author: DONALDSON, Judge. THOMPSON, Presiding Judge, concurring in part and dissenting in part. MOORE, Judge, concurring in part and dissenting in part.

text:
    Carl David MYERS v. Kimberly Berry MYERS
    2160391
    Court of Civil Appeals of Alabama.
    March 30, 2018
    Thomas H. Nolan, Jr., Mobile; and Joshua B. Boone of Claude D. Boone, P.C., Mobile, for appellant.
    Grady R. Edmondson, Mobile, for appellee.
   DONALDSON, Judge.

Carl David Myers ("the husband") has appealed from a judgment of the Mobile Circuit Court ("the trial court") that, among other things, divorced him from Kimberly Berry Myers ("the wife"). The husband challenges the judgment insofar as it awards alimony to the wife, divides the parties' property, orders the husband to pay the private-school tuition for the parties' minor child, and fails to award joint legal custody of the child to the parties. We reverse the judgment and remand the cause.

Facts and Procedural History

The parties were married in 1993 and had two children born during their marriage, L.M. ("the minor child") and W.M. ("the oldest child"). Only L.M. remained a minor at the time of the divorce proceedings.

The husband filed a complaint for a divorce in September 2015 in which he sought, among other things, an equitable division of the parties' property and an "appropriate determination concerning custody of and visitation with the parties' minor child." The wife filed an answer and a counterclaim for a divorce in which she asserted, among other things, that she "is the fit and proper person to be entrusted with [the minor] child's care and custody subject to supervised visitation" with the husband.

In December 2015, after holding an "office conference," on the parties' pending motions regarding visitation, the trial court granted the husband supervised visitation with the minor child. The trial court also ordered the family to submit to a psychological evaluation.

The trial court held a trial on September 30 and October 4, 2016. The testimony indicated that the husband had developed a successful veterinary practice during the parties' marriage. The husband testified that he gave the wife approximately $14,500 each month to deposit in the parties' joint bank account and that all of their expenses were paid from that account. The husband testified that, after he filed for a divorce, he began depositing $3,000 into the parties' joint account but that he had continued to pay all of their joint expenses. The husband testified that marital problems began in May 2015, when he told the wife to pay the oldest child's college tuition out of their savings account rather than his business account. The husband testified that "there was never enough" money for the wife during the marriage.

The husband was unable to answer many questions regarding his income or other financial matters and testified that his accountant had handled those issues. The accountant's testimony indicated that the husband earns the Social Security limit each year, which she testified is currently $118,000, but that he also receives stockholder dividends and rental income of $225,000. In 2015, the husband earned an income of $414,000. The evidence indicated that at the time of the trial, the husband had financial accounts totaling approximately $1 million.

The husband testified that he and the wife attended marriage counseling three times but that the wife had refused to go back to counseling. According to the husband, the wife and the children left the marital residence and moved in with the wife's parents in July 2015. The husband testified that he filed for a divorce in September 2015 because the wife had "done everything in her power to alienate my kids." The husband testified that he had been visiting with the minor child at a family-visitation center during the divorce proceedings and that it had been "terrible." The husband testified: "She cries, she's rude, she is disrespectful. She tells me she will never go anywhere with me, she will run away, she hates me."

The wife testified that the husband had provided financially for the family during the marriage and that she had stayed home with the parties' children for the majority of the marriage. The wife testified that she believed that the husband had had an affair approximately 10 years before the divorce action was commenced but that they had remained together. The wife also testified that the husband had "rage" problems, that he would become angry and had thrown items, but that he had not directly physically harmed her or the children.

The wife testified that the husband would give her three checks totaling approximately $14,500 each month and that she would deposit the checks into their joint bank account. The wife testified that the husband had handled all the financial matters during the marriage and that she did not know how much income he earned until the divorce proceedings. According to the wife, the husband had not been very involved in the children's lives. The wife testified that, beginning in 2005, the husband was gone every weekend to participate in clay-shooting tournaments and that he began drag racing in 2012. The wife also testified that the husband, in recent years, had begun spending the majority of his time at work and at a home the parties owned in Dauphin Island. The oldest child also testified that the husband had often been absent from her and the minor child's lives and that she had "no relationship" with the husband. The oldest child recounted a few instances in which, she asserted, the husband had displayed "rage" and bizarre behavior.

The wife testified that she had relied on credit cards to pay her expenses since the divorce proceedings began. She testified that, although she intended to secure employment, she was not sure if or when that would happen. The wife asked the trial court to award her $3,000 in monthly child support, $10,000 in monthly periodic alimony, and half of all the parties' and the husband's financial accounts, among other things.

On October 13, 2016, the trial court entered an order divorcing the parties. That order provides, in pertinent part:

"2. By agreement of the parties, the primary residential custody of the minor child is awarded to the wife.
"3. The [husband's] visitation shall be as follows by agreement of the parties: He shall complete two more visitations at the Family Center. Then he shall have the following two Saturdays in a row from 9:00 a.m. to 5:00 p.m. He shall be accompanied by at least one of his relatives during the visitation. Thereafter, the visitation shall be standard visitation as set out below ....
"6. With respect to child support, the Court does award the wife child support in the amount of $2,000 per month ....
"....
"8. With respect to the private school ... the husband shall pay the private school tuition ... for the [minor] child for the remainder of this school year. He shall continue to pay the private school tuition pending further orders. However, if the visitation continues to be a problem still at the end of the school year, upon proper motions being filed with the Court, the Court will consider whether or not he shall be responsible for paying for the private school tuition solely.
"9. With respect [to] periodic alimony, the Court does award the wife $10,000 per month for five years and thereafter, she is awarded $7,000 per month. The Court does note that the husband earns over $700,000 per year and has additional benefits from his employment at this stage of his life and that the totality of circumstances make this award fair and reasonable.
"....
"11. With respect to the Hunter house, the wife shall have first right of refusal to buy the husband's interest out of same house for one-half of the equity in the house and assuming the refinancing of the mortgage into her sole name. If she does not exercise her first right of refusal within 90 days, the property shall be sold on the open market to the highest bidder. The wife shall be allowed to remain in the homeplace until it sells and shall be responsible for the mortgage and property taxes and insurance and upkeep of the house pending the sale. If the husband pays the mortgage, he may deduct it from the alimony.
"12. With respect to the Dauphin Island house, the husband shall have first right of refusal to buy the wife's interest out of same house for one-half of the equity in the house and assuming the refinancing of the mortgage into his sole name. If he does not exercise his first right of refusal within 90 days, the property shall be sold on the open market to the highest bidder. The husband shall be allowed to remain in the Dauphin Island house until it sells and shall be responsible for property taxes and insurance and upkeep of the house pending the sale.
"13. In the event the houses are not purchased by the parties, the Court does reserve the right to appoint a Commissioner to sell the property to the highest bidder for cash and any profit or deficiency shall be shared equally by the parties.
"14. The Court does award the clinic building and lot to the husband.
"15. The Court does award the wife a judgment in the amount of $250,000 against the husband representing alimony in gross. The husband shall pay off same $250,000 to the wife as follows: $100,000 within three months and the balance within six months.
"16. The husband shall make arrangements for the professional corporation to convey the 2013 F150 to the wife and shall pay any indebtedness due thereon, if any. The husband shall make arrangements for his veterinarian professional corporation to convey the 2011 4-Runner to the parties' daughter, [W.M.].
"17. The husband shall be awarded all other interest in the veterinarian professional corporation, including the equipment and all assets, and shall be responsible for all indebtedness, if any.
"18. The husband is awarded the one-third interest in the boat, the golf-cart, the Seado, and the guns and the gun safe.
"19. The wife shall be responsible for her indebtedness with the Visa and American Express and the husband shall be responsible for any indebtedness in his name, if any.
"....
"21. With respect to the cash accounts, the husband shall immediately write a check to the wife from his personal checking account in the amount of $45,000. The husband shall write a check to the wife from his personal money market account in the amount of $100,000. The husband shall make arrangements for the wife to be awarded $200,000 from the PC money market account. The husband shall be awarded all other money in the PC.
"22. With respect to the retirement accounts, the wife shall be awarded the remaining money in her retirement account and shall be awarded $39,000 from the husband's retirement account. The wife shall be responsible for preparing the proper qualified domestic relations order to reflect the transfer of $39,000 from the husband's retirement account.
"23. With respect to the money in [the wife's attorney's] trust account, same money shall be held pending the hearing regarding the attorney's fee.
"24. The Court does set the attorney's fee hearing over to November 2, 2016 at 9:00 a.m. to determine how much attorney's fee the husband will be responsible for paying, if any."

We note that the failure of a judgment to adjudicate a claim for attorney's fees does not ordinarily render that judgment nonfinal. Blythe v. Blythe, 976 So.2d 1018, 1020 (Ala. Civ. App. 2007). In this case, however, the trial court ordered that money contained in the wife's attorney's trust account, which consisted of proceeds from the wife's 401(k) account and was subject to division between the parties, be held pending a decision on the wife's request for an award of attorney's fees. Thus, the October 13, 2016, order was not a final judgment because it did not "completely adjudicate all issues between the parties." Faellaci v. Faellaci, 67 So.3d 923, 925 (Ala. Civ. App. 2011).

The husband filed a motion seeking to alter, amend, or vacate the October 13, 2016, order, in which he asserted, in part:

"2. The Court's order as it relates to custody of the minor child is incomplete and due to be amended. The order reflects an agreement was reached by the parties, but the order fails to state that the parties shall share joint legal custody of the minor child. The language of the order indicates an intent to award joint legal custody, but the order fails to specifically state such an award, and should be amended to clearly state the parties share joint legal custody as agreed ....
"....
"6. The Court further ordered the [husband] to continue paying the minor child's private school tuition pending further orders of the Court. Again, in light of the substantial child support award, into which educational expenses are factored by rule, and the substantial assets awarded to the [wife], the Court's order that the [husband] continue paying the private school tuition, particularly in light of the alienation evidence offered, is wholly inequitable and not supported by the evidence. Further, much like the analysis in the landmark [ Ex parte] Christopher [, 145 So.3d 60 (Ala. 2013),] decision, it is fundamentally unfair to order a divorced parent to pay for private school tuition when similarly situated married parents cannot be legally obligated to pay such private school expenses. Paragraph 8 of the Judgment of Divorce also violates the substantive and procedural rights of the Plaintiff-father which are, '... fundamental in nature and protected by the Due Process Clause of the Fourteenth amendment.' See generally Ex Parte E.R.G., 73 So.3d 634, 647 (Ala. 2011) (recognizing and enforcing the fundamental rights of parents). Said provision also violates the Equal Protection Clause of the Fourteenth Amendment to the Constitution.
"7. The periodic alimony awarded to the [wife] in this matter is not supported by the evidence in this cause. No need for said sum was demonstrated by the evidence. The record is also devoid of any evidence to establish a standard of living which justifies the award of the amount of periodic alimony. The evidence was undisputed that the [wife] has a degree from a two-year college, she worked during the marriage, and she further testified that she was searching for full time employment with an intent to return to full time employment. In addition, although the [wife] claimed she needed $10,000.00 in spousal support, she admitted that she spent upwards of $4,500.00 per month for the benefit of an adult child born of the marriage, including $1,500 per month in college tuition. In requesting periodic alimony, the [wife] included these expenses which were clearly for the benefit of an adult child, and expenses related to the minor child, expenses which are surely covered by child support. Based on the [wife's] own testimony, the amount of alimony should be reduced by, at least, $4,500.00 per month. The award of periodic alimony made represents an attempt to compel the [husband] to contribute to expenses related to the adult child's college expenses in a way that circumvents the Christopher decision. Further, by her own testimony, the [wife] admitted that her expenses are not great, and that the majority of the alimony she was requesting was to pay expenses for her two children. The amount and duration of periodic alimony awarded is excessive, inequitable, and improper.
"8. The award of a judgment against the [husband] in the sum of $250,000.00 is not supported by the evidence, nor the equities of the case. The Judgment of Divorce in subsequent paragraphs effectively divided every individual cash account held by the parties. As a result, the [husband] will not have sufficient funds to satisfy this provision. Any alimony in gross award must be payable out of a party's present estate and may not be based on future earnings."

On December 8, 2016, after a hearing, the trial court entered an order awarding one-half of the funds in the wife's attorney's trust account to the husband and the other half to the wife's attorney. Because the December 8, 2016, order resolved all of the pending issues, the judgment became final on that date.

On January 4, 2017, the wife filed a motion pursuant to Rule 59, Ala. R. Civ. P., seeking to alter, amend, or vacate the December 8, 2016, judgment in which she challenged the division of the funds in the attorney's trust account. On January 25, 2017, after a hearing on the husband's motion to alter, amend, or vacate the October 13, 2016, order, the trial court entered an order modifying the October 13 order to include an exchange location for the minor child's visitation and expressly denied "all other matters."

On March 3, 2017, the husband filed his notice of appeal to this court, which was held in abeyance pursuant to Rule 4(a)(5), Ala. R. App. P., until March 8, 2017, when the trial court entered an order denying the wife's postjudgment motion.

Discussion

I. Child Custody

The husband first challenges the judgment because it does not award the husband joint legal custody of the minor child, which he contends was agreed between the parties. Although the judgment does not use the statutory language set forth in § 30-3-151, Ala. Code 1975, because the judgment specifically grants the wife "primary residential custody," grants the husband specified rights of visitation with the minor child, and orders the husband to pay child support, we construe the judgment as granting the wife sole physical custody. See § 30-3-151(5), Ala. Code 1975. See also Johnson v. Johnson, [Ms. 2160809, Jan. 26, 2018] --- So.3d ----, ---- n. 1 (Ala. Civ. App. 2018) (construing a judgment that awarded "primary physical custody" to the father and visitation rights to the mother as awarding sole physical custody to the father).

The judgment is silent as to the issue of legal custody, and the judgment does not contain any information related to either parent's "rights and responsibilities to make major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training," § 30-3-151(2) and (4), and this court is unable to make any inferences regarding what type of legal custody the trial court intended to award.

The husband contends that, "[w]here a [divorce judgment] is ambiguous as to whether the trial court intended to award joint legal custody, remand is proper for the court to clarify[ ] its intention," and he cites Chapman v. Chapman, 218 So.3d 339, 346-47 (Ala. Civ. App. 2016), in support of his contention. The wife offers no legal authority in response and asserts only that "an interpretation that [the judgment] awards the Wife sole legal custody is clearly supported by the evidence presented at trial because only the Wife requested custody at trial." In Chapman, the trial court's judgment contained inconsistent and conflicting language related to the child-custody award, and this court was unable to determine whether the trial court had correctly deviated from the child-support guidelines in fashioning its child-support award. Id. at 346-47. This court reversed the judgment as it related to child custody and child support and remanded "the cause for the trial court to clarify its custody determination and to specify[, among other things,] whether it granted the parties joint legal custody of the child or granted the wife sole legal custody of the child ...." Id. at 347. Similarly, we cannot determine whether the trial court intended to award joint legal custody to the parties or sole legal custody to the wife. Therefore, we reverse the judgment as it pertains to the child-custody award and remand the cause with instructions for the trial court to enter a judgment clarifying its legal-custody award. Id.

II. Private-School Tuition

The husband also challenges the trial court's order requiring the husband to continue to pay the minor child's private-school tuition "for the remainder of this school year" and "pending further orders." The trial court noted, "[h]owever, if the visitation continues to be a problem still at the end of the school year, upon proper motions being filed with the Court, the Court will consider whether or not [the husband] shall be responsible for paying for the private school tuition solely."

The husband first asserts that the trial court's award of private-school tuition does not comply with Rule 32(C)(4), Ala. R. Jud. Admin. Rule 32(C)(4) provides:

"(4) Additional Awards for Child Support. In addition to the recommended child-support order, the court may make additional awards for extraordinary medical, dental, and educational expenses if (i) the parties have in writing agreed to these awards or (ii) the court, upon reviewing the evidence, determines that these awards are in the best interest of the children and states its reasons for making these additional awards."

Private-school tuition is considered an "additional award" under the purview of Rule 32(C)(4). Deas v. Deas, 747 So.2d 332, 337 (Ala. Civ. App. 1999) ; see also McGowin v. McGowin, 991 So.2d 735, 742 (Ala. Civ. App. 2008). The requirements of Rule 32(C)(4) are applicable "even in the case of high-income parents whose basic child-support obligation is not determined by reference to the [child-support] guidelines." J.D.A. v. A.B.A., 142 So.3d 603, 618 (Ala. Civ. App. 2013).

It is undisputed from the record before us that the parties did not agree, in writing or otherwise, for the husband to pay the minor child's private-school tuition, which would have supported the award under Rule 32(C)(4)(i). See Etheredge v. Etheredge, 730 So.2d 245, 248 (Ala. Civ. App. 1999) (affirming a trial court's award of private-school tuition when evidence conflicted regarding whether the father in that case had agreed to pay the tuition). Therefore, in order to properly make this additional award, the trial court was required to determine that the award is in the minor child's best interest and to state its reasons for making such an award. Because the judgment does not contain a statement of the reasons for ordering the husband to pay the minor child's private-school tuition, as required by Rule 32(C)(4)(ii), we must reverse the judgment insofar as it orders the husband to pay the minor child's private-school tuition. See J.D.A., 142 So.3d at 618 (reversing an award of automobile-related expenses for a child when the trial court failed to comply with Rule 32(C)(4)(ii) ). As we explained in J.D.A., supra, on remand the trial court, in determining whether the husband should pay the child's private-school tuition, should consider that,

" '[w]hen the combined adjusted gross income exceeds the uppermost limit of the child support schedule, the amount of child support awarded must rationally relate to the reasonable and necessary needs of the child, taking into account the lifestyle to which the child was accustomed and the standard of living the child enjoyed before the divorce, and must reasonably relate to the obligor's ability to pay for those needs.'
" Dyas v. Dyas, 683 So.2d 971, 973-74 (Ala. Civ. App. 1995) (some emphasis added; footnote omitted)."

J.D.A., 142 So.3d at 619.

The husband also argues that "[t]he trial court abused its discretion by ordering the [husband] to pay expensive private school tuition for a child who, at least substantially, if not entirely, as a result of the wife's alienation, refuses to have a relationship with him." However, we need not address the remainder of the husband's arguments related to the award of private-school tuition because we have reversed the award on another ground.

III. Alimony and Property Awards

The husband also challenges the trial court's award of $10,000 per month in periodic alimony to the wife for five years, followed by an award of $7,000 per month.

"The determination of whether the petitioning spouse has a need for periodic alimony, of whether the responding spouse has the ability to pay periodic alimony, and of whether equitable principles require adjustments to periodic alimony are all questions of fact for the trial court, Lawrence v. Lawrence, 455 So.2d 45, 46 (Ala. Civ. App. 1984), with the last issue lying particularly within the discretion of the trial court. See Nolen v. Nolen, 398 So.2d 712, 713-14 (Ala. Civ. App. 1981). On appeal from ore tenus proceedings, this court presumes that the trial court properly found the facts necessary to support its judgment and prudently exercised its discretion. G.G. v. R.S.G., 668 So.2d 828, 830 (Ala. Civ. App. 1995). That presumption may be overcome by a showing from the appellant that substantial evidence does not support those findings of fact, see § 12-21-12(a), Ala. Code 1975, or that the trial court otherwise acted arbitrarily, unjustly, or in contravention of the law. Dees v. Dees, 390 So.2d 1060, 1064 (Ala. Civ. App. 1980)."

Shewbart v. Shewbart, 64 So.3d 1080, 1089 (Ala. Civ. App. 2010).

The husband argues that the alimony award was improper because, he says, it was not supported by the evidence, it included funds for support of the parties' oldest child, it rewards the wife's alleged parental alienation, and it is excessive when considering the other awards the wife received.

"A petitioning spouse proves a need for periodic alimony by showing that without such financial support he or she will be unable to maintain the parties' former marital lifestyle. See Pickett v. Pickett, 723 So.2d 71, 74 (Ala. Civ. App. 1998) (Thompson, J., with one judge concurring and two judges concurring in the result). As a necessary condition to an award of periodic alimony, a petitioning spouse should first establish the standard and mode of living of the parties during the marriage and the nature of the financial costs to the parties of maintaining that station in life. See, e.g., Miller v. Miller, 695 So.2d 1192, 1194 (Ala. Civ. App. 1997) ; and Austin v. Austin, 678 So.2d 1129, 1131 (Ala. Civ. App. 1996)."

Shewbart, 64 So.3d at 1087-88.

When asked about her monthly expenses to support her request for $10,000 per month in periodic alimony, the wife testified:

"A. According to-I'll have the house payment, that runs [$]2,000. The power bill is five to six [hundred], just regular utilities. I help my [oldest child] with her tuition at [a college] which is on a payment plan.
"Q. So a portion of the $10,000 you are requesting is for your oldest [child's] college tuition, correct?
"A. Yes.
"Q. How much a month do you pay for your oldest [child's] college tuition?
"A. My dad has been paying it since the divorce so I will try to take it back over. It's at least [$]1,500 a month.
"Q. So out of the $10,000 you are going to pay $1,500 a month for your [oldest child's] college, correct?
"A. Yes.
"Q. What else are you going to pay out of the $10,000?
"A. Our food.
"Q. How much does your food run you each month?
"A. I'm not sure. I have no idea; clothing, whatever my daughters need.
"Q. So a portion of the money, a portion of the [$]10,000 goes for [the oldest child], your 20-year-old daughter's clothing, correct?
"A. Yes.
"Q. Tell the judge how much you spend on [the oldest child] on a monthly basis.
"A. It varies. She has a job. It varies from month to month; [$]200, [$]300. I mean, [$]2,000. I mean some months it varies because it's one month when she is getting ready for [college] It's anywhere from $2,000 to $3,000 sometimes.
"....
"Q. And you want to pay that out of the $10,000 you're to receive in alimony, correct?
"A. Yes, I believe in taking care of my children.
"....
"Q. So we have $1,500 a month goes towards tuition and some months over $3,000 to [the oldest child]. So that's almost $4,500 a month you spend on [the oldest child], correct?
"A. Yes. I'm also going to take over [the oldest child's] insurance and car insurance.
"....
"Q. What else are you going to spend the $10,000 on each month, please, ma'am?
"A. I am going to set up a college fund for [the minor child].
"Q. So a portion of this money is going to pay [the minor child's] college expenses?
"A. Yes.
"Q. Tell me what of the $10,000 is going to be spent on you.
"A. Just for gas and food to survive. I give everything to my girls.
"Q. And how much does gas and food to survive cost you each month?
"A. I'm not sure."

Later, on redirect examination, the wife testified that, if she was not awarded the marital residence, she would need money in order to make a down payment for a house and for mortgage payments, utilities, food, gas, and clothing, but she did not provide a dollar amount for any of those proposed expenses. The wife testified she pays $1,400 per month in credit-card bills, and she had earlier testified to spending approximately $2,600 for a mortgage payment and utilities, which totals $4,000.

It was undisputed that the husband had earned a substantial income in recent years and had provided financially for the family throughout the marriage while the wife cared for the children and the parties' home. The trial court could have found from the evidence that the wife had a need for periodic alimony and that the husband had the ability to pay periodic alimony.

The wife testified, however, that she intended to spend approximately $4,500 per month from her alimony award on the parties' oldest child and that she intended to set up a college fund for the minor child. "The purposes of alimony are to preserve, to the extent possible, the economic status of the parties that existed during the marriage and to provide support for the dependent former spouse." Carter v. Carter, 934 So.2d 406, 409 (Ala. Civ. App. 2005) (citing Kahn v. Kahn, 682 So.2d 1377, 1380 (Ala. Civ. App. 1996), and O'Neal v. O'Neal, 678 So.2d 161, 165 (Ala. Civ. App. 1996) ). As this court has explained, expenses for an adult child are "gratuitous undertakings" that the payor spouse "may not be held responsible for through the payment of alimony to offset those expenditures." Sosebee v. Sosebee, 896 So.2d 557, 562 (Ala. Civ. App. 2004). We have further explained, "[t]o allow a trial court to consider expenditures of that nature in fashioning its alimony award would permit, in essence, a trial court to require a parent to pay the living expenses of an adult child in contravention of the law." Id. See also Ex parte Christopher, 145 So.3d 60, 72 (Ala. 2013) (holding that "the child-custody statute[, § 30-3-1, Ala. Code 1975,] does not authorize a court in a divorce action to require a noncustodial parent to pay educational support for children over the age of 19"). Because the wife unequivocally testified that she would use approximately $4,500 of an alimony award to pay expenses associated with the oldest child's college tuition and living expenses, the alimony award appears to be inconsistent with the purposes for which it can be awarded. See Sosebee, 896 So.2d at 562 ; and Ex parte Christopher, 145 So.3d at 72.

We also note that the wife testified that she needed alimony "[j]ust for gas and food to survive," and she testified to monthly expenses totaling approximately $4,000. Although "there is no rigid standard or mathematical formula on which a trial court must base its determination of alimony and the division of marital assets," Yohey v. Yohey, 890 So.2d 160, 164 (Ala. Civ. App. 2004), the petitioning spouse must introduce evidence to demonstrate "the nature of the financial costs" associated with maintaining the parties' former marital standard of living. Shewbart, 64 So.3d at 1088. The wife did not present evidence demonstrating a need for alimony that would justify a monthly award of $10,000 or $7,000.

Accordingly, we reverse the periodic-alimony award and remand the cause for the trial court to determine "what, if any, amount of alimony might be warranted based upon the wife's expenses and the husband's income." Sosebee, 896 So.2d at 562.

Because we are reversing the periodic-alimony award, we likewise reverse the trial court's division of marital property and award of alimony in gross so that the trial court may reconsider those awards together. See Underwood v. Underwood, 100 So.3d 1115, 1122 (Ala. Civ. App. 2012) (explaining that, because "the issues concerning property division, alimony in gross, and periodic alimony are all interrelated," they must be considered together after a reversal of a judgment pertaining to one of the issues). Therefore, we pretermit discussion of the remainder of the husband's arguments related to the property division and alimony awards.

Conclusion

We reverse the judgment of the trial court, and we remand the cause for proceedings consistent with this opinion. The wife's request for an award of attorney's fees on appeal is denied.

REVERSED AND REMANDED WITH INSTRUCTIONS.

Pittman and Thomas, JJ., concur.

Thompson, P.J., and Moore, J., concur in part and dissent in part, with writings.

THOMPSON, Presiding Judge, concurring in part and dissenting in part.

I dissent to that part of the main opinion reversing the judgment insofar as it orders Carl David Myers ("the husband") to pay the minor child's private-school tuition. As to that issue, I agree with Judge Moore's special writing.

I also dissent to that part of the main opinion that reverses the trial court's award of periodic alimony and remands the cause for a determination of " 'what, if any, amount of alimony might be warranted based upon the wife's expenses and the husband's income.' " 260 So.3d at 67, (quoting Sosebee v. Sosebee, 896 So.2d 557, 562 (Ala. Civ. App. 2004) ). The evidence is undisputed that, during the marriage, the husband paid Kimberly Berry Myers ("the wife") $14,500 each month from which she paid household expenses and otherwise spent as she wished. The husband, a veterinarian, consistently earns at least $118,000 as an annual salary, and he also receives other annual income of approximately $225,000, for a total annual income of at least $343,000. That constitutes income to the husband of approximately $28,580 a month.

The record indicates that the parties enjoyed a comfortable lifestyle during the marriage. In addition to the marital residence, the parties had a condominium at Orange Beach that the wife and the parties' children enjoyed, and the husband had purchased a house on Dauphin Island. The wife testified that the family used to take vacations to the beach and to Disney World. The parties held their older child's 16th birthday at the Grand Hotel. When that child graduated from high school, the parties had a party, to which that child's entire graduating class was invited, at a farm where they could ride horses. It is reasonable to believe that the wife would want to provide the same type of gatherings for the parties' minor child as she becomes older. The husband enjoyed drag racing his own vehicle, which he had outfitted with a special package costing approximately $25,000. He also enjoyed hunting and fishing from a boat he owned with his brothers.

The wife presented evidence demonstrating the standard of living the parties enjoyed during the marriage. The trial court was able to hear the evidence in this matter, to consider the parties' lifestyle and the conduct of the parties during the marriage, and then to determine an equitable amount of alimony for the wife as well as the husband's ability to pay that amount. As the main opinion points out, " '[t]he purposes of alimony are to preserve, to the extent possible, the economic status of the parties that existed during the marriage and to provide support for the dependent former spouse.' " 260 So.3d at 67 (quoting Carter v. Carter, 934 So.2d 406, 409 (Ala. Civ. App. 2005), citing in turn Kahn v. Kahn, 682 So.2d 1377, 1380 (Ala. Civ. App. 1996) ) (emphasis added). Periodic alimony is not intended to simply enable the former dependent spouse to meet his or her proven monthly expenses.

"It has long been the law that both 'the award and [the] amount of periodic alimony are matters which lie within the discretion of the trial court and may be reversed upon an appeal only for a clear abuse of the trial court's judicial discretion.' Scott v. Scott, 460 So.2d 1331, 1332 (Ala. Civ. App. 1984) ; Groenendyke v. Groenendyke, 491 So.2d 959, 961 (Ala. Civ. App. 1986) (same); and Holmes v. Holmes, 409 So.2d 867, 868 (Ala. Civ. App. 1982) (same)."

Knight v. Knight, 226 So.3d 688, 693 (Ala. Civ. App. 2016). Furthermore, a trial court's determination as to alimony and the division of property following an ore tenus presentation of the evidence is presumed correct. Parrish v. Parrish, 617 So.2d 1036 (Ala. Civ. App. 1993). Moreover, I " 'note that there is no rigid standard or mathematical formula on which a trial court must base its determination of alimony and the division of marital assets.' Yohey v. Yohey, 890 So.2d 160, 164 (Ala. Civ. App. 2004)." Stone v. Stone, 26 So.3d 1232, 1236 (Ala. Civ. App. 2009).

I do not believe that this court can say that, in light of the evidence of the parties' 23-year marriage, of the parties' lifestyle during the marriage, and of the parties' conduct during the marriage, the trial court abused its discretion in its award of periodic alimony to the wife.

I concur with the remainder of the opinion.

MOORE, Judge, concurring in part and dissenting in part.

I concur in all aspects of the main opinion except that portion that reverses the trial court's judgment to the extent that it ordered Carl David Myers ("the husband") to pay the private-school tuition of his minor child. As I wrote in J.D.A. v. A.B.A., 142 So.3d 603, 624 (Ala. Civ. App. 2013) (Moore, J., concurring in part, concurring in the result in part, and dissenting in part), when the parents' combined adjusted gross income exceeds the uppermost limit of the child-support schedule, see Appendix to Rule 32, Ala. R. Jud. Admin., as in the present case, Rule 32(C)(4), Ala. R. Jud. Admin., does not apply. In those circumstances, the trial court determines child support based on the amount the children of the marriage need in order to maintain the former marital standard of living and on the ability of the obligor parent to meet those needs.

In the present case, the trial court must have determined that, in addition to the necessaries provided for in its child-support award, the former marital standard of living also included the minor child's attendance at a private school. See J.D.A., 142 So.3d at 624 (Moore, J., concurring in part, concurring in the result in part, and dissenting in part). In my opinion, that part of the judgment awarding private-school tuition does not violate Rule 32(C)(4), which I conclude is inapplicable. Therefore, I dissent from the main opinion insofar as it reverses the trial court's judgment based on the trial court's failure to comply with Rule 32(C)(4). Also, because I reject the argument made by the husband regarding Rule 32(C), I would proceed to address the remaining arguments raised by the husband in his appeal concerning the award of private-school tuition.

      The order became final on December 8, 2016, as explained infra, when the trial court entered an order awarding one-half of the funds in the wife's attorney's trust account to the husband and the other half to the wife's attorney.

      Although we refer to the husband's motion as one to alter, amend, or vacate, we note that the motion was not filed pursuant to Rule 59, Ala. R. Civ. P., because Rule 59 is applicable only to final judgments. Ex parte Troutman Sanders, LLP, 866 So.2d 547, 550 (Ala. 2003).

      Section 30-3-151, Ala. Code 1975, defines five types of child custody:
      "(1) Joint custody. Joint legal custody and joint physical custody.
      "(2) Joint legal custody. Both parents have equal rights and responsibilities for major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training. The court may designate one parent to have sole power to make certain decisions while both parents retain equal rights and responsibilities for other decisions.
      "(3) Joint physical custody. Physical custody is shared by the parents in a way that assures the child frequent and substantial contact with each parent. Joint physical custody does not necessarily mean physical custody of equal durations of time.
      "(4) Sole legal custody. One parent has sole rights and responsibilities to make major decisions concerning the child, including, but not limited to, the education of the child, health care, and religious training.
      "(5) Sole physical custody. One parent has sole physical custody and the other parent has rights of visitation except as otherwise provided by the court."

      We asked the parties to submit letter briefs regarding the applicability of Rule 32(C)(4) to parties whose income exceeds the upper income limit in the child-support schedule and to address whether J.D.A., supra, should be overruled. Both parties to this case agreed that Rule 32(C)(4) applies in this case, in which the parties' income exceeds the upper income limit in the child-support schedule and neither party asked us to overrule J.D.A. on this point.

      We note, however, that trial court, having heard conflicting evidence and observed the demeanor of both parents as they testified, was not required to find that the evidence conclusively established parental alienation, as the husband suggests. See Dunn v. Dunn, 972 So.2d 810, 815 (Ala. Civ. App. 2007) (explaining that the trial court is in the best position to evaluate a witness's demeanor and credibility in resolving conflicting evidence).
      We further note that, to the extent the husband raises a facial constitutional challenge to § 30-3-1, Ala. Code 1975, because he did not first raise that argument and serve the attorney general in the proceedings in the trial court, this court cannot address that argument. See Ex parte Northport Health Serv., Inc., 682 So.2d 52, 55 (Ala. 1996) (quoting Ex parte St. Vincent's Hosp., 652 So.2d 225, 228 (Ala. 1994) ) (" 'A constitutional issue can be reached by [an appellate] Court only when it has been raised by a party at the trial level and the attorney general has been served pursuant to § 6-6-227 and Rule 44, Ala. R. App. P. When a party challenging the constitutionality of a statute fails to serve the attorney general, the trial court has no jurisdiction to decide the constitutional claim, and any judgment regarding that claim is void.' ").


source: Caselaw Access Project

author: BURKE, Judge.

license: Public Domain

text:
    Shaun Glovis SHAPLEY v. STATE of Alabama
    CR-16-1225
    Court of Criminal Appeals of Alabama.
    February 9, 2018
    Shaun Glovis Shapley, pro se.
    Steve Marshall, atty. gen., and James R. Houts, deputy atty. gen., for appellee.
   BURKE, Judge.

Shaun Glovis Shapley appeals the circuit court's denial of his motion to correct a clerical error pursuant to Rule 29, Ala. R. Crim. P. Shapley argued in his motion that he was improperly sentenced because the record indicates that the court and the State erroneously relied on a prior Florida conviction that was based on an uncounseled plea of nolo contendere. Thus, he contends that the Habitual Felony Offenders Act was improperly applied.

As the State argues, Shapley is challenging his sentence; therefore, his motion should have been treated as a Rule 32, Ala. R. Crim. P., postconviction petition rather than as a motion to correct a clerical error. According to the State, Shapley seeks review of his sentencing for a different outcome. "However, 'while [ Rule 60, Ala. R. Civ. P.,] authorizes a court to amend a judgment to correct a clerical error, [it] does not authorize the court to render a different judgment.' Mullins v. Mullins, 770 So.2d 624, 625 (Ala. Civ. App. 2000). 'Although Rule 60(a) states that a court may correct a clerical mistake or an error arising from oversight or omission "at any time," this does not authorize a second review of a judgment.' Cornelius v. Green, 521 So.2d 942, 945 (Ala. 1988)." Woodward v. State, 3 So.3d 941, 949 (Ala. Crim. App. 2008). Rule 29, Ala. R. Crim. P. also "is intended to deal solely with correction of clerical errors and not judicial errors in the rendition of judgments and orders." Committee Comments, Rule 29, Ala. R. Crim. P. " 'The trial court's authority to enter a Rule 60(a) [, Ala. R. Civ. P.,] order or a judgment nunc pro tunc is not unbridled. Merchant v. Merchant, 599 So.2d 1198 (Ala. Civ. App. 1992). It cannot be used to enlarge or modify a judgment or to make a judgment say something other than what was originally said. Michael [v. Michael, 454 So.2d 1035 (Ala. Civ. App. 1984) ].' " Smith v. Smith, 991 So.2d 752, 754 (Ala. Civ. App. 2008), quoting McGiboney v. McGiboney, 679 So.2d 1066, 1068 (Ala. Civ. App. 1995).

Therefore, despite Shapley's motion being styled as a nunc pro tunc motion, it should have been treated as a Rule 32 petition. Ex parte Deramus, 882 So.2d 875 (Ala. 2002) (this Court must treat a filing according to its substance, rather than its style). According to Rule 32.4, Ala. R. Crim. P., "A proceeding under this rule displaces all post-trial remedies except post-trial motions under Rule 24 and appeal. Any other post-conviction petition seeking relief from a conviction or sentence shall be treated as a proceeding under this rule."

Here, the circuit court appears to have considered whether the record should be corrected for a clerical error based on Shapley's claim concerning his Florida conviction rather than whether Shapley was due relief regarding his claim of improper sentencing. Therefore, the circuit court's order in this case is due to be reversed and the case remanded to the circuit court so that Shapley can raise his claim in a properly filed Rule 32 petition and the circuit court can treat it as such.

REVERSED AND REMANDED.

Windom, P.J., and Welch, Kellum, and Joiner, JJ., concur.

      An amendment to a judgment considered a "correction of a clerical error" is "authorized by Rule 60(a), Ala. R. Civ. P., or Rule 29, Ala. R. Crim. P." Woodward v. State, 3 So.3d 941, 949 (Ala. Crim. App. 2008). "Rule 29 is taken directly from Rule 60(a), A. R. Civ. P., which in turn is a variation of Rule 60(a), Fed. R. Civ. P." Committee Comments, Rule 29, Ala. R. Crim. P.

      Shapley was granted indigency status as to his motion.


author: PER CURIAM.

text:
    The FLORIDA BAR, Complainant, v. Jeremy W. ALTERS, Respondent.
    No. SC14-100
    Supreme Court of Florida.
    November 21, 2018
    Joshua E. Doyle, Executive Director, Tallahassee, Florida, William Mulligan, Bar Counsel, Miami, Florida, and Adria E. Quintela, Staff Counsel, The Florida Bar, Sunrise, Florida, for Complainant
    Jamie Leigh Webner and Andrew Scott Berman of Young, Berman, Karpf & Gonzalez, P.A., Miami, Florida, for Respondent
   PER CURIAM.

We have for review a referee's report recommending that Respondent, Jeremy W. Alters, be found guilty of professional misconduct and not disciplined. We have jurisdiction. See art. V, § 15, Fla. Const. As discussed below, after having considered the referee's report, the record in this case, the parties' briefs, and oral arguments, we approve in part the referee's findings of fact. However, we additionally find that Alters engaged in dishonest and deceitful conduct by using one client's funds to pay obligations owed to another client. Therefore, we approve in part and disapprove in part the referee's recommendations as to guilt, and find Alters guilty of two additional rule violations. We also approve the referee's findings in aggravation, and approve in part the findings in mitigation. However, we find that two of the referee's findings in mitigation are unsupported by the record, and disapprove those findings. Last, we disapprove the referee's recommendations as to discipline and costs. We instead disbar Alters and award The Florida Bar its costs, as set forth below. We also direct that no further proceedings in this case shall be held before Circuit Judge Marcia B. Caballero as referee.

BACKGROUND

On December 22, 2011, The Florida Bar (Bar) filed with the Court a Petition for Emergency Suspension alleging that, under Alters' supervision, his law firm made improper transfers from its trust account to its operating account. The Bar alleged that forty-nine such transfers occurred, totaling approximately $2,051,474.32, between September 2009 and December 2010. The Court approved the Bar's Petition for Emergency Suspension and suspended Alters from the practice of law on December 28, 2011. See Fla. Bar v. Alters , 79 So.3d 745 (Fla. 2011) (table). Alters filed a Motion for Dissolution and, following a hearing before a referee, the referee filed with the Court her report finding that there was no basis to conclude that Alters had made or authorized the improper transfers, and that no clients had been injured by the improper transfers. She recommended that Alters be reinstated to the practice of law. The Court approved the referee's findings and recommendation and reinstated Alters to the practice of law on January 25, 2012. See Fla. Bar v. Alters , 81 So.3d 416 (Fla. 2012) (table).

Thereafter, on January 22, 2014, the Bar filed its complaint in this case alleging that, based on the same misconduct alleged in the Petition for Emergency Suspension, Alters had violated six Rules Regulating the Florida Bar (Bar Rules): rules 3-4.3 (Misconduct and Minor Misconduct); 4-1.15 (Safekeeping Property); 4-8.1(a) (a lawyer in connection with a disciplinary matter shall not knowingly make a false statement of material fact); 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation); 5-1.1(a) (Nature of Money or Property Entrusted to Attorney); and 5-1.1(b)

(Application of Trust Funds or Property to Specific Purpose). The complaint did not allege any misconduct occurring subsequent to Alters' January 25, 2012, reinstatement to the practice of law. The matter was referred to the same referee that considered the Petition for Emergency Suspension, and the referee filed her report with the Court.

The referee made the following limited findings of fact in this case. Numerous improper transfers from Alters' firm's trust account to its operating account were made beginning in September 2009. Alters first became aware of these transfers on February 9, 2010. Although Alters eventually learned that there were other improper transfers made, he did not become aware of those until December 2010. He did not report the improper transfers to the Bar or to his partners at the firm, and failed to implement any safeguards to prevent further improper transfers from occurring. Additionally, Alters failed to put into place measures to ensure compliance with the rules governing trust account management.

Alters and a former partner in the firm, who was the firm's managing partner when some of the improper transfers from the trust account occurred, were investigated by the Bar and subject to disciplinary proceedings for this trust account misconduct. However, despite the fact that Alters' former partner was charged with the same misconduct, the Bar cooperated with her and she was permitted to enter into a consent judgment. The former managing partner then provided testimony in this matter against Alters, which the referee found not to be credible. Nevertheless, Alters demonstrated a cooperative attitude throughout his own disciplinary proceedings.

The referee found that, of the twenty-four witnesses called at the disciplinary hearings, only the former comptroller of the firm testified that Alters made, or ordered, the improper transfers; however, the referee found the comptroller's testimony not credible. The comptroller admitted to meticulously altering bank documents to obscure the improper transfers and to "pushing the button" on each improper transfer that was made, though he contended that each transfer was made at Alters' direction. The comptroller provided text messages that he allegedly backed up from his phone to prove that Alters directed him to make the improper transfers. However, the referee concluded that the text messages, which were heavily relied upon by the Bar's auditor in making his report to the Bar and testimony before the referee, were unreliable as a result of the manner in which the comptroller saved them. Further, the referee found that it is undisputed that each of the transfers was made by the comptroller, despite that another witness testified at the final hearing that the firm's former managing partner admitted to having authorized the initial transfers.

Based on these scant findings, the referee recommends that Alters only be found guilty of having violated Bar Rules 4-1.15 (Safekeeping Property) and 5-1.1(b) (Application of Trust Funds or Property to Specific Purpose). The referee recommends that Alters be found not guilty of the four other alleged rule violations. Below we discuss only the two not guilty recommendations challenged by the Bar.

The referee recommends that Alters be found not to have violated Bar Rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) because she found no evidence that Alters engaged in conduct involving dishonesty, fraud, deceit, or misrepresentation. The referee explained that she so found because there was no evidence that Alters created, or directed anyone to create, any false documentation in connection with these proceedings.

The referee also recommends that Alters be found not to have violated Bar Rule 5-1.1(a) (Nature of Money or Property Entrusted to Attorney) for having failed to self-report the improper trust account transfers to the Bar. She also found that Alters' attempt to replenish the trust account with his own funds did not amount to impermissible commingling in violation of Bar Rule 5-1.1(a) in light of a subsequent version of the rule. The referee explains in her report that Alters' actions would have been encouraged under the amendment to the rule, and thus it would be "inequitable" to find him guilty of having violated the rule.

In determining the recommended sanction, the referee considered Alters' personal history, prior discipline, and the existence of aggravating and mitigating factors pursuant to the Florida Standards for Imposing Lawyer Sanctions (Standards). The referee found two aggravating factors in this case: Standards (1) 9.22(d) (multiple offenses); and (2) 9.22(i) (substantial experience in the practice of law). She found ten mitigating factors: Standards (1) 9.32(a) (absence of a prior disciplinary record); (2) 9.32(b) (absence of a dishonest or selfish motive); (3) 9.32(c) (personal or emotional problems); (4) 9.32(d) (timely good faith effort to make restitution or to rectify consequences of his misconduct); (5) 9.32(e) (full and free disclosure to disciplinary board or cooperative attitude toward proceedings); (6) 9.32(g) (character or reputation); (7) 9.32(h) (physical or mental disability or impairment ); (8) 9.32(i) (unreasonable delay in disciplinary proceedings provided that the respondent did not substantially contribute to the delay and provided further that the respondent has demonstrated specific prejudice resulting from that delay); (9) 9.32(k) (imposition of other penalties or sanctions); and (10) 9.32(l ) (remorse).

Based on her findings of fact, recommendations as to guilt, and findings in aggravation and mitigation, the referee recommends that Alters not be further sanctioned. The referee explains that her recommendation is made in light of the

manner in which this case was prosecuted in the media even before the complaint was filed ...; the length of time it took to bring the complaint formally against [Alters] ...; the impact that this bar complaint has had on his legal standing and reputation; and the disproportionate treatment in the handling of the bar complaint against [Alters' former managing partner] and [Alters].

Report of Referee at 67-68. The referee suggests that, while the two rule violations that she recommends Alters be found to have committed may warrant a public reprimand or suspension, Alters "has already been subjected to a 5 year involuntary suspension," and suffered the effects of a public reprimand through negative media attention received as a result of the Bar's apparent violation of its own confidentiality rules.

Because the referee found that the Bar proved only two of the six alleged Bar Rule violations, she recommends that Alters be assessed the Bar's administrative costs in the amount of $1250, and that the Bar be assessed Alters' costs for his defense against the charges concerning his authorization and knowledge of the improper transfers, in the amount of $143,913.35.

Shortly after oral argument was held in this case, the Court issued an order on its own motion suspending Alters from the practice of law until further order of the Court. See Fla. Bar v. Alters , No. SC14-100, 2018 WL 2304233 (Fla. May 21, 2018).

The Bar has now filed a notice of intent to seek review of the report of referee, challenging an evidentiary ruling of the referee, the referee's findings of fact and recommendations as to guilt, findings in aggravation and mitigation, recommended sanction, and recommended imposition of costs. Ultimately, the Bar asks the Court to disbar Alters and award its costs incurred in connection with the case. We address each of these in turn below.

ANALYSIS

Referee's Exclusion of Evidence

The Bar argues that the referee erred by excluding evidence regarding Alters' tax status with the Internal Revenue Service (IRS). The record demonstrates that much of Alters' defense in this case centered on his efforts subsequent to February 9, 2010, to keep the firm operational and replenish the firm's trust account. Part of his efforts involved securing a co-counsel agreement with Searcy Denney Scarola Barnhart and Shipley, P.A. (the Searcy firm). Through discovery the Bar learned that, in securing the co-counsel agreement, Alters affirmatively misrepresented his personal tax status to the Searcy firm. Alters represented to the Searcy firm that he had no outstanding tax obligations, when he owed substantial sums in unpaid taxes to the IRS at the time. The Bar sought to introduce evidence of Alters' misrepresentation, arguing that it was material because Alters' character trait of dishonesty was at issue since he was charged with having violated Bar Rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). The Bar argued that Alters' dishonest behavior in obtaining financial assistance from outside sources allowed him to keep the firm operational.

Alters filed a motion to exclude the evidence and, at a hearing on the motion, argued that the evidence was irrelevant and constituted inadmissible character evidence. The referee concluded that Alters' personal tax status was irrelevant to the allegations in the Bar's complaint. Accordingly, she prohibited the Bar from making any reference to Alters' personal tax status at the final hearing.

The Court reviews referees' actions regarding the admissibility of evidence in Bar discipline cases for an abuse of discretion. See Fla. Bar v. Hollander , 607 So.2d 412, 414 (Fla. 1992) ; Fla. Bar v. Rendina , 583 So.2d 314, 315 (Fla. 1991).

Additionally, because "bar disciplinary proceedings are quasi-judicial rather than civil or criminal, the referee is not bound by technical rules of evidence." Fla. Bar v. Rotstein , 835 So.2d 241, 244 (Fla. 2002) (quoting Rendina , 583 So.2d at 315 ); see Fla. Bar v. Tobkin , 944 So.2d 219, 224 (Fla. 2006).

We find that the referee abused her discretion by excluding evidence relating to Alters' personal tax status because such evidence was relevant to the allegations in the Bar's complaint. The Bar's complaint clearly alleged that Alters misappropriated trust account funds, falsely certified trust account compliance to the Bar, and violated Bar Rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). Dishonesty, fraud, deceit, and misrepresentation are each alternative essential elements of a violation of Bar Rule 4-8.4(c). Part of Alters' defense in this case involved his attempts to obtain financial assistance for his firm shortly after having discovered the improper transfers from the trust account. Just as Alters' attempts to stabilize the firm's financial situation in the midst of the improper transfers is relevant to these proceedings, so is evidence of Alters' misrepresentations regarding his tax liability made in the course of those attempts. Accordingly, we find that the referee abused her discretion in excluding the evidence.

Findings of Fact and Rule Violations

The Bar next challenges the referee's recommendations that Alters be found not guilty of having violated Bar Rules 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation) and 5-1.1(a) (Nature of Money or Property Entrusted to Attorney), and her failure to make factual findings to support those violations despite there being unrefuted evidence thereof in the record. To the extent that the Bar challenges the referee's findings of fact, this Court's review of such matters is limited, and if a referee's findings of fact are supported by competent, substantial evidence in the record, this Court will not reweigh the evidence and substitute its judgment for that of the referee. Fla. Bar v. Frederick , 756 So.2d 79, 86 (Fla. 2000) ; see Fla. Bar v. Jordan , 705 So.2d 1387, 1390 (Fla. 1998). However, where a referee's failure to make a particular factual finding is clearly erroneous in light of the evidence before her, this Court can make such a finding. See, e.g. , Fla. Bar v. Sweeney , 730 So.2d 1269, 1271 (Fla. 1998) ("[W]e find that the referee's factual finding that the Bar failed to prove an intent to defraud is clearly erroneous.").

Moreover, to the extent the Bar challenges the referee's recommendations as to guilt, this Court has repeatedly stated that the referee's factual findings must be sufficient under the applicable rules to support the recommendations regarding guilt. See Fla. Bar v. Shoureas , 913 So.2d 554, 557-58 (Fla. 2005) ; Fla. Bar v. Spear , 887 So.2d 1242, 1245 (Fla. 2004). The party challenging the referee's findings of fact and recommendations as to guilt has the burden to demonstrate that the record is devoid of evidence supporting, or clearly contradicts, the recommendations. Fla. Bar v. Germain , 957 So.2d 613, 620 (Fla. 2007) ; Fla. Bar v. Spann , 682 So.2d 1070, 1073 (Fla. 1996).

Before addressing the referee's challenged recommendations as to guilt, we note that the referee's report in this case is inadequate. We do not question that the referee put significant time and effort into preparing the report, particularly in summarizing the testimony of each of the witnesses at the final hearing. However, the referee has drawn only the most basic conclusions from the summarized testimony, and oftentimes has failed to make any findings regarding undisputed evidence in the case. This fails to comply with the basic requirements for the contents of the referee's report contained in the Rules Regulating the Florida Bar. See R. Regulating Fla. Bar 3-7.6(m)(1)(A) (stating that a referee's report shall include "a finding of fact as to each item of misconduct of which the respondent is charged"). In all, the referee's findings of fact span less than four pages of the 71-page, mostly single-spaced report. It is inconceivable that the facts of such a complicated case, which has taken years to litigate and the record of which spans thousands of pages, could be reduced to four pages. Thus, we find the referee's findings of fact to be incomplete.

Turning to the referee's findings and recommendations in this case, the record clearly supports a finding that Alters violated Bar Rule 4-8.4(c), and the referee's recommendation to the contrary is unsupported. The record evidence demonstrates that Alters engaged in dishonest and deceitful conduct in violation of Bar Rule 4-8.4(c) by using one client's funds to pay obligations owed to another client and failing to implement reasonable remedial measures once he was on notice of the trust account shortages. The referee's recommendation to the contrary because she found that Alters did not create, or direct anyone to create, false documents in connection with this proceeding is erroneous because Bar Rule 4-8.4(c)'s application is not limited to creating false documents.

There is no question in this case that Alters' conduct in managing the trust account was negligent at best. There is unrefuted evidence that at least ten improper transfers from the firm's trust account were applied to cover operating account checks issued to Alters and deposited into his personal bank account, for which there would have been insufficient funds in the operating account without the improper transfers. Inexplicably, the referee made no findings regarding these transfers. The referee also failed to make any findings concerning the improper transfers that occurred between July and October 2010, when Alters' former managing partner was no longer with the firm and Alters himself was responsible for managing the trust account. Additionally, the referee failed to make findings concerning a December 2010 transaction where Alters used one client's funds, without that client's consent, to pay monies owed to another client. There is no dispute that Alters was the managing partner in charge of the trust account at the time of the December 2010 improper transfer, there is no evidence in the record rebutting the conclusion that only Alters could have issued the December 2010 check, and Alters does not deny having made the improper transfer. We find the referee's failure to make any findings in these regards to be clearly erroneous in light of the undisputed record evidence.

Although Alters argues that intent is required for a violation of Bar Rule 4-8.4(c), this Court's jurisprudence is clear that "[k]nowingly or negligently engaging in sloppy bookkeeping amounts to intent under rule 4-8.4(c)." Fla. Bar v. Riggs , 944 So.2d 167, 171 (Fla. 2006) (suspending attorney for three years after he knowingly assigned his trust account responsibilities to his paralegal and then failed to manage her activities); Fla. Bar v. Smith , 866 So.2d 41, 46 (Fla. 2004) (holding that "extraordinary sloppiness and negligence" satisfy the intent element for finding a violation of rule 4-8.4(c) ); Fla. Bar v. Fredericks , 731 So.2d 1249, 1252 (Fla. 1999) (holding that the determinative factor to prove a rule 4-8.4(c) violation was whether the attorney deliberately or knowingly engaged in the activity in question, rather than the motive behind the attorney's action).

As the person in charge of managing the trust account and authorizing the transfers, it was Alters' responsibility to know from where the funds were coming. See generally Fla. Bar v. Rousso , 117 So.3d 756 (Fla. 2013). Alters admitted that he knew since February 9, 2010, of the existence of improper transfers in the trust account. Accordingly, regardless of whether Alters actually knew from which client the funds were taken, the record demonstrates that Alters knew or should have known that there was a strong likelihood that client funds were being misappropriated. Having received funds from a client, it is an attorney's obligation to ensure that those funds are properly preserved and used only for the purposes intended by the client, and not for any other unauthorized purpose. See R. Regulating Fla. Bar 5-1.1(b) ; Fla. Bar v. Miller , 548 So.2d 219, 220 (Fla. 1989).

Further, the referee specifically found that Alters failed to notify any other partners at the firm or the Bar after he discovered several of the improper transfers. While Alters attempts to blame his former managing partner and the firm's comptroller for the trust account deficit, the record demonstrates, and the referee's limited factual findings confirm, that he ultimately turned over responsibility to the former managing partner at a time he knew the firm was experiencing severe financial difficulties. He subsequently left her in charge of the trust account. Alters neither hired an outside consultant nor reported the trust account issues to the Bar, even after learning of the trust account shortages and being advised by counsel of measures the firm needed to implement to prevent future improper transfers. As a result of Alters' choices, and the knowledge he possessed at the time he made those choices, we find that he ultimately bears responsibility for the improper transfers and misappropriation of client funds. Accordingly, in light of the undisputed record evidence, we conclude that the referee erred in failing to find that Alters misused client funds and we now so find. Thus, we find Alters guilty of having violated Bar Rule 4-8.4(c).

We also disapprove the referee's recommendation that Alters be found not to have violated Bar Rule 5-1.1(a) (Nature of Money or Property Entrusted to Attorney), and now find him guilty of having violated that rule. The referee recommends that Alters be found not to have violated Bar Rule 5-1.1(a) because the version of Bar Rule 5-1.1(a) in effect at the time of his misconduct did not require Alters to report the improper transfers from the trust account to the Bar. The referee further found that the funds Alters put into the trust account did not amount to commingling in violation of the rule because the rule was later amended to encourage attorneys to replenish trust account shortages with their own funds. We disagree that Alters' actions did not amount to impermissible commingling under the Bar Rules.

The rule as amended after Alters' misconduct is irrelevant. The rule to be applied is the rule in effect at the time of the alleged violations. Fla. Bar v. Calvo , 630 So.2d 548, 550 (Fla. 1993). Accordingly, we conclude that the testimony, evidence, and the referee's findings all plainly demonstrate that Alters deposited personal funds and funds from loans and a co-counsel agreement into the firm's trust account in violation of the applicable version of Bar Rule 5-1.1(a). Such a conclusion is consistent with this Court's prior holdings. See Rousso , 117 So.3d at 764 (finding attorneys guilty of having violated Bar Rule 5-1.1 for depositing their own money into their firm's trust account to cover account shortages resulting from an employee's theft of trust property, despite the referee's recommendation to the contrary finding that the attorneys' "sense of personal honor" to correct the shortages justified the commingling); Fla. Bar v. Brownstein , 953 So.2d 502 (Fla. 2007) (finding attorney guilty of having violated Bar Rule 5-1.1(a) for depositing funds from his operating account into his trust account after he bounced several checks from his trust account); Fla. Bar v. Cox , 718 So.2d 788 (Fla. 1998) (finding attorney guilty of having violated Bar Rule 5-1.1(a) for depositing funds he received from a business loan into his trust account).

Findings in Aggravation and Mitigation

Because we find that Alters is guilty of having violated Bar Rules 4-1.15, 4-8.4(c), 5-1.1(a), and 5-1.1(b), we turn now to discipline. "Like other factual findings, a referee's findings in mitigation and aggravation carry a presumption of correctness and will be upheld unless clearly erroneous or without support in the record." Germain , 957 So.2d at 621. As discussed herein, we disapprove as unsupported two of the referee's findings in mitigation: (1) Standard 9.32(b) (absence of a dishonest or selfish motive); and (2) Standard 9.32(i) (unreasonable delay in disciplinary proceeding provided that the respondent did not substantially contribute to the delay and provided further that the respondent has demonstrated specific prejudice resulting from that delay).

First, we disapprove the referee's finding in mitigation of absence of a dishonest or selfish motive pursuant to Standard 9.32(b). Alters acknowledges that he knew of the existence of improper trust account transfers since February 9, 2010. The record demonstrates that Alters, despite knowing of the improper transfers, failed to actively manage the trust account or implement proper accounting procedures to ensure that client property held in trust was not improperly transferred to the firm's operating account. Instead, through the improper transfers, Alters replenished the firm's operating account and kept the firm afloat despite severe financial troubles. The record also demonstrates that during this time, and for a year after he became aware of the improper transfers, Alters also received substantial amounts of money from the firm and deposited it into his personal bank account-in the amount of over $1,000,000 from February 2010 to February 2011 alone.

Although Alters allegedly did not know that trust funds were improperly flowing into his personal account, he remains responsible in light of his failure to take meaningful steps to address the trust account issues. Moreover, though Alters disputed signing the checks, the Bar's auditor testified at the final hearing before the referee that "the funds went into [Alters']

personal account. For this reason, [the Bar's auditor] interpreted all of the checks as legitimate checks [and] ... under these circumstances [Alters] had derived a benefit from the improper transfers." Although the referee made no finding in this regard, the Court finds this unrefuted testimony persuasive. Alters' conduct clearly exhibits a selfish motive. See, e.g. , Fla. Bar v. Tauler , 775 So.2d 944 (Fla. 2000) (approving referee's finding in aggravation of selfish motive when attorney issued checks from the firm's trust account to satisfy personal and business obligations, even though attorney replenished the trust account and disbursed the funds to the clients before the Bar initiated its investigation). We therefore disapprove the referee's finding in mitigation of an absence of a dishonest or selfish motive as clearly erroneous and without support in the record.

We also disapprove the referee's finding in mitigation of an unreasonable delay in the disciplinary proceeding pursuant to Standard 9.32(i). The record demonstrates that, in total, thirty-eight months of delay occurred as a result of the time the Bar took to file its complaint, the referee's development of the report, and resolution of a petition for writ of certiorari filed with this Court by Alters' former managing partner. However, Standard 9.32(i) requires that, in addition to demonstrating that disciplinary proceedings were "unreasonabl[y] delay[ed]," a respondent must prove that he "did not substantially contribute to the delay and ... has demonstrated specific prejudice resulting from that delay." See Fla. Bar v. Lehrman , 485 So.2d 1276, 1278 (Fla. 1986) ("[T]he respondent here has failed to demonstrate any discernible prejudice resulting from this delay. Without such a showing, we do not feel the delay warrants finding the report invalid."). Because the referee made no finding in this regard and our review of the record shows that Alters failed to demonstrate before the referee any specific prejudice he suffered resulting from the delay, we hereby find that Standard 9.32(i) does not apply in this case. See, e.g. , Fla. Bar v. Brakefield , 679 So.2d 766, 770 (Fla. 1996) (finding that attorney failed to present evidence of prejudice caused by any alleged delay in the disciplinary proceedings); Lehrman , 485 So.2d at 1278. Accordingly, we disapprove as unsupported and clearly erroneous the referee's finding in mitigation of unreasonable delay in Alters' disciplinary proceedings.

Sanction

The Bar next challenges the referee's recommendation that Alters receive no discipline. In reviewing a referee's recommendation as to discipline, the Court's scope of review is broader than that afforded to the referee's findings of fact, because it is ultimately the Court's responsibility to determine the appropriate discipline. Fla. Bar v. Anderson , 538 So.2d 852, 854 (Fla. 1989) ; see art. V, § 15, Fla. Const. However, the Court will generally not second-guess the referee's recommended discipline as long as it has a reasonable basis in existing case law and the Florida Standards for Imposing Lawyer Sanctions. Fla. Bar v. De La Torre , 994 So.2d 1032, 1036 (Fla. 2008).

We disapprove the referee's recommendation to not further discipline Alters as entirely without support in her findings, this Court's case law, the Standards, or the Bar Rules. In fact, the referee recommends that "no further sanctions are warranted" despite finding two substantial Bar Rule violations; inexplicably she fails to cite any authority supporting her recommendation. Considering the referee's recommendations as to guilt that we approve, the referee's findings in aggravation and mitigation that we approve, as well as our additional findings that Alters misappropriated client funds, violated Bar Rules 4-8.4(c) and 5-1.1(a), and that the mitigating factors in Standards 9.32(b) (absence of dishonest or selfish motive) and 9.32(i) (unreasonable delay in the disciplinary proceedings) do not apply in this case, we conclude that Alters must be disbarred.

The Court has long held that the misuse of client funds "is one of the most serious offenses a lawyer can commit." Fla. Bar v. Schiller , 537 So.2d 992, 993 (Fla. 1989) (citing Fla. Bar v. Newman , 513 So.2d 656 (Fla. 1987), and Fla. Bar v. Breed , 378 So.2d 783 (Fla. 1979) ). Disbarment is the presumptively appropriate sanction, under both the Standards and existing case law, when a lawyer intentionally misappropriates trust funds. Fla. Stds. Imposing Law. Sancs. 4.11 ("Disbarment is appropriate when a lawyer intentionally or knowingly converts client property regardless of injury or potential injury."); see Fla. Bar v. Valentine-Miller , 974 So.2d 333, 338 (Fla. 2008) ; Brownstein , 953 So.2d at 511. Indeed, the overwhelming majority of cases involving the misuse of trust funds has resulted in disbarment, regardless of mitigation. See Valentine-Miller , 974 So.2d at 338-39 (listing cases in which the Court "has disbarred attorneys who misappropriated funds or abandoned their clients, despite the referee's findings of substance abuse and rehabilitation, concluding that the mitigation was insufficient to overcome the seriousness of the misconduct"); Fla. Bar v. Spear , 887 So.2d 1242, 1247 (Fla. 2004) (citing Fla. Bar v. Massari , 832 So.2d 701, 706 (Fla. 2002) ); Fla. Bar v. Shanzer , 572 So.2d 1382, 1383 (Fla. 1991) (listing examples of cases in which the Court disbarred attorneys for misappropriation of funds notwithstanding the mitigating evidence presented in those cases).

Alters urges this Court to approve the referee's recommendation that disbarment is inappropriate in this case and that he not be disciplined for his misconduct. Essentially, he argues for leniency in the face of the presumption of disbarment for misappropriation of client funds. To be sure, in limited instances a respondent may overcome the presumption; but only upon a showing of substantial mitigating circumstances that demonstrate that disbarment would be unfair and inappropriate in a particular case. However, these cases are exceptional and generally involve relatively isolated instances of misconduct made in the face of dire circumstances. See, e.g. , Fla. Bar v. McFall , 863 So.2d 303 (Fla. 2003) (imposing a three-year suspension followed by a three-year probation for attorney who misappropriated a client's funds over a three-month period because he suffered impaired judgment due to medications and mental health); Tauler , 775 So.2d 944 (imposing a three-year suspension followed by a one-year probation for attorney who misappropriated funds over a five-month period due to personal and emotional distress caused by her husband's severe health problems and personal bankruptcy). Such leniency is not warranted in a case involving an attorney's systemic failure to protect property held in trust for his clients.

Alters also argues that he did not have the intent requisite for the Court to disbar him for the improper trust account transfers. However, the Court has disbarred attorneys even for gross negligence in maintaining a trust account. For instance, in Florida Bar v. Rousso the Court disbarred two attorneys for gross negligence in maintaining their trust account.

117 So.3d at 767. The attorneys in that case claimed that their nonlawyer bookkeeper embezzled more than $4,000,000 from the firm's trust account. Id. at 759-60. The referee in the case found no clear and convincing evidence that the attorneys intentionally misappropriated the money or received any direct benefit from the missing funds. Id. at 760. Nevertheless, on review the Court found that the attorneys engaged in several ethical violations, including failing to meet and maintain minimum trust accounting requirements, commingling personal and client funds, and creating a conflict of interest by borrowing money from a client to cover a portion of the trust account shortage. Id. at 761-62. The Court concluded that the attorneys had "abandoned their professional duty to safeguard their clients' funds." Id. at 767. Given their egregious misconduct, the Court held that disbarment was appropriate. Id.

Similarly, in Florida Bar v. Johnson , 132 So.3d 32, 34-35 (Fla. 2013), the Court found that Johnson improperly delegated significant responsibilities with regard to his trust account to an inadequately supervised nonlawyer employee. The employee stole money from Johnson's operating account and used funds from the trust account to cover up the theft, ultimately resulting in two client checks being returned for insufficient funds. Id. In light of the specific circumstances of the case, namely the referee's finding that Johnson's employee had, without Johnson's knowledge, stolen money from the firm, the Court found there to be insufficient evidence that Johnson intentionally misappropriated client money to support a violation of Bar Rule 4-8.4(c). Id. at 37. The Court grappled with whether Johnson's misappropriation of client trust funds called for a lengthy rehabilitative suspension or disbarment. Id. at 38-40. Ultimately, the Court held that his gross negligence-when considered together with other conduct, including holding himself out as an attorney in violation of the Court's order imposing an emergency suspension, which led to the filing of two contempt petitions-warranted disbarment. Id. at 40.

Considering Rousso and Johnson , Alters' Bar Rule violations, and the aggravating and mitigating factors, we conclude that Alters' actions warrant disbarment. After Alters discovered that client funds were misappropriated under his former partner's direction, he continued to leave that person in charge of the trust account without putting in place any safeguards to prevent further misappropriation. Further, client funds continued to be misappropriated under Alters' direction even after the former partner left the firm. Because this case is not one in which an employee stole funds from an unwitting attorney, it involves more severe conduct than that at issue in Johnson . Unlike Johnson , there is no finding by the referee in this case that Alters' firm's trust funds were stolen without Alters' knowledge. To the contrary, improper transfers continued to occur even after Alters became aware of them. He could have stopped further improper transfers from occurring by taking active control of the trust account himself and putting in place procedures that would prevent further improper transfers; the record is clear that Alters chose to do neither, and that improper transfers continued to occur under his supervision. Like the attorneys in Rousso , Alters entirely abandoned his duty to protect client funds held in trust. This Court will not allow attorneys to abdicate their responsibility to protect clients' property and enjoy the privilege of practicing law. Therefore, Alters must be disbarred.

Costs

Last, the Bar challenges the referee's recommendation as to costs. The Court has the final discretionary authority to assess costs in Bar proceedings. See Fla. Bar re Dunagan , 775 So.2d 959, 962 (Fla. 2000) (citing Fla. Bar v. Lechtner , 666 So.2d 892, 894 (Fla. 1996) ). The Court, as a matter of policy, may levy against a respondent the costs incurred by the Bar in prosecuting the misconduct he or she has committed. Lechtner , 666 So.2d at 894 ; see Fla. Bar v. Miele , 605 So.2d 866, 868 (Fla. 1992) ; Fla. Bar v. Gold , 526 So.2d 51, 52 (Fla. 1988).

The referee in this case recommended that the Bar be awarded only its administrative costs of $1250, and that Alters be awarded his costs in the amount of $143,913.35, despite recommending that Alters be found guilty of having violated two Bar Rules. However, all costs sought by the Bar in this case are specifically allowed by Bar Rule 3-7.6(q), which states that the Bar may recover, among other costs, investigative costs, court reporter costs, witness costs, and an administrative fee. Further, Alters' extensive misconduct and failure to have complied with the trust accounting rules warranted the Bar's equally extensive computer forensics investigation, audit, witness depositions, and associated costs; ultimately these amount to $305,360.03. In light of the referee's recommendations as to guilt that we approve, and the additional rule violations that we find, we see no reason the Bar should be made to bear these costs. Accordingly, we find that the referee abused her discretion; we disapprove the referee's recommended award of costs, award the Bar its costs of $305,360.03, and award Alters nothing.

CONCLUSION

We find that the referee abused her discretion by excluding relevant evidence regarding Alters' personal tax status with the IRS. The referee also erred in failing to find that Alters misused client funds. We approve the referee's recommendations that Alters be found guilty of having violated Bar Rules 4-1.15 (Safekeeping Property) and 5-1.1(b) (Application of Trust Funds or Property to Specific Purpose). We also approve the referee's recommendations that Alters be found not to have violated Bar Rule 3-4.3 (Misconduct and Minor Misconduct) and 4-8.1(a) (a lawyer in connection with a disciplinary matter shall not knowingly make a false statement of material fact). However, because we now find that Alters misused client funds, we disapprove the referee's recommendation that Alters be found not to have violated Bar Rule 4-8.4(c) (a lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation). Moreover, we disapprove the referee's recommendation that Alters be found not to have violated Bar Rule 5-1.1(a) (Nature of Money or Property Entrusted to Attorney). Accordingly, we now find Alters guilty of having violated Bar Rules 4-8.4(c) and 5-1.1(a).

We approve the referee's findings in aggravation. However, we disapprove the findings in mitigation of absence of a dishonest or selfish motive pursuant to Standard 9.32(b) and unreasonable delay in the disciplinary proceedings pursuant to Standard 9.32(i), as they are unsupported by evidence in the record. We approve the referee's remaining findings in mitigation.

Based on these findings of fact as to guilt and in aggravation and mitigation, we disapprove the referee's recommendation that Alters not be disciplined. In light of the seriousness of his conduct, Respondent Jeremy W. Alters is hereby disbarred. Because Alters is currently suspended, the disbarment is effective immediately. Alters shall fully comply with Rule Regulating the Florida Bar 3-5.1(h).

Finally, we disapprove the referee's recommendation as to costs. Judgment is entered for The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2300, for recovery of costs from Jeremy W. Alters in the amount of $305,360.03, for which sum let execution issue.

No further proceedings that may be necessary in this case shall be held before Circuit Judge Marcia B. Caballero as referee.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and LAWSON, JJ., concur.

      In In re Amendments to Rules Regulating the Florida Bar (Biennial Petition) , 167 So.3d 412 (Fla. 2015), the Court amended Bar Rule 5-1.1(a) to add subdivision (1)(B). That subdivision provides that "[a] lawyer may deposit the lawyer's own funds into trust to replenish a shortage in the lawyer's trust account," that such replenishments must be no more than any trust account shortage, and that the shortage and replenishment must be reported to the Bar immediately. 167 So.3d at 439.

      It is not clear why the referee found that Alters had been involuntarily suspended for five years. He was suspended in Florida Bar v. Alters , 79 So.3d 745 (Fla. 2011) (table), from December 28, 2011, to January 25, 2012. However, he was not suspended in this case until May 21, 2018. See Fla. Bar v. Alters , No. SC14-100, 2018 WL 2304233 (Fla. May 21, 2018).

      After the Bar inquiry was filed against Alters in September 2011, the Bar confirmed to Daily Business Review that Alters was being investigated for possible trust account misappropriation. Daily Business Review published several stories that Alters claims cost him a lead counsel position and over $30,000,000 in fees. Alters moved to dismiss the charges against him due to the alleged breach of confidentiality by the Bar; his motion was denied by the referee.

      Without further discussion, we approve the referee's undisputed recommendations that Alters be found to have violated Bar Rules 4-1.15 (Safekeeping Property) and 5-1.1(b) (Application of Trust Funds or Property to Specific Purpose), and that he be found not to have violated Bar Rules 3-4.3 (Misconduct and Minor Misconduct) and 4-8.1(a) (a lawyer in connection with a disciplinary matter shall not knowingly make a false statement of material fact).

      Without further discussion we approve the referee's findings in aggravation as well as the remaining findings in mitigation.

      The Bar's auditor testified at the final hearing before the referee that in addition to funds disbursed directly to Alters, he had improperly used trust funds to cover firm expenses and overdrafts, as well as for personal expenses such as Miami Heat tickets.

      The petition was filed with the Court in this case on April 15, 2015. All parties agreed not to proceed pending the disposition of that petition. The petition was denied on September 25, 2015. See Fla. Bar v. Alters , No. SC14-100 (Fla. order issued Sept. 25, 2015).