clearly distinguishable. Here, counsel’s affidavit did not discuss or disclose privileged communication between counsel and the client. Instead, counsel merely attested that the invoices itemizing the costs and fees incurred, which were attached to the motion for fees, were accurate.

“The hours expended and rate charged by defense counsel is not information protected by either the attorney-client or work product privilege.” Anderson Columbia v. Brown, 902 So.2d 838, 841-42 (Fla. 1st DCA 2005). The invoice was nothing more than a bare accounting of the hours spent and rate charged, along with broadly worded, vague descriptions of the work. Therefore, the invoice and affidavit did not disclose privileged communication and thus did not waive attorney-client privilege.

Further, even if the affidavit constituted waiver, “the attorney-client privilege would be waived with respect to other unrevealed communications only to the extent that they are relevant to the communication already disclosed.” E. Air Lines, Inc. v. Gellert, 431 So.2d 329, 332 (Fla. 3d DCA 1983). Stated differently, “if attorney-client privilege is waived regarding a certain matter, the waiver is limited to communications on the same matter.” Alliant Ins. Servs., Inc. v. Riemer Ins. Group, 22 So.3d 779, 781 (Fla. 4th DCA 2009). Further, “[i]f a party seeks to compel the disclosure of documents that the opposing party claims are protected by attorney-client privilege, the party claiming the privilege is entitled to an in camera review of the documents by the trial court prior to disclosure.... If the parties disagree as to the scope of the privilege waiver, a trial court must delineate the scope of the waiver before it may compel discovery of information.” Id. Therefore, even if privilege had been waived here, that waiver would have been limited, and petitioner would have been entitled to an in camera review.

In summation, we find the trial court departed from the essential requirements of the law in compelling disclosure of the entire litigation file, because that file is protected by work-product and attorney-client privilege. We, therefore, GRANT the petition for writ of certiorari and quash the order compelling discovery of the entire litigation file.

ROWE and OSTERHAUS, JJ., concur.


text:
    Tharod BELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2417.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2014.
    Certification Denied Jan. 14, 2015.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Tharod Bell, appeals his judgment and sentence after a jury found him guilty of two counts of attempted first-degree murder, five counts of armed robbery, five counts of aggravated assault, and five counts of false imprisonment. Bell argues that the trial court erred in giving the felony murder instruction and in denying his motion for judgment of acquittal. We disagree, and affirm.

Bell was charged by information with three counts of attempted first-degree murder, six counts of robbery with a firearm, five counts of aggravated assault with a firearm, and five counts of possession of a firearm while committing a false imprisonment arising from a robbery-turned-attempted murder occurring at a Dunkin Donuts.

On the day before Thanksgiving 2008, officers were dispatched to a Dunkin Donuts in Delray Beach. When officers arrived, they found the store in disarray; there was furniture overturned, blood, and bone fragments on the floor.

Officers learned that four men entered the Dunkin Donuts around 10:30 p.m., masked, and dressed in black. Patrons were told to get on the floor and throw their money on the floor. Although witnesses testified that all of the people inside the store complied with this request, one of the masked men, who was carrying a shotgun, shot two men in the face. While both men survived, they suffered severe injuries. As the masked men were leaving the store, the third gunshot victim pulled up to the restaurant, flashed his lights at them, and the gunman shot him as well. The third gunshot victim also survived, but experienced facial injuries from “buckshot.”

A week later, officers searched a town-home that was suspected to be occupied by one of the participants in the crime. The search yielded various credit cards and driver’s licenses of the Dunkin Donuts patrons, as well as yellow shotgun shells, the same color as the shells found at the scene.

A.G., one of the persons living in the townhome, testified that five men, including Bell, met at the townhome on the night of the crime. She saw them dressed in black from “head to toe,” and at one point, all but one left the townhome, borrowing her car. She saw one of the men retrieve a shotgun from under the couch. She stated that the four men returned a few hours later carrying a black backpack. When the men poured out the contents of the backpack, A.G. saw credit cards, checks, and money. A.G. also testified that a few days after three of the men were arrested, Bell and another suspect returned to the townhome, asked for the shotgun, and left taking it with them.

The day after officers searched the townhome, Bell and another suspect were stopped at the seaport and detained. Bell told officers he was attempting to board a cruise ship to the Bahamas.

Bell then gave a recorded interview with detectives that was played for the jury. In this interview, Bell claimed that he participated in the robbery only because the shooter threatened to kill him if he did not participate. He also stated that, while the four men were driving to the Dunkin Donuts, the shooter stated: “this time I’m going after lives, I’m claiming bodies.”

During the trial, Bell objected to the trial court instructing the jury on attempted felony murder. Bell argued that the State never alleged attempted felony murder in the original or any amended information. He also argued that the State specifically mentioned “premeditated” in the information, so the State should be entitled to travel only under the theory of attempted premeditated murder, not attempted felony murder, for the first-degree murder counts. The trial court overruled this objection, and instructed the jury on attempted felony murder, as well as attempted premeditated murder. The trial court also denied Bell’s motion for judgment of acquittal as to the counts of attempted first-degree murder.

The jury found Bell guilty of two counts of attempted first-degree murder, five counts of robbery with a firearm, five counts of aggravated assault with a firearm, and five counts of possession of a firearm while committing a false imprisonment. Bell was adjudicated guilty on all counts, and sentenced to seven life sentences and ten concurrent fifteen year sentences. This appeal follows.

Felony Murder Instruction

“Generally speaking, the standard of review for jury instructions is abuse of discretion, but that discretion, as with any issue of law is strictly limited by case law.” Krause v. State, 98 So.3d 71, 73 (Fla. 4th DCA 2012) (quoting Lewis v. State, 22 So.3d 753, 758 (Fla. 4th DCA 2009)) (internal quotation marks omitted).

The information charged Bell with first-degree murder, and specifically mentions “premeditation” in the explanatory portion. Bell argues that, since the- State' did not mention felony murder in the information, it was error for the trial court to instruct on felony murder.

Our supreme court has held that the State can pursue either a theory of felony murder or premeditated murder when it charges a defendant with premeditated murder. See Parker v. State, 904 So.2d 370, 382-83 (Fla.2005) (“It is well established that an indictment which charges premeditated murder permits the State to prosecute a defendant under alternative theories of premeditated and felony murder when the indictment charges premeditated murder.”); Kearse v. State, 662 So.2d 677, 682 (Fla.1995) (“The State need not charge felony murder in an indictment in order to prosecute a defendant under alternative theories of premeditated and felony murder when the indictment charges premeditated murder.”).

■ We have held the same. See Stanley v. State, 57 So.3d 944, 948 (Fla. 4th DCA 2011) (recognizing our supreme court’s holding that the state does not have to charge felony murder when the indictment charges premeditated murder in order to travel under that theory and using this concept to support its holding). We have also held similarly as to the crimes of attempted felony murder and attempted premeditated murder. See Dempsey v. State, 72 So.3d 258, 260-61 (Fla. 4th DCA 2011) (“[W]e conclude that [the defendant] could have been charged with attempted first-degree murder, and the State could have prosecuted [the defendant] under either attempted premeditated murder or attempted felony murder, without violating his right against double jeopardy.”).

Therefore, the trial court did not err in giving the felony murder instruction.

Motion for Judgment of Acquittal

Bell argues on appeal, only as to the attempted first-degree murder charges, that the trial court erred in denying his motion for judgment of acquittal. “In reviewing a motion for judgment of acquittal, a de novo standard of review applies.” Pagan v. State, 830 So.2d 792, 803 (Fla.2002).

Since the main evidence used against Bell was his own confession, the State provided direct evidence of his guilt. See Meyers v. State, 704 So.2d 1368, 1370 (Fla.1997) (“Because confessions are direct evidence, the circumstantial evidence standard does not apply in the instant case.”). Because the State provided direct evidence, the standard for the judgment of acquittal is:

A defendant, in moving for a judgment of acquittal, admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. The courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law. Where there is room for a difference of opinion between reasonable men as to the proof or facts from which an ultimate fact is sought to be established, or where there is room for such differences as to the inferences which might be drawn from conceded facts, the Court should submit the case to the jury for them finding, as it is their conclusion, in such cases, that should prevail and not primarily the views of the judge.

Lynch v. State, 293 So.2d 44, 45 (Fla.1974).

The State proceeded under both a premeditation and a felony murder theory for the attempted first-degree murder charges. The jury was instructed that the elements of attempted felony murder are: (1) Bell committed or attempted to commit a robbery; (2) while engaged in the commission, attempted commission or escape from the immediate scene of a robbery, the defendant committed or aided or abetted an intentional act that is not an essential element of robbery; and (3) this intentional act could have, but did not, cause the death of the victims. See also Fla. Std. Jury Instr. (Crim.) 6.3.

Bell admitted to the jury throughout the trial that he participated in the robbery, thus satisfying element one. Bell also assisted in containing the victims in the store while his co-assailant shot them, thus satisfying elements two and three. Cf. State v. Blanton, 821 So.2d 440 (Fla. 5th DCA 2002).

The jury was instructed that the elements of attempted premeditated murder are: (1) Bell did some act intended to cause the death of the victims that went beyond just thinking or talking about it; (2) Bell acted with a premeditated design to kill the victims; and (3) the act would have resulted in the death of the victims except that someone prevented Bell from killing the victims or he failed to do so. See also Fla. Std. Jury Instr. (Crim.) 6.2. Additionally, Bell was charged as a principal, for which the elements are: (1) Bell had a conscious intent that the criminal act be done; and (2) Bell did some act or said some word which was intended to and which did incite, cause, encourage, assist, or advise the other person or persons to actually attempt to commit the crime. See also Fla. Std. Jury Instr. (Crim.) 3.5(a). Bell argues that the State did not provide sufficient evidence to show that Bell had the requisite intent for attempted premeditated murder.

“As to the intent element, the state may show either that the defendant had the requisite intent or that he knew that the perpetrator had that intent.” Messer v. State, 757 So.2d 526, 529 (Fla. 4th DCA 2000). Bell argues that the State did not prove that he had knowledge of the shooter’s intent to kill because the shooter’s statement, “I’m claiming lives,” was ambiguous. We find that the shooter’s statement provided sufficient evidence for the jury to find that the shooter intended to kill people, claiming bodies and lives, and that Bell knew of the shooter’s intent through that statement. During the recorded interview of Bell, the detective asked Bell, and Bell responded:

DETECTIVE: He meant to kill each of these — he told you he meant to kill him?
BELL: Yes. Before we left, he told us “n-, I’m getting paid, but by that same time I’m grabbing bodies, I’m grabbing lifes.” [sic]

In Lewis v. State, 22 So.3d at 758, we held that the trial court properly denied the defendant’s motion for judgment of acquittal, and the jury could have inferred the defendant’s conscious intent “to commit a robbery because he heard [the co-defendantj’s statement that they were ‘fit-tin’ to go get this money,’ he was told he would get some of the money, he joined [the two co-defendants] in jumping over a gate into the community, and he knew that [the two co-defendants] had guns.” The instant case has very similar facts. Similar to the defendant in Lewis, Bell heard the shooter make a statement of an intent to commit the crime, participated in the robbery, arguably knew he would benefit from the robbery based on his participation, and also knew that the shooter had a shotgun with him during the robbery.

We therefore affirm Bell’s convictions and sentence.

Affirmed.

WARNER, MAY and CONNER, JJ„ concur.


author: WARNER, J.

text:
    Paula MINASSIAN, Appellant, v. Rebecca RACHINS and Rick Minassian, Appellees.
    No. 4D13-2241.
    District Court of Appeal of Florida, Fourth District.
    Dec. 3, 2014.

      Thomas F. Luken of The Andersen Firm, Fort Lauderdale, for appellant.
    James A. Herb and Jennifer Fulton of Herb Law Firm, Boca Raton, for appel-lees.
   WARNER, J.

In the midst of litigation in which the trustee of a family trust was being sued for accountings and breach of fiduciary duty,' the trustee appointed a “trust protector,” as allowed by the terms of the trust, to modify the trust’s provisions. These modifications were unfavorable to the litigation position of the beneficiaries, and they filed a supplemental complaint to declare the trust protector’s modifications invalid. The trial court found that, because the trust was unambiguous, the trust protector had no authority to change the-terms of the trust. We conclude, however, that the trust provisions were ambiguous, that the settlor allowed for the trust protector to act to effectuate his intent, and that the amendment was not invalid. We therefore reverse.

Zaven Minassian (“husband”) executed a statement of trust in 1999 and executed a re-statement of trust in 2008. The restatement created a revocable trust, which became irrevocable upon his death. He named himself and his wife as the sole trustees. After his death in 2010, his children filed a complaint against his wife alleging that she was improperly administering the trust. They claimed she had breached her fiduciary duties, sought a surcharge against her, and demanded an accounting of the trust.

The Restatement of Trust Document

The husband established the trust for the primary purpose of taking care of himself and his wife. Both he and his wife remained trustees of the trust during the life of the husband, the settlor. Article 8 of the restatement of trust provides that, if the wife survived the husband, the trustee should divide the trust property into two separate trusts: the Marital Trust and the Family Trust. However, if the federal estate tax was not in effect at the time of the husband’s death, the trust directed creation of only the Family Trust. The parties agree the latter circumstance occurred, and only the Family Trust was created.

Article 10, which created the Family Trust, empowers the trustee to distribute net income and principal of the Family Trust to the wife “as my Trustee, in its sole and absolute discretion, shall consider advisable for my spouse’s health, education, and maintenance.” The trustee is directed to “be mindful that my primary concern and objective is to provide for the health, education, and maintenance of my spouse, and that the preservation of principal is not as important as the accomplishment of these objectives.” One of the provisions regarding investments empowers the trustee to purchase life insurance on the wife’s life “as an investment for the Family Trust.”

Article 10 also provides that “The Family Trust shall terminate at the death of my spouse. The remainder of the Family Trust, including any accrued and undistributed net income, shall be administered as provided in the Articles that follow.” (Emphasis added). Article 11, which immediately follows, provides:

It is not my desire to create a Common Trust for the benefit of my beneficiaries. Upon the death of my spouse, or if my spouse predeceases me, all of the trust property which has not been distributed under prior provisions of this agreement shall be divided, administered, and distributed under the provisions of the Articles that follow,

The provisions for administration after the death of the settlor’s wife are contained in Article 12, which is entitled “The Distribution of My Trust Property.” Section 1 is entitled, “Creation. of Separate Shares,” and provides: “All trust property not previously distributed under the terms of my trust shall be divided into a separate trust share for each of’ the children. (Emphasis added). It directs the trustee to “create a trust share for each beneficiary....” (Emphasis added). Article 15 names “Comerica Bank and Trust, National Association” as “Trustee for any trust share created under Article Twelve ... or any other trust share created after the deaths of both me and my spouse....”

Proceedings in the Trial Court

The wife moved to dismiss the children’s complaint against her, arguing they lacked standing because they were not beneficiaries of the trust. She pointed to the trust provisions in Articles 10-12, indicating that the Family Trust would terminate upon her death, and thus argued the children could not be beneficiaries of this trust. Instead, she argued, new trusts were to be created upon her death, of which the children would be the beneficiaries. The children claimed they had standing because the trust provisions did not create a new trust, but instead created separate shares in the existing Family Trust for each child upon the wife’s death.

After reviewing the trust, the court denied the motion to dismiss, finding that Article 12’s use of the word “shares,” to • describe the interest the children would receive after the death of the wife, prevented the court from concluding that new trusts were created. The court found “the wording simply [was not] clear” and decided it “would be inappropriate on the standing grounds to deny a forum for [the children] to seek relief.”

After the trial court denied the motion, the wife appointed a “trust protector” pursuant to Article 16, Section 18 of the trust. This section authorizes the wife, after the husband’s death, to appoint a trust protector “to protect ... the interests of the beneficiaries as the Trust Protector deems, in its sole and absolute discretion, to be in accordance with my intentions....” The trust protector is empowered to modify or amend the trust provisions to, inter alia: (1) “correct ambiguities that might otherwise require court construction”; or (2) “correct a drafting error that defeats my intent, as determined by the Trust Protector in its sole and absolute discretion, following the guidelines provided in this Agreement[.]” The trust protector can act without court authorization under certain circumstances. The trust directs the trust protector, prior to amending the trust, to “determine my intent and consider the interests of current and future beneficiaries as a whole,” and to amend “only if the amendment will either benefit the beneficiaries as a group (even though particular beneficiaries may thereby be disadvantaged), or further my probable wishes in an appropriate way.” The trust provided that “any exercise ... of the powers and discretions granted to the Trust Protector shall be in the sole and absolute discretion of the Trust Protector, and shall be binding and conclusive on all persons.”

The wife filed an affidavit from her appointed trust protector stating he had “amend[ed], clarified], and corrected] ambiguities to the Trust” to effectuate the settlor’s intent. He purported to amend Article 12 to clarify that it was meant to create a new trust after the wife’s death, and grant the children shares in the new trust. The new Article 12 was entitled, “The Distribution of the Remaining, if any, Trust Property Upon the Death of [the Wife],” and Section 1 was entitled, “Creation of a Trust With Separate Shares.” The new Section 1 provided, “Upon the death of [the wife] and the termination of the Family Trust as provided in Article Ten, Section 7, if there is any property remaining, it shall be disbursed to a new trust to be created upon the death of [the wife] with a separate share for each of’ the children. (Emphasis added).

The children filed a supplemental complaint challenging the validity of the provisions amended by the trust protector. Both parties then moved for summary judgment as to the validity of the trust protector amendments.

The court entered an order granting the children’s motion for partial summary judgment and denying the wife’s motion. The court found the trust protector’s amendment was improper because it did not benefit the beneficiaries as a group or further the settlor’s probable wishes, as required under the trust. The court found the amendment did not benefit all the beneficiaries because it would leave the children without the ability to challenge the actions of the wife as trustee, leaving her “to do as she wishes without having to annually account to the children.... ” The court found the trust protector’s amendment also did not further the settlor’s probable wishes in an appropriate way because the settlor “clearly intended to provide for his children from the Family Trust at the time of his wife’s death[.] The children were to share in whatever remained.”

The court did not rely on the testimony of the trust protector in determining the husband’s intent, instead finding that, “by examining' the four corners of the document, and also examining the plain language he used, the meaning of the document is clear.” The court relied on the original Article 12’s reference to “trust shares.” The court also noted that, in the provisions regarding the trust protector, the trust restatement referred to “my spouse and beneficiaries.” The court found this indicated “the entire trust was intended not only to benefit his wife, but also his children,” because it “shows that when he speaks of his ‘beneficiaries’ he is referring to individuals other than his wife.”

The'court relied on several provisions it saw as establishing “[t]he continuity of the trust beyond the life or remarriage of the wife[.]” It cited the trustee’s authority to purchase life insurance on the settlor’s wife “as an investment for the Family Trust,” reasoning, “[t]here would be no need for such an investment if the Family Trust ceased to exist upon the wife’s death.” The court rejected the literal language of Article 10, Section 7 — which provides the Family Trust terminates on the death of the wife and the remainder shall be administered as provided in the articles following Article 10 — because “there would be no ‘remainder’ if the trust actually terminated, and the ‘[ajrticles that follow’ create ‘separate trust shares’ not trusts.”

As further proof that Article 12 did not create a new trust for the children upon the wife’s death, the court relied on Article 12, Section 2, which noted that the trust shares of the husband’s children, if passed down by inheritance, would be “administered as a separate trust[.]” The court reasoned that this “shows [the husband] knew how to create new trusts, and only does so after his children die[.]” The court concluded, “If the Trust Protector wished to amend a drafting error to effectuate the settlor’s intent or benefit all the beneficiaries, he should have amended Article 10, Section 7, which speaks of termination of the trust[.]”

The court entered partial summary judgment for the children, invalidating the amended provisions, and the wife timely appealed.

Analysis

We first address the validity of the trust protector provision in the trust, because if it is invalid under Florida law, then any amendments created by the trust protector would likewise be invalid. On the other hand, if those provisions aré valid, then the trust provides that the trust protector can exercise his powers in his sole and absolute discretion, and his actions are binding and conclusive on all persons.

The Florida Trust Code provides: “The terms of a trust may confer on a trustee or other person a power to direct the modification or termination of the trust.” § 736.0808(8), Fla. Stat. (2008) (emphasis added). This section was adopted from the Uniform Trust Code, which contains identical language in section 808(c). See Unif. Trust Code § 808 (2000). The commentary to this section states:

Subsections (b)-(d) ratify the use of trust protectors and advisers.... Subsection (c) is similar to Restatement (Third) of Trusts Section 64(2) (Tentative Draft No. 3, approved 2001).... “Trust protector,” a term largely associated with offshore trust practice, is more recent and usually connotes the grant of greater powers, sometimes including the power to amend or terminate the trust. Subsection (c) [as enacted in section 736.0808(3), Florida Statutes] ratifies the recent trend to grant third persons such broader powers....
The provisions of this section may be altered in the terms of the trust. See Section 105. A settlor can provide that the trustee must accept the decision of the power holder without question. Or a settler could provide that the holder of the power is not to be held to the standards of a fiduciary....

Id. at Editors’ Notes (emphasis supplied). See generally Peter B. Tiernan, Evaluate and Draft Helpful Trust Protector Provisions, 38 Estate Planning 24 (July 2011).

The children make two arguments as to the inapplicability of section 736.0808(3). First, they contend that this provision conflicts with “the black letter common law rule '... that a trustee may not delegate discretionary powers to another.” Second, they argue that sections 736.0410-736.04115 and 736.0412, Florida Statutes, provide the exclusive means of modifying a trust under the Florida Trust Code. We reject both arguments.

As to the conflict with the common law, which precludes non-delegation of a trustee’s discretionary powers, this argument fails for two reasons. First, it is not the trustee that is delegating a duty in this case, but the settlor of the trust, who delegates his power to modify to a third person for specific reasons. Second, “The common law of trusts and principles of equity supplement [the Florida Trust Code], except to the extent modified by this code or another law of this state.” § 736.0106, Fla. Stat. (2008) (emphasis added); see also Abraham Mora, et al., 12 Fla. Prao., Estate Planning § 6:1 (2013-14 ed.) (“The common law of trusts supplements the Florida Trust Code unless it contradicts the Florida Trust Code or any other Florida law.”). Thus, section 736.0808, Florida Statutes, supplements common law, and to the extent the common law conflicts with it, it overrides common law principles.

Sections 736.0410-736.04115 and 736.0412, Florida Statutes, provide means of modifying a trust under the Florida Trust Code. The children argue the terms of the trust cannot prevail over these provisions, so as to add a method of modification via trust protector, because section 736.0105 provides, “The terms of a trust prevail over any provision of this code except ... [t]he ability to modify a trust under s. 736.0412, except as provided in s. 736.0412(4)(b).” § 736.0105(2)(k), Fla. Stat. (2008). Yet section 736.0808(3), Florida Statutes, expressly allows a trust to confer the power to direct modification of the trust on persons other than trustees. “[A] court must consider the plain language of the statute, give effect to all statutory provisions, and construe related provisions in harmony with one another.” Hechtman v. Nations Title Ins. of New York, 840 So.2d 993, 996 (Fla.2003). These provisions of Chapter 736 can be harmonized by concluding that the sections on modifying trusts do not provide the exclusive means to do so, at least insofar as a trust document grants a trust protector the power to do so. Otherwise, section 736.0808(3) would have no effect. Therefore, we conclude that the Florida Statutes do permit the appointment of a trust protector to modify the terms of the trust.

The trial court found that the trust protector acted outside his powers, because he amended a trust instrument that the trial court found to be unambiguous. Thus, the trial court concluded, the trust protector’s amendment was contrary to the husband’s intent, as expressed in the unambiguous trust document. We, however, conclude that the instrument was indeed ambiguous.

The trial court’s interpretation of the trust documents is reviewed de novo. See Vetrick v. Keating, 877 So.2d 54, 56 (Fla. 4th DCA 2004) (reviewing summary judgment interpreting trust document, noting review was de novo); see also Wells Fargo Bank, N.A. v. Morcom, 125 So.Sd 320, 321 (Fla. 5th DCA 2013) (“The standard of review governing the ruling of a trial court on a motion for summary judgment posing a pure question of law is de novo.”).

Generally, “[t]he polestar of trust or will interpretation is the settlor’s intent,” which should be “ascertained from the four corners of the document through consideration of ‘all the provisions of the will [or trust] taken together Bryan v. Dethlefs, 959 So.2d 314, 317 (Fla. 3d DCA 2007) (quoting Sorrels v. McNally, 89 Fla. 457, 105 So. 106, 109 (1925)). Where the terms of a trust agreement are unambiguous, the court should not refer to parol evidence to interpret its meaning. In re Estate of Barry, 689 So.2d 1186, 1187-88 (Fla. 4th DCA 1997). “The fact that both sides ascribe different meanings to the language does not mean the language is ambiguous so as to allow the admission of extrinsic evidence.” Bryan, 959 So.2d at 317 n. 2 (quoting Kipp v. Kipp, 844 So.2d 691, 693 (Fla. 4th DCA 2003)).

The provisions of the trust at issue here are conflicting. Article 10 provides that on the death of the trustee, the trust shall terminate. Article 11 states that it is not the intent of the settlor to create a common trust for his wife and other beneficiaries. However, Article 12 then directs that upon the death of the wife the trust assets shall be distributed into separate trust “shares” fqr the beneficiaries. The term “share” makes these trust provisions ambiguous, as it is unclear whether the term share constitutes a new trust.

Other provisions in the trust document support the interpretation, contrary to the trial court’s one-trust interpretation, that the husband intended to create separate trusts for the wife and children. Article 11 contains his specific admonition that he did not intend to create a common trust. In the trust protector provisions, the document several times refers to the creation of multiple trusts: a trust protector “may be appointed for any trust created in this agreement”; “All trusts created under this instrument need not have or continue to have' the same Trust Protector”; and “the Trust Protector may, with respect to any trust as to which the Trust Protector is acting-” (Emphasis added). Article 15 of the trust also includes provisions for appointing a trustee for “My Beneficiaries’ Separate Trusts,” i.e., “any trust share created under Article Twelve ... or any other trust share created after the deaths of both me and my spouse.... ” Article 15, Section 3(f) provides that a beneficiary who attains the age of 35 shall serve as the trustee of his or her respective trust share. These are but some of the provisions which refer to both trusts and trust shares, even though the overall structure of the trust contemplates something separate and apart from the Family Trust.

Moreover, the provisions relied upon by the trial court in determining that there was only one trust (the Family Trust) do not unambiguously support its conclusion. First, the court believed that the reference to multiple “ ‘beneficiaries’ in the plural” showed that the Family Trust was to benefit the children, but that language is also consistent with the existence of multiple trusts.

Second, the court pointed to Article 10, Section 7 — that the wife shall not receive any benefits from the trust should she remarry, but could again receive benefits under the Family Trust if her re-marriage ends — as indicating the continuity of the trust beyond the life or remarriage of the wife. This, however, does not defeat the argument that the Family Trust terminates on her death, because Article 10, Section 7 covers only her remarriage. Thus, the family trust would continue until her death, but the wife could not draw from it after remarriage. This is not at all inconsistent with termination at the death of the wife.

Third, while the court thought that the ability to purchase life insurance on the wife showed that only one trust was intended, that provision was simply an investment provision and the trustee could not use trust income for such purchase. The trustee might wish to purchase life insurance on the settlor’s wife as an investment for the Family Trust or to pay last expenses for the wife, even if the Family Trust terminates on her death, because the remaining property in the trust will be used to fund the children’s trusts.

The trial court also relied on its conclusion that “there would be no ‘remainder’ if the [Family] [T]rust actually terminated[.]” Although it may not be proper to refer to such an interest as a “remainder,” distributees are entitled to the trust property upon the termination of a trust, as directed in the trust document. See § 736.0410, Fla. Stat. (2008) (“[A] trust terminates to the extent the trust ... is properly distributed pursuant to the terms of the trust.”); § 736.0817, Fla. Stat. (2008) (“Upon the occurrence of an event terminating or partially terminating a trust, the trustee shall proceed expeditiously to distribute the trust property to the persons entitled to the property....”); see, e.g., Yates v. Wessel, 775 So.2d 993, 994 (Fla. 4th DCA 2000) (noting “[t]he duration of a trust is governed by the trust instrument,” and interpreting the trust as terminating on death of settlors, “at which time, under the trust, the property was to be distributed to” their daughter). In fact, Article 12 is titled “The Distribution of My Trust Property” and uses the term “distribution” throughout that section.

In sum, the single-trust interpretation reached by the trial court does not appear to be unambiguously supported by the trust document. We therefore reject the trial court’s conclusion that the trust is unambiguous. In fact, we find that it is patently ambiguous on the issue of whether a new trust is created, where the language in the trust instrument dictates that the Family Trust terminates on the death of the wife.

Although the trial court did not consider it, there was uncontradicted evidence in the record as to the husband’s intent, including an affidavit and deposition from the trust protector, who was the original drafter of the trust instrument. “Where as here ... there is a patent ambiguity as to the testator’s intent, the court below was free to consider extrinsic evidence on the subject.” First Union Nat’l Bank of Fla., N.A. v. Frumkin, 659 So.2d 463, 464 (Fla. 3d DCA 1995).

The trust protector testified in a deposition that he met with the husband twice, first in person to discuss his estate planning desires, and second over the phone to discuss and execute the documents he had drafted. During the husband’s life, the husband and wife’s “lives revolved around horse racing and legal gambling,” and, in the trust, the husband wanted “to provide for [the wife] in the way they had lived in the past....” The plan was “to create a separate Trust for the benefit of. his children” which “would be created only if the Family Trust described in Article 10 ... was not exhausted during [the wife’s] lifetime[.]” The purpose of Article 10, Section 7 and Article 11 was “to assure that the Family Trust was not in any way associated to a new Trust that might be created for his children.” The trust protector also stated, “This challenge by the children is exactly what [the husband] expected.” The trust protector noted that the husband referred to his daughter in derogatory terms, and that the daughter had not seen her father in years.

From the trust protector’s affidavit, it appears that the husband settled on the multiple-trust scheme for the very purpose of preventing the children from challenging the manner in which the wife spent the money in the Family Trust during her lifetime. The trust protector also testified that his law firm always recommends this split-trust approach, rather than what he referred to as a “pot trust ... where everything goes into the pot for the beneficiaries.” He testified, “We have never done it the other way you’re talking about, about keeping the same trust.” On that basis, he prepared the amendments to the trust to reflect this intent of the testator.

Based upon our conclusion that the trust agreement was ambiguous and the trust protector’s amendments were made to effectuate the settlor’s intent, the amendments that he made to the trust are within his powers. The amendments may have disadvantaged the children, but the trust protector was authorized the correct ambiguities with the limitation that he act either to benefit a group of beneficiaries or to further the husband’s probable wishes. He acted to correct ambiguities in a way to further the husband’s probable wishes. As the drafting agent, he was privy to what the husband intended.

It was the settlor’s intent that, where his trust was ambiguous or imperfectly drafted, the use of a trust protector would be his preferred method of resolving those issues. Removing that authority from the trust protector and assigning it to a court violates the intent of the settlor.

We therefore reverse the partial final judgment of the trial court and remand with directions that the trust protector’s amendments are valid. We reject all other arguments made by the children against the validity of these provisions, although not ruling on any matters beyond that issue.

CONNER and KLINGENSMITH, JJ„ concur.

      . We conclude that we have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.110(k), as the issue regarding the amendment of the trust by the trust protector is separate from the initial issues in the case and arose after the filing of the original complaint. This is the only issue for which this court has jurisdiction at this time.