author: TORPY, J. COHEN, J.,

text:
    James Earl JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1380.
    District Court of Appeal of Florida, Fifth District.
    April 30, 2010.
    Rehearing Denied June 4, 2010.

      James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   TORPY, J.

The sole issue framed for our review is whether the trial court erred in concluding that there existed an objectively reasonable basis to stop the vehicle in which Appellant was a passenger. Our disposition of this issue turns on whether police officers had “reasonable suspicion” to believe that the car contained a person who was the subject of outstanding arrest warrants, justifying the detention. Concluding that reasonable suspicion did support the stop, we affirm.

In early July 2008, Donald Evans, who had numerous outstanding arrest warrants, eluded Marion County deputies following a high speed pursuit. A week later, the Marion County Sheriffs Office received an anonymous tip through “crime stoppers” that Evans was staying at a house near Vanguard High School. Sheriffs Deputy Collins then contacted Courtney Wilson, Evans’ bail bondsman, who Collins knew also desired to apprehend Evans. Wilson related that he had driven by the same house earlier in the day and “thought he had seen [Evans] out in front of the house.” Wilson agreed to meet officers in the area of the house to assist them in attempting to find Evans. Once Wilson arrived in the area, it was agreed that he would watch the house and notify officers if he saw Evans.

Around midnight, Wilson saw a car pull up and stop at the house. Several people congregated around the car, then got in it and hurriedly drove away. Deputy Collins testified that Wilson informed him that Evans was a passenger in the car. Wilson denied telling Deputy Collins that Evans was in the car, but acknowledged that he informed Sheriffs deputies that the car was leaving at an accelerated rate of speed and that they should stop the car. In any event, the deputies stopped the car and ordered the occupants out at gunpoint. Evans was not among the occupants. Appellant was one of the occupants in the car. During the stop, deputies located a gun beneath Appellant’s seat and arrested him for possession of a firearm by a convicted felon. The trial court did not specifically resolve the apparent conflict in the testimony regarding what Wilson had told the deputies. It did find, however, that the stop was not the product of “whim, caprice or desire to harass all drivers leaving Evans’ house.” It concluded that, under the totality of the circumstances, the police officers acted reasonably in stopping the vehicle. We agree.

Reasonable suspicion is an amorphous legal concept. Ornelas v. United States, 517 U.S. 690, 695-96, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The courts define it not by what it is, but by what it isn’t. It’s something more than a “mere hunch,” but “considerably less” than a preponderance of the evidence. Wallace v. State, 8 So.3d 492, 494-95 (Fla. 5th DCA 2009) (quoting Ornelas, 517 U.S. at 695-96, 116 S.Ct. 1657). A “mere hunch” is a suspicion based on bare intuition alone without supporting facts. Id.

Whether Wilson had a reasonable belief that Evans was in the car is not the question here. The question is whether the deputies had a reasonable belief that Evans was in the car. Under these circumstances, we conclude that they did. The deputies were looking for Evans, a wanted felon. They believed he might be found at a particular house, based on information supplied by both an anonymous tip and Wilson. They set up surveillance for the express purpose of locating him. Wilson, who was familiar with Evans, agreed to watch for him and notify the deputies of Evans’ presence. When Wilson advised them to stop a particular car that was leaving the area hurriedly, it was reasonable for the deputies to believe that Evans was in the car, whether Wilson actually saw Evans or not.

AFFIRMED.

EVANDER, J., concurs.

COHEN, J., dissents with opinion.

COHEN, J.,

dissenting.

I would reverse the trial court’s order denying Appellant’s dispositive motion to suppress because the deputies lacked a well-founded suspicion of criminal activity to justify the stop.

The difficulty with this case stems from the trial court’s failure to make a finding as to whose testimony it found believable. What we are left with are the findings made in the written order denying the motion to dismiss, which reflect that while Courtney Wilson might have seen Donald Evans at the home earlier in the day, he did not see him at the home while he conducted surveillance. Wilson merely observed a small red sedan stop at the home where Evans was believed to be staying. There was no evidence Evans was in the sedan as it approached the home, and although he observed people congregate around the sedan, Wilson “could not tell if anyone got in the vehicle but did see the vehicle leave the residence at a high rate of speed.” Based upon this scant amount of information, Wilson communicated with waiting deputies to stop the sedan.

Rather than address the conflicting testimony of Deputy Collins and Wilson, the trial court relied upon the fact that law enforcement had received an anonymous tip that placed Evans in the area, he had recently eluded the deputies, had outstanding arrest warrants, and a car was seen leaving the house at a high rate of speed. The majority believes this sufficient to justify the stop of the vehicle. I disagree.

The trial court relied upon State v. Lopez, 923 So.2d 584 (Fla. 5th DCA 2006), to justify the stop of the vehicle. When reviewing a trial court’s ruling on a motion to suppress, this court employs a mixed standard of review. The trial court’s findings of historical fact are accorded a presumption of correctness, unless they are not supported by competent, substantial evidence. Connor v. State, 803 So.2d 598, 608 (Fla.2001); McMaster v. State, 780 So.2d 1026, 1028 (Fla. 5th DCA 2001). However, the trial court’s application of the law or its ruling on issues of mixed questions of law and fact are reviewed de novo. Id. An officer’s mere suspicion or hunch that criminal activity is afoot is insufficient to uphold an investigatory stop. Lopez, 923 So.2d at 584. Rather, the police must have a well-founded suspicion that the person committed, was committing, or was about to commit a crime. Id. at 586. This suspicion must be rooted in the factual circumstances observed by the officer and interpreted in light of the officer’s knowledge. Id. at 587; McMaster, 780 So.2d at 1029. It is the circumstances, viewed in their totality, that determine whether an investigatory stop passes constitutional muster. Lopez, 923 So.2d at 587.

In Lopez, an officer received an email from Lopez’s probation officer that Lopez was violating his community control by driving. The probation officer gave the officer Lopez’s address and advised that Lopez was a painter who left for work early in the morning. After verifying that Lopez’s license was suspended and obtaining Lopez’s photograph, the officer drove by the residence and observed a Jeep, with a ladder attached, in the driveway. The Jeep was registered to a woman with the same address as Lopez. Although the officer did not see who got into the Jeep, he observed it leave the house and stop at an intersection with the turn signal activated. Despite having the opportunity to turn, the Jeep remained at the intersection, allowing the officer to drive by and observe a man driving. Upon seeing the police car, the driver of the Jeep abruptly turned and sped back to Lopez’s address. The Jeep was subsequently stopped and Lopez was confirmed to be the driver.

The trial court granted Lopez’s motion to suppress, finding that the officer did not have a reasonable suspicion to stop the Jeep because it was registered to a woman, he did not see who was driving, and no traffic laws were violated. This court reversed, finding that the totality of the circumstances provided reasonable suspicion that Lopez was driving the Jeep, thereby violating his community control.

In the case at bar, the house was not Evans’ known or listed address. Evans was not seen at the house prior to the car pulling up and stopping. There were no distinguishing characteristics of the car that associated it with Evans, unlike Lopez where the truck was consistent with Lopez’s occupation as a painter. Neither Evans, nor anyone matching his description, was seen entering or exiting the car. In fact, the deputies had no information regarding the driver or passengers in the car. The lack of any information corroborating the anonymous tip, facts linking Evans with the house or the car, or observations of criminal activity distinguishes this case from Lopez.

At best, the deputies stopped the car based on an unsubstantiated hunch, similar to the officers in Tinson v. State, 650 So.2d 189 (Fla. 2d DCA 1995). Accordingly, I would reverse.

      . Evans was arrested later that evening at the residence in question.

      . After the stop, Appellant told deputies that he had a gun. The use of this statement and the retrieval of the gun based on the admission is not an issue on appeal.

      . No traffic violation was asserted as a basis for the stop.


source: Caselaw Access Project

author: LaROSE, Judge. VILLANTI, Judge,

license: Public Domain

text:
    Michael WARFEL, Appellant, v. UNIVERSAL INSURANCE COMPANY OF NORTH AMERICA, Appellee.
    No. 2D08-3134.
    District Court of Appeal of Florida, Second District.
    May 12, 2010.
    Nancy A. Lauten and George A. Vaka of Vaka, Larson & Johnson, P.L., Tampa; and Jonathan Hall, Joshua E. Burnett, and Marshall Thomas Burnett, Tampa, for Appellant.
    Alicia Lopez and Karl Forrest of Groelle & Salmon, P.A., Tampa, for Appellee.
   LaROSE, Judge.

Michael Warfel appeals a final judgment entered in favor of Universal Insurance Company of North America in a sinkhole insurance coverage case. Mr. Warfel is entitled to a new trial because the trial court should not have instructed the jury on an evidentiary presumption that imper-missibly shifted the burden of proof to him. Accordingly, we reverse.

In March 2005, Universal issued an all-risks homeowners’ insurance policy to Mr. Warfel. The policy covered sinkhole claims. Effective June 1, 2005, the legislature amended sections 627.706 to 627.707, Florida Statutes (2005), and enacted sections 627.7065, 627.7072, and 627.7073 relating to database information, testing standards, and reporting requirements for sinkhole claims.

In August 2005, Mr. Warfel noticed damaged walls and floors in his home. He filed a sinkhole claim with Universal. After an investigation by a geotechnical, geological and engineering firm, SD II Global, Universal denied the claim, concluding that the damage was not caused by a sinkhole. The SD II Global report found that the damage was caused by shrinkage, thermal stress, and differential settlement, all of which are excluded from coverage under the policy.

Mr. Warfel sued Universal. Before trial, Universal filed a motion asking the trial court to apply the above-referenced statutory provisions to the case. Universal contended that the 2005 amendments and enactments did not impair existing contract rights or obligations. Alternatively, Universal argued that any impairment was overridden by the State’s interest in resolving a sinkhole insurance claim crisis. Universal also asked the trial court to determine that section 90.304, Florida Statutes (2007), allowed a jury instruction based on section 627.7073(l)(c) as a rebut-table presumption affecting the burden of proof. Over Mr. Warfel’s objection, the trial court granted Universal’s motion as it related to the jury instruction; that ruling is the crux of this appeal.

At trial several experts testified about the cause of damage to Mr. Warfel’s home. Mr. Warfel presented the testimony of a geologist, an engineer, and a structural engineer, all of whom had reviewed the SD II Global report. They concluded that a sinkhole, at least in part, caused the damage. Universal presented testimony of a structural engineer, a geotechnical engineer, and a geologist, all affiliated with SD II Global. They concluded that sinkhole activity did not damage the home.

Universal posited that section 627.7073(l)(c) required Mr. Warfel to prove that he suffered a sinkhole loss as specifically defined by statute. The 2005 version of section 627.7073(l)(c) provided as follows:

The respective findings, opinions, and recommendations of the engineer and professional geologist as to the verification or elimination of a sinkhole loss and the findings, opinions, and recommendations of the engineer as to land and building stabilization and foundation repair shall be presumed correct.

Universal retained its experts under section 627.707(2) to conduct the testing required by section 627.7072 and to issue a report in accordance with section 627.7073. This report bears the presumption of correctness.

Universal also contended that section 627.7073(l)(c) created a section 90.304 presumption because it implemented public policy relating to a sinkhole insurance crisis. Universal reasoned that the SD II Global report findings are presumptively correct; the presumption shifted the burden of proof to Mr. Warfel. The trial court agreed and instructed the jury as follows:

You must -presume that the opinions, findings, and conclusion in the SD II report as to the cause of damage and whether or not a sinkhole loss has occurred are correct. This presumption is rebuttable. The Plaintiff has the burden of proving by a preponderance of the evidence that the findings, opinions, and conclusions of the report are not correct.

(Emphasis added.) Universal stressed this instruction during its closing argument, emphasizing that the trial court would tell the jury that it

must presume that the opinions, findings, and conclusions in the SD II report as to the cause of damage and whether or not a sinkhole loss has occurred are correct. You must presume that report is correct. That report is the only report in evidence.
You can take it back in the room. Read it. You will presume — the Judge will instruct you you must presume that’s correct.

Throughout the trial court proceedings, Mr. Warfel argued that the section 627.7073(l)(c) presumption was a “vanishing” or “bursting bubble” presumption, a presumption affecting the burden of producing evidence but not one shifting the burden of proof to him. See §§ 90.302(1), 90.303. Additionally, Mr. Warfel explained that the statutory scheme reflected no legislative intent to apply a public or social policy presumption so as to shift the burden of proof to the homeowner. He is correct.

We see no clear legislative expression that public policy compels a homeowner to shoulder the burden to disprove the findings and recommendations of the insurer’s engineers and geologists. We are also mindful that, historically, an all-risks policy encumbers the insurer with the burden to prove that a claimed loss is not covered. See Wallach v. Rosenberg, 527 So.2d 1386, 1388-89 (Fla. 3d DCA 1988). We must assume that the legislature was aware of this fact when it enacted section 627.7073(l)(c). Moreover, the legislature knows how to create burden-shifting presumptions under section 90.304. See C. Ehrhardt, Florida Evidence § 304.1 (2009 ed.) (explaining presumptions that affect the burden of proof and providing examples of conclusive presumptions). For example, the legislature included a burden-shifting presumption in a statutory amendment governing burdens of proof in will contests. There, the legislature announced that a presumption of undue influence implements public policy and shifts the burden of proof after the presumption of undue influence arises in a will contest. See § 733.107(2), Fla. Stat. (2002); Hack v. Janes, 878 So.2d 440, 443-44 (Fla. 5th DCA 2004) (explaining the section 733.107(2) provision and the difference between vanishing presumptions, which merely affect the burden of production of evidence, and public policy-related presumptions that provide for shifting of the burden of proof). Other legislatively mandated public policy-related presumptions abound. See, e.g., Mallardi v. Jenne, 721 So.2d 380, 383 (Fla. 4th DCA 1998) (discussing amendment to section 61.14, Florida Statutes (1992), which adopted a presumption relating to contempt for failure to pay alimony or child support under section 90.302(2) of the evidence code “to implement the public policy of this state”); Ferguson v. Williams, 566 So.2d 9, 11 (Fla. 3d DCA 1990) (explaining that the statutory presumption of paternity under section 742.12(1), Florida Statutes (1989), is a rebuttable presumption and the legislature specifically provided that it was governed by section 90.304 of the evidence code).

In contrast, the legislature has not declared that the presumption in section 627.7073(l)(c) is a public policy-related presumption. Nor did the legislature specifically provide that section 627.7073(l)(c) was to operate as a burden-shifting presumption under sections 90.302(2) or 90.304. Absent a clear legislative directive, we must conclude that section 627.7073(l)(c) is a “vanishing” or “bursting bubble” presumption that affected only Mr. Warfel’s burden of producing evidence. See C. Ehrhardt, Florida Evidence § 303.1. An explanation of this type of presumption was reiterated in International Alliance of Theatrical Stage Employees & Moving Picture Technicians, Artists & Allied Crafts of the United States, its Territories, & Canada Local 500 v. International Alliance of Theatrical Stage Employees & Moving Picture Machine Operators Holding Co., 902 So.2d 959, 963 (Fla. 4th DCA 2005) (quoting Caldwell v. Div. of Ret., 372 So.2d 438, 440 (Fla.1979)):

[W]hen credible evidence comes into the case contradicting the basic fact or facts giving rise to the presumption, the presumption vanishes and the issue is determined on the evidence just as though no presumption has ever existed. Conversely, if the basic facts are sufficiently proven so as to give rise to the presumption and not thereafter contradicted by credible evidence, the party in whose favor the presumption exists becomes entitled to a directed verdict. Thus, in either event, the presumption is productive of these procedural consequences but is not a matter for the jury to consider.

The jury is not told of this presumption. See Pub. Health Trust of Dade County v. Valcin, 507 So.2d 596, 600 (Fla.1987); Murray v. Schreiner, 825 So.2d 527, 528 (Fla. 2d DCA 2002) (“ ‘When the defendant produces evidence which fairly and reasonably tends to show that the real fact is not as presumed, the impact of “the presumption is dissipated.” Whether the ultimate fact has been established must then be decided by the jury from all of the evidence before it without the aid of the presumption.’” (quoting Gulle v. Boggs, 174 So.2d 26, 28-29 (Fla.1965))); Aetna Cas. & Sur. Co. v. Pappagallo Rest., Inc., 547 So.2d 243, 244 (Fla. 3d DCA 1989) (explaining that when adverse party introduces credible evidence to disprove a presumed fact, the presumption vanishes and the jury is never told of it); Nationwide Mut. Ins. Co. v. Griffin, 222 So.2d 754, 756 (Fla. 4th DCA 1969) (“A presumption is a rule of law which attaches to certain evi-dentiary facts and is productive of certain procedural consequences. The presumption is not itself evidence and has no probative value.”).

Because the trial court misapplied the presumption at work in this case and gave the jury an instruction improperly shifting the burden of proof, a new trial is required.

Reversed and remanded.

However, because our ruling may affect insurance claims for sinkhole losses throughout Florida, we certify the following question to the supreme court as one of great public importance:

DOES THE LANGUAGE OF SECTION 627.7073(1)(C) CREATE A PRESUMPTION AFFECTING THE BURDEN OF PROOF UNDER SECTION 90.304 OR DOES THE LANGUAGE CREATE A PRESUMPTION AFFECTING THE BURDEN OF PRODUCING EVIDENCE UNDER SECTION 90.303.

WALLACE, J., Concurs.

VILLANTI, J., Dissents with opinion.

VILLANTI, Judge,

Dissenting.

I respectfully dissent because I do not agree that the trial court erred in its jury instruction regarding section 627.7073.

The standard of review applicable to a trial court’s decision to give or withhold a jury instruction is abuse of discretion. Barbour v. Brinker Fla., Inc., 801 So.2d 953, 959 (Fla. 5th DCA 2001). “Trial courts are generally accorded broad discretion in formulating jury instructions.” Id.; see also Barkett v. Gomez, 908 So.2d 1084, 1086 (Fla. 3d DCA 2005) (noting that decisions regarding jury instructions rest within the trial court’s discretion and will not be reversed absent a showing of prejudicial error). In this case, the statute stated that the findings, opinions, and recommendations of the experts were presumed correct. See § 627.7073(l)(c). I fail to see how a trial court can abuse its discretion by giving an instruction that merely tracks the governing law. In fact, it would have been an abuse of discretion for the trial court to deny giving the requested instruction, since it was undisputed that Universal met its obligations under the new legislation and that Mr. Warfel’s claim both arose and was filed after the statute’s effective date. See, e.g., Barkett, 908 So.2d at 1086-87 (holding that failure to give jury instruction which tracked statutory language and which was warranted by the evidence or arguments required a new trial).

Furthermore, the parties do not dispute that social policy concerns drove the legislative changes at play in this case. They only disagree as to whether the presumption that accompanied these changes was one shifting the burden of proof or one that merely vanished once countervailing evidence was adduced. I contend that because the statutory sections at issue in the case were enacted to advance social or public policy, a burden-shifting presumption applies.

Section 90.303, Florida Statutes (2005), provides:

Presumption affecting the burden of producing evidence defined. — In a civil action or proceeding, unless otherwise provided by statute, a presumption established primarily to facilitate the determination of the particular action in which the presumption is applied, rather than to implement public policy, is a presumption affecting the burden of producing evidence.

(Emphasis added.) Section 90.304 then provides:

Presumption affecting the burden of proof defined. — In civil actions, all re-buttable presumptions which are not defined in s. 90.303 are presumptions affecting the burden of proof.

(Emphasis added.) Section 90.304 applies to presumptions implementing public policy and, therefore, applies in this case.

Caldwell v. Division of Retirement, Florida Department of Administration, 372 So.2d 438, 439 (Fla.1979), provides a useful analytic framework. In Caldivell the supreme court analyzed presumptions where the relevant statute did not expressly create a burden-shifting presumption. The ease involved section 112.18(1), Florida Statutes (1975), which provided that a fireman’s disability or death caused by heart disease was presumed to have been suffered in the line of duty unless the contrary was shown by competent evidence. Id. In Caldwell, there was conflicting expert testimony as to the cause of the fireman’s injury. Id. The supreme court concluded that the presumption created by the statute “embodie[d] the social policy of the state” which recognized that firemen are subjected to certain hazards which could cause heart disease. Id. at 440. Therefore, the statutory presumption was intended to shift the burden of proof/persuasion, even though the statute did not expressly so state. The court reasoned that the presumption would be meaningless and would negate the statutory language if it simply vanished following testimony from the employer’s expert regarding causation. Id. at 440-41.

Similar public policy considerations are evident in this case. In 2004, in response to the increase in sinkhole claims and policy cancellations, the Florida Legislature commissioned a study by Florida State University on matters related to the affordability and availability of sinkhole insurance. See Fla. S. Banking & Ins. Comm., CS for SB 1488 (2005) Staff Analysis 18 (Apr. 7, 2005) (on file with comm.) [hereinafter SB 1488 Staff Analysis]. The study found that sinkhole claims had dramatically increased in a five-year period, from 348 in 1999 to 1108 in 2003, and that payments for sinkhole claims had almost tripled, from $22.4 million in 1999 to $65 million in 2003. Id. As a result of the increase in sinkhole claims and the high costs associated with investigating those claims, many private insurers withdrew from Florida, forcing residents to obtain property insurance through Citizens Property Insurance Company, Florida’s insurer of last resort. Cassandra R. Cole, Ph. D., et al., Potential Solutions to the Sinkhole Problem in Florida, CPCU eJOUR-NAL (CPCU Society, Malvern, PA), Dec. 2005, at 2. This situation resulted in substantial rate increases for Citizens’ policyholders in sinkhole-prone counties. Id. at 2. The 2005 study made several recommendations to address the “sinkhole problem.” Id. at 1. These recommendations included creating uniform procedures for adjusting sinkhole claims utilizing experts and establishing a database with sinkhole claims information. Id. The study recognized the high cost of sinkhole testing and the fact that accurate testing requires a certain level of “geotechnical expertise.” Id. at 3. One of the problems with sinkhole testing was the lack of standardized methods for identifying sinkholes, which caused a large number of disputed claims. Id. The 2005 report recommended the creation of a uniform approach to identify sinkholes, in an effort to “provide consistency in claims handling” and a reduction in the number of disputed sinkhole claims. Id. at 4. It was obvious, based upon the study, that a collapse of the sinkhole insurance market was imminent without legislative reform. Against this critical economic background, the legislature revised the statutes at issue in this case “in response to a continuing crisis regarding the availability and affordability of sinkhole coverage.” Fla. S. Banking & Ins. Comm., CS for SB 286 (2006) Staff Analysis 3 (Apr. 11, 2006) (on file with comm.).

Specifically, section 627.707, Florida Statutes (2005), was amended to revise the standards for investigating sinkhole claims. See SB 1488 Staff Analysis at 24. Section 627.707(2) requires an insurer who receives a sinkhole claim to engage an engineer or professional geologist to conduct testing as set forth in section 627.7072, to determine the cause of loss. Section 627.7072 sets forth specific standards to test for the presence or absence of sinkholes. The testing must conform to the Florida Geological Survey Special Publication No. 57 (2005). § 627.7072(2). Section 627.707(2) then requires that a report be issued as provided in section 627.7073. Id. Section 627.7073 specifies what must be included in that report. Section 627.7073(l)(c) then clearly states:

The respective findings, opinions, and recommendations of the engineer and professional geologist as to the verification or elimination of a sinkhole loss and the findings, opinions, and recommendations of the engineer as to land and building stabilization and foundation repair shall be presumed correct.

(Emphasis added.) As in Caldwell, it is clear that these statutory sections were enacted with a common social policy: to address the critical sinkhole insurance problem in Florida. Presumptions based on social policy are not “vanishing” presumptions; they do not automatically disappear. See Caldwell, 372 So.2d at 440. Rather, they are presumptions shifting the burden of proof. Id. (holding that presumption could be overcome only by clear and convincing evidence and that, in the absence of such cogent proof, public policy must be given effect). The majority points out that the legislature knows how to expressly create burden-shifting presumptions under section 90.304. While this may be true, as illustrated by Caldwell, the fact that the statute does not expressly state that it contains a burden-shifting presumption is not always dispositive of the issue.

In fact, this case illustrates why section 627.7073’s presumption ought to be a burden-shifting presumption. Upon receiving Mr. Warfel’s claim, Universal hired experts whose qualifications met the requirements of the relevant statute and had those experts conduct the type of testing required by the statute. The experts then prepared a report as required by section 627.7073. This was all done at Universal’s expense. At trial Mr. Warfel offered his own experts, who simply reviewed Universal’s report and visited the property; they did not conduct independent testing consistent with the standards set forth in section 627.7072. Mr. Warfel’s experts then simply disagreed with the report’s conclusions and opined that a sinkhole contributed to the damage to Mr. Warfel’s property. To apply a “vanishing” presumption under these facts effectively negates the presumption of correctness conferred upon the report by section 627.7073(l)(c). It is inconceivable that the legislature would enact a statute containing extensive detail regarding sinkhole testing and expert reports and that it would express its intent that the report “be presumed correct,” only to have this presumption “vanish” when an expert hired by the insured simply testifies that he disagrees with the conclusions contained in the report. Allowing Mr. War-fel’s experts to “vanish” the presumption created by the statute by simply testifying that they disagree with the report negates the statute’s efforts to provide consistency in claims handling and reduce the number of disputed sinkhole claims. This type of ipse dixit logic from the insured’s experts is not consistent with the history and intent of the statute.

      . Universal was required to retain these experts. Section 627.707 provides, in part, as follows:
      Upon receipt of a claim for a sinkhole loss, an insurer must meet the following standards in investigating a claim:
      (1) The insurer must make an inspection of the insured's premises to determine if there has been physical damage to the structure which may be the result of sinkhole activity.
      (2) Following the insurer's initial inspection, the insurer shall engage an engineer or a professional geologist to conduct testing as provided in s. 627.7072 to determine the cause of the loss within a reasonable professional probability and issue a report as provided in s. 627.7073, if:
      (a) The insurer is unable to identify a valid cause of the damage or discovers damage to the structure which is consistent with sinkhole loss; or
      (b) The policyholder demands testing in accordance with this section or s. 627.7072.

      . The trial court denied Universal’s motion as to sections 627.706 to 627.707, finding that these amendments were substantive and not applicable retroactively. The trial court granted Universal’s motion as to the three new enactments, sections 627.7065, 627.7072, and 627.7073, relating to sinkhole database, testing, and reporting requirements, reasoning that the statutes were procedural and did not involve an issue of retroactivity. Although Mr. Warfel takes issue with the latter ruling, we find no error and discuss the matter no further.

      . The legislature made minor changes to section 627.7073(l)(c) in 2006, none of which are relevant here.

      . 90.304 Presumption affecting the burden of proof defined. — In civil actions, all rebuttable presumptions which are not defined in s. 90.303 are presumptions affecting the burden of proof.

      . 90.302 Classification of rebuttable presumptions. Every rebuttable presumption is either:
      (1) A presumption affecting the burden of producing evidence and requiring the trier of fact to assume the existence of the presumed fact, unless credible evidence sufficient to sustain a finding of the nonexistence of the presumed fact is introduced, in which event, the existence or nonexistence of the presumed fact shall be determined from the evidence without regard to the presumption; or
      (2) A presumption affecting the burden of proof that imposes upon the party against whom it operates the burden of proof concerning the nonexistence of the presumed fact.

      . 90.303 Presumption affecting the burden of producing evidence defined. — In a civil action or proceeding, unless otherwise provided by statute, a presumption established primarily to facilitate the determination of the particular action in which the presumption is applied, rather than to implement public policy, is a presumption affecting the burden of producing evidence.

      . We recognize the legislature’s desire to stem the tide of sinkhole-related insurance claims. Unquestionably, certain provisions of the statutes described earlier in this opinion reflect a concern with identifying and advising homeowners and others of potential sinkhole-prone areas. See §§ 627.7065, 627.7072, 627.7073. For example, the reporting and recording provisions of sections 627.7065 and 627.7073 promote public awareness. But we are hesitant to conclude that this concern with enhancing public information, absent clear legislative direction, extends to the micromanagement of trial proceedings between private parties.

      . In 2005, the cost of testing for sinkhole losses ranged from $4000 to $8000 and higher. Cassandra R. Cole, Ph.D., et. al., supra at 3.


author: ROTHENBERG, J.

text:
    Georgina ALBERT, Appellant, v. Gervasio ALBERT and Miguel Albert, Appellees.
    No. 3D09-2074.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.
    Rehearing Denied June 16, 2010.

      Eliot R. Weitzman, Hollywood; Orshan, Lithman, Seiden, Ramos, Hatton, Hues-mann & Fajardo and Robert P. Lithman, Coral Gables, for appellant.
    Paul B. Feltman, for appellees.
    Before SHEPHERD, ROTHENBERG and LAGOA, JJ.
   ROTHENBERG, J.

Georgina Albert appeals a non-final order granting Gervasio Albert’s motion to reinstate an action that was “dismissed with prejudice” pursuant to a final order entered on December 19, 2007. For the reasons that follow, we affirm.

Background

Gervasio Albert sued his son, Miguel Albert, and his son’s then wife, Georgina Albert, in 2005 to recover $750,000 he allegedly loaned the couple for the construction of a house in Coral Gables. The couple divorced in 2006, and Georgina Albert (“former wife”) was awarded a condominium in Vail, Colorado, pursuant to the final judgment dissolving the marriage. In 2007, all three parties entered into a Settlement Agreement (“Agreement”) which stipulated that: Miguel Albert (“former husband”) and Gervasio Albert (“former husband’s father”) would pay the former wife $893,000; the former wife would execute a quitclaim deed transferring the Vail condominium to the former husband’s father; and the former husband’s father would dismiss all claims against his son and the former wife.

The Agreement also provided that if the former husband’s father was unable to secure financing or he failed to make payments timely, the former wife had the right to declare the Agreement null and void, and in that event, “the parties shall be returned to the position they were in immediately prior to the execution of the Agreement including, but not limited to, return of deeds, promissory notes, mortgages, etc.”

The order that was presented to the trial court, approved by the lawyers representing the parties, and signed by the trial court does not provide a modicum of clarity. Although the order approving the settlement states that the trial court is “dismissing the action with prejudice,” the order also states that the trial court was “reserving jurisdiction to both enforce the terms of the Settlement Agreement” and “the right to vacate and/or set aside the Settlement Stipulation and reinstate the action pursuant to the terms of the Settlement [AJgreement.” (emphasis added).

On May 1, 2008, the parties executed a Modification Agreement, allowing the former husband’s father additional time to obtain the required financing and increasing the payment from $893,000 to $907,500. The Modification Agreement required the former wife to quitclaim the Vail condominium to both herself and her former husband’s father so he could obtain financing. This deed was recorded. The former wife and former husband’s father also executed a second quitclaim deed transferring the property from themselves to the former wife individually. The Modification Agreement granted the former wife the authority to record the second deed if the former husband’s father defaulted. The former husband’s father failed to secure a loan and timely comply with his payment obligations. On July 23, 2008, the former wife recorded the second deed and sold the property to a third party.

On March 31, 2009, the former husband’s father filed a motion to reinstate the action, alleging that by selling the Vail condominium, the former wife had declared the Agreement null and void, and pursuant to the Agreement, he was entitled to be placed in the same position he was in before the Agreement was executed. The trial court vacated its order approving the Agreement and reinstated the action. This appeal followed.

Analysis

The determinative issues in this appeal are: whether the former wife’s actions were, in effect, a declaration that the Agreement was null and void; whether her actions “returned the parties to the position they were in immediately prior to the execution of the Agreement”; and whether the trial court had jurisdiction to reinstate the lawsuit.

We answer all three questions in the affirmative and conclude that the trial court’s findings were correct. There is no question that the former wife was entitled to record the second quitclaim deed to the Vail condominium if the former husband’s father defaulted, and thereafter sell the condominium to a third party. The question, therefore, is whether the recording of the deed by the former wife quitclaiming the condominium to herself and her subsequent sale of the property was in effect, an election by the former wife to terminate the Agreement and for the trial court to vacate the order approving the Agreement and reinstate the former husband’s action against her. Based on our review of the trial court’s order approving the Agreement and the subsequent Modification Agreement signed by the parties, we conclude that the former wife’s actions — quit-claiming the deed to herself and selling the condominium to a third party after the former husband’s father defaulted on the conditions of the Agreement and the Modification Agreement — was an election by her to terminate the agreements and treat the two agreements as canceled and of no force and effect, thereby vesting the trial court with the authority to reinstate the former husband’s father’s action against her.

We base this finding on the following provisions contained in the trial court’s order approving the Agreement and the subsequent Modification Agreement.

ORDER APPROVING SETTLEMENT

ORDERED and ADJUDGED:

1) that this Settlement attached hereto and made a part hereof, be and is hereby approved,
2) that based on the facts so stipulated to between the parties herein, this action including all counterclaims and crossclaim is dismissed with prejudice ... with the Court reserving jurisdiction to both enforce the terms of the Settlement Agreement between the parties, with the Court noting that it specifically reserves the right to vacate and/or set aside the Settlement Stipulation and reinstate the action pursuant to the terms of the Settlement Agreement....
(bold emphasis added).
SETTLEMENT AGREEMENT
2. TERMS OF SETTLEMENT:
In the event that the Plaintiff [the former husband’s father] cannot, for any reason whatsoever, secure a new first loan from a lender as referred to herein, then, and in that event, at the election of the Defendant, Georgina Albert, this Agreement may be declared null and void, of no force and effect, and the parties shall be returned to the position they were in immediately prior to execution of the Agreement including, but not limited to, return of deeds, promissory notes, mortgages, etc.
(bold emphasis added).
15. DEFAULT: In the event that Plaintiff or Defendant Miguel Albert, fail to comply with any term or condition of this Agreement ... including, but not limited to, failing to make any payment required ... then, in addition to all other rights to which Defendant, Georgina Albert, may be entitled, she shall also have the right to immediately initiate a foreclosure action.... As an alternative, and at the sole discretion of Defendant, Georgina Albert, in the event of a default of any term or condition of this Agreement or Agreement attached or referred to herein, Defendant, Georgina Albert, will have the right to treat this Agreement as canceled and of no force and effect. If Defendant, Georgina Albert, elects to have this Agreement or the matters referred to herein terminated and declared of no force and effect, Defendant, Georgina Albert, shall immediately be entitled to, among other things, immediate return of the deed delivered to Plaintiff or have Plaintiff immediately execute a quit claim deed to her returning the Subject Property to her.
(bold emphasis added).
FIRST MODIFICATION AND/OR AMENDMENT TO SETTLEMENT AGREEMENT
2. MODIFICATIONS AND/OR AMENDMENTS:
(C) DEFAULT: All of the terms of Paragraph 15 of the Settlement Agreement dated November 21, 2007, shall remain the same with the addition of ... [providing Georgina Albert with additional remedies upon a default by the Plaintiff].
3. NO OTHER MODIFICATIONS OR AMENDMENTS AND ACKNOWLEDGMENT OF SETTLEMENT AGREEMENT. Except as specifically provided herein, all of the other terms and conditions of that Settlement Agreement dated November 21, 2007, shall remain in full force and effect and the parties are bound thereby or Agreements.

The purpose of the Agreement (and Modification Agreement) was to transfer the Vail condominium from the former wife to the former husband’s father in exchange for a sum of money. In exchange for the former wife’s agreement to sell the property to the former husband’s father at the agreed upon price, the former husband’s father agreed to dismiss his lawsuit against the former wife. The Agreement provided for certain remedies upon default by the former husband’s father. The Modification Agreement expanded the former wife’s remedy options. Under the default provision of the Agreement, the former wife had the “right to treat this Agreement as canceled and of no force and effect” upon certain conditions, including the failure of the former husband’s father to make the scheduled payments. The Modification Agreement adopted this default provision.

In executing the order approving the Agreement, which was approved by the lawyers representing all of the parties, the trial court incorporated the Agreement by reference and reserved jurisdiction to “both enforce the terms of the Settlement Agreement” and “to vacate and/or set aside the Settlement Stipulation and reinstate the action pursuant to the terms of the Settlement Agreement.”

As was her right, the former -wife “treat[ed]” the Agreement as canceled, quitclaimed the deed to herself, and sold the property, thus triggering the trial court’s clearly reserved jurisdiction to reinstate the lawsuit filed by the former husband’s father. Because the trial court approved the Agreement by order and retained jurisdiction to enforce its terms and to vacate or set aside the order approving the Agreement and reinstate the action, the trial court properly exercised its jurisdiction in this matter. See Paulucci v. Gen. Dynamics Corp., 842 So.2d 797, 799 (Fla.2003) (holding that “a court has jurisdiction to enforce a settlement agreement where the court has either incorporated the agreement into a final judgment or approved the agreement by order and retained jurisdiction to enforce its terms”); see also Buckley Towers Condo., Inc. v. Buchwald, 321 So.2d 628 (Fla. 3d DCA 1975) (holding that “even without an express reservation thereof, jurisdiction inherently remains in the trial court to make such orders as may be necessary to enforce its judgment”).

In Paulucei, the Florida Supreme Court recognized that “[sjubject matter jurisdiction ‘means no more than the power lawfully existing to hear and determine a cause.’ ” 842 So.2d at 801 (citing Cunningham v. Standard Guar. Ins. Co., 630 So.2d 179, 181 (Fla.1994)) (quoting Malone v. Meres, 91 Fla. 709, 109 So. 677, 683 (1926)). The Court further found that the issue presented in the certified question was really one of the trial court’s continuing jurisdiction. Paulucci, 842 So.2d at 801.

There is a difference between presenting a settlement agreement to the trial court for approval prior to dismissal of an action and cases where the parties voluntarily dismiss the action without an order of the court pursuant to Florida Rule of Civil Procedure 1.420. MCR Funding v. CMG Funding Corp., 771 So.2d 32 (Fla. 4th DCA 2000). A voluntary dismissal under rule 1.420(a) divests the trial court of continuing jurisdiction over the case. Randle-Eastern Ambulance Serv., Inc. v. Vasta, 360 So.2d 68, 69 (Fla.1978). However, where the parties, prior to dismissal, present a settlement agreement to the trial court for approval and the trial court enters an order of dismissal predicated on the parties’ settlement agreement, the trial court retains jurisdiction to enforce the terms of the settlement agreement. Paulucci, 842 So.2d at 802-03.

The former husband’s father failed to obtain the anticipated loan and make the requisite payments under either agreement. Based on the agreements, the former wife had a choice of remedies. The remedy she chose was to: (1) “treat [the agreements] as canceled and of no force and effect” and be “entitled to immediate return of the deed” (under the Agreement) or “forthwith, record the quit claim deed” held by her attorney (under the Modification Agreement); and (2) allow the trial court to declare the Agreement “null and void, of no force and effect,” and return the parties “to the position they were in immediately prior to execution of the Agreement.” Because the trial court, with the approval of all of the parties, reserved jurisdiction to enforce their Agreement and to reinstate the lawsuit upon a default by the former husband’s father, the trial court acted within its jurisdiction and properly reinstated the lawsuit.

Affirmed.


author: WALLACE, Judge.

text:
    Larry D. HUNTER, Jr., Appellant, v. Pamela J. HUNTER, Appellee.
    No. 2D09-4878.
    District Court of Appeal of Florida, Second District.
    May 26, 2010.
    Catherine W. Real and Kelly Ann L. May of Catherine W. Real, P.A., Tampa, for Appellant.
    Charles D. Waller, Dade City, for Appel-lee.
   WALLACE, Judge.

On a motion filed by Pamela J. Hunter (the Wife) in an action for the dissolution of her marriage to Larry D. Hunter, Jr. (the Husband), the circuit court entered a temporary injunction without notice. The order granted the Wife the exclusive use and possession of the marital home. The order also required the Husband to return multiple items of personal property to the marital home. Because both the Wife’s motion and the circuit court’s order fail to comply with the requirements of Florida Rule of Civil Procedure 1.610 concerning injunctions, we reverse the order and remand for further proceedings.

THE FACTS AND PROCEDURAL HISTORY

The parties were married on March 12, 2005. After the marriage, the parties purchased the marital home. They lived in the marital home with their two minor children until April 2008, when the Husband filed a petition for dissolution of marriage.

After the Husband filed his petition, the Wife moved out of the marital home with the two children. The Husband claims that when the Wife moved out, she removed a substantial amount of personal property from the home and stored it in an undisclosed location. On or about September 1, 2009, the Wife and the children moved back into the marital residence. The Wife’s return to the marital home prompted the Husband to file a “Verified Ex-Parte Emergency Motion for Exclusive Use and Possession of the Former Marital Residence.” The Husband claims that “[t]he [circuit] court refused to hear the motion ex parte and deemed the motion not to be an emergency.”

The parties continued to live together in the marital home until October 2009, when the Husband moved out. When the Husband left, he apparently took all of the furniture remaining in the home except the bedroom sets used by the Wife and the children. On October 7, 2009, the Wife responded by filing her “Emergency Ex-Parte Motion for Relief and Exclusive Possession of the Marital Residence.” In her motion, the Wife asked the circuit court to enter an order granting her the exclusive use and possession of the marital home and requiring the Husband to return all of the personal property that he had removed from the home. The motion was neither verified nor supported by affidavits.

On October 7, 2009, the Wife’s attorney served (by United States mail and facsimile transmission) a copy of the motion on the Husband’s attorney. There was no notice of hearing on the motion. The Husband’s attorney could not have received the facsimile transmission earlier than approximately one hour before the circuit court signed the order under review. We note that the office of the Husband’s attorney is located in Tampa and that the hearing was held in Dade City.

The circuit court held an ex parte hearing on the motion the same day it was filed and granted the motion. In its order, the circuit court gave the Wife exclusive use and possession of the marital home and gave the Husband twenty-four hours from the entry of the order to return the personal property he had taken from the home. Although the circuit court did not note the time of the entry of the order on its face, the Husband’s attorney received a copy of the order by facsimile transmission from the Wife’s attorney at 2:05 p.m.— after the order was signed.

DISCUSSION

A trial court should only order relief in an ex parte proceeding where there exists an immediate threat of irreparable injury that forecloses the opportunity to give reasonable notice. See City of Boca Raton v. Boca Raton Airport Auth., 768 So.2d 1191, 1192 (Fla. 4th DCA 2000). Thus a motion seeking ex-parte relief “must demonstrate (1) how and why the giving of notice would accelerate or precipitate the injury or (2) that the time required to notice a hearing would actually permit the threatened irreparable injury to occur.” Id. at 1193 (quoting Smith v. Knight, 679 So.2d 359, 361 (Fla. 4th DCA 1996)). In this case, the Wife’s motion failed to demonstrate either an immediate threat of irreparable injury or a reason notice could not be given.

With respect to the Wife’s motion for an order granting her exclusive use and possession of the marital home, the Wife had already moved into the marital home and the Husband had vacated the residence before the motion was filed. So, as a practical matter, the Wife had exclusive use and possession of the marital home when the motion was filed. In addition, the Wife did not seek entry of the order to prevent the Husband from removing personal property from the marital home. The personal property had previously been removed and taken elsewhere. Therefore, assuming that the Wife would suffer an injury as a result of the Husband’s actions, the injury had already occurred. Giving notice to the Husband would neither have accelerated the injury nor have permitted it to occur.

To the extent that the order grants injunctive relief, we observe that almost none of the required procedures were followed. According to Florida Family Law Rule of Procedure 12.610(a), injunctive relief in family law cases not related to the need for protection against domestic violence, repeat violence, dating violence, or sexual violence is governed by Florida Rule of Civil Procedure 1.610. Rule 1.610(a)(1) permits the entry of a temporary injunction without written or oral notice to the adverse party only if:

(A) it appears from the specific facts shown by affidavit or verified pleading that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and
(B) the movant’s attorney certifies in writing any efforts that have been made to give notice and the reasons why notice should not be required.

(Emphasis added.) Here, the Wife’s motion was neither verified nor supported by affidavits. Thus the motion was deficient under rule 1.610(a)(1)(A). Also, the motion did not contain the attorney’s certification required under rule 1.601(a)(1)(B). Furthermore, the order itself is defective because it contains no explanation of the reasons for its entry other than “[t]he Emergency Motion is well taken.” Thus the order violates rule 1.610(c), which requires that an injunction specify the reasons for entry. See also Hathcock v. Hathcock, 533 So.2d 802, 804 (Fla. 1st DCA 1988) (holding that an order enjoining the husband from disposing of marital property and awarding the wife temporary exclusive use and possession of the marital home failed to comply with rule 1.610 because it contained no findings concerning why the injury would be irreparable or why the order was granted without notice). Finally, it does not appear that the trial court required the Wife to post a bond as required by rule 1.610(b).

The Wife argues that the requirements of rule 1.610(a) concerning the entry of temporary injunctions without notice do not apply because the Husband actually received notice. She claims that a copy of the motion was sent by facsimile to the office of the Husband’s counsel at 11:36 a.m. on October 7, 2009, and that the order was not signed until after the trial judge’s “noon lunch time” the same day. We reject this argument. To send a copy of a motion to opposing counsel without a notice of hearing and to present the motion to the court for the entry of an order granting the motion an hour or so later is unquestionably inadequate notice — if it may even be deemed notice at all. See City of Ormond Beach v. City of Daytona Beach, 794 So.2d 660, 663 (Fla. 5th DCA 2001) (“[Njotice encompasses a reasonable opportunity to prepare and offer evidence.”); Fla. High Sch. Activities Ass’n v. Benitez, 748 So.2d 358, 359 (Fla. 5th DCA 1999) (“Notice for temporary injunction purposes means a meaningful opportunity to prepare in order to present evidence and secure a record of the proceedings.”).

Because the violations of the rule’s procedural requirements outlined above require the reversal of the circuit court’s order, we need not discuss whether the Wife’s motion, on its face, sufficiently demonstrated grounds for ex parte injunctive relief. We reverse the circuit court’s order and remand this case for further proceedings consistent with this opinion.

Reversed and remanded.

KHOUZAM and CRENSHAW, JJ., concur.

      . We have jurisdiction in accordance with Florida Rule of Appellate Procedure 9.130(a)(3)(B) and (a)(3)(C)(ii).

      . The parties have not provided us with a transcript of the hearing in the trial court that led to the entry of the order on appeal. The statement of the facts in this opinion is based on the motions and orders that the parties furnished as appendices to their briefs.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Larry JACKSON, Appellee.
    No. 4D09-559.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2010.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Nelson v. State, 16 So.3d 286 (Fla. 4th DCA 2009).

POLEN, GERBER and LEVINE, JJ., concur.


text:
    Kino JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3715.
    District Court of Appeal of Florida, Fourth District.
    May 26, 2010.

      Lance Armstrong, Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Green, 944 So.2d 208 (Fla.2006).

WARNER, POLEN and TAYLOR, JJ„ concur.


author: SUAREZ, J.

text:
    William James DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-329.
    District Court of Appeal of Florida, Third District.
    May 26, 2010.
    Carlos J. Martinez, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before COPE, WELLS, and SUAREZ, JJ.
   SUAREZ, J.

The defendant, William James Davis, appeals the revocation of his probation and an order imposing sentence. Because the trial judge abused his discretion in finding that the defendant willfully and substantially violated the conditions of his probation, we reverse the revocation of probation and order imposing sentence.

The defendant was charged in case number F04-38542 with two counts of aggravated assault with a deadly weapon and one count of battery. In case number F05-14441, he was charged with two counts of aggravated assault with a deadly weapon and one count of possession of a firearm by a convicted felon. On December 12, 2006, he pled guilty to one count of aggravated assault with a deadly weapon in case number F04-38542 and one count of aggravated assault with a deadly weapon in case number F05-1441. He was placed on reporting probation for one year for both cases. The State nolle prossed all remaining counts in each case. At the plea hearing, the trial court orally pronounced that the defendant was being placed on “one year’s reporting probation” with the special condition of participating and successfully completing the domestic intervention program. The sentence was concurrent for both cases. On May 16, 2007, the State filed an affidavit of violation of probation alleging that the defendant failed to “make a full and truthful report” and to report to his probation officer monthly as he was required to do.

The defendant contends on appeal that the State failed to meet its burden of proving that there was a willful and substantial violation of his probation by failing to report to the probation officer during the months of January, February, March and April of 2007. He alleges that he did not report monthly to his probation officer because there was no checkmark on the line in the order of supervision which required him to file a full and truthful report to the probation officer not later than the fifth day of each month and therefore he was confused and did not report again after the first day following his probation. At the probation violation hearing, the State’s evidence consisted of the order of supervision given to the defendant at the plea hearing requiring him to report monthly, the trial judge’s oral pronouncement at the plea hearing that the defendant was being placed on one year’s reporting probation, and the testimony of the probation officer that she advised the defendant of the requirement that the defendant report on a monthly basis in accordance with the checkmark that was placed on the order of supervision showing that the defendant was being placed on probation for a period of one year. The trial judge ruled that the State met its burden of proving a willful and substantial violation in connection with the defendant’s failure to report on a monthly basis to his probation officer and the failure to enroll in and successfully complete the domestic intervention program. The trial court found the defendant to be in violation of his probation, revoked the probation and sentenced him in both of his substantive cases to five years and three years respectively. After the denial of the defendant’s motion to correct a sentencing error, he appeals the revocation of his probation.

We reverse. We agree with the defendant that the condition requiring Mr. Davis report to his probation officer no later than the fifth day of each month was not checked on the order of supervision of probation as a requirement of his probation and therefore cannot serve as a basis upon which to revoke his probation.

The reporting requirement of probation provided for in section 948.03(l)(a), Florida Statutes (2006), and in Florida Rule of Criminal Procedure 3.986(e) is an essential aspect of the supervisory duties of probation. See Odom v. State, 15 So.3d 672 (Fla. 1st DCA 2009). The trial judge orally informed the defendant that he was being placed on one year’s reporting probation. As such, the defendant was made aware that a condition of his probation required him to report monthly to his probation officer. However, oral pronouncement alone, generally, is not enough. The defendant must be placed on proper written notice of this requirement in order to satisfy due process. See Torres v. State, 712 So.2d 1169 (Fla. 2d DCA 1998). Due process is satisfied only if the conditions are included in the written sentencing order. See Lawson v. State, 969 So.2d 222, 237 (Fla.2007) (“General conditions of probation, which are contained in the Florida Statutes, must be included in the order but need not be orally pronounced at the sentencing hearing.”); Maddox v. State, 760 So.2d 89, 105 (Fla.2000) (“[Gjeneral conditions of probation do not have to be orally pronounced at the sentencing hearing and due process is satisfied as long as the conditions are included in the written sentencing order.”). The defendant did not receive sufficient written notice to satisfy due process. The probation form given to the defendant at his plea hearing correctly included the condition, which states that “[n]ot later than the fifth day of each month [the defendant] will make a full and truthful report to your [probation] officer on the form provided for that purpose.” The provision in the probation form is written such that it requires a check mark next to it to be applicable. Without the check mark, it is not a written requirement. Because the order of supervision of probation in this case lacks a checkmark next to the requirement to report monthly to the probation officer, we find that it did not satisfy due process requirements and cannot serve as the basis for the revocation of probation. We reverse the order of revocation and remand for resentencing.

Reversed and remanded with instructions.

      . It also was alleged that the defendant failed to fulfill the special condition of successfully completing the domestic intervention program.

      . There was no checkmark on the line next to the requirement to report to the probation officer the day after being placed on probation.

      . 1. _you must do each of the following:
      1. not later than the fifth day of each month, unless otherwise directed you will make a full and truthful report to your officer on the form provided for that purpose.


author: YILLANTI, Judge.

text:
    Fred A. BUONICONTI, Appellant, v. Ivy BUONICONTI, Appellee.
    No. 2D09-1953.
    District Court of Appeal of Florida, Second District.
    May 28, 2010.

      Leslie Telford of Leslie Telford, P.A., Sarasota, for Appellant.
    Richard R. Garland of Dickinson & Gibbons, P.A., Sarasota, for Appellee.
   YILLANTI, Judge.

Fred Buoniconti appeals several aspects of the final judgment of dissolution of his marriage to Ivy Buoniconti. We affirm the decision to award permanent alimony payable as a lump sum and the decision to award retroactive alimony, but we reverse the amounts of these awards because they are not supported by the record. We also reverse the equitable distribution award and remand for further proceedings because the trial court improperly determined that the Husband had dissipated marital assets. We affirm all other aspects of the final judgment without discussion.

Background Facts

The Husband and Wife had been married for over thirty-eight years when the Wife filed her petition for dissolution of marriage in November 2007. During the majority of the parties’ marriage, the Husband owned and operated a successful heating and air conditioning contracting business in Massachusetts. The Wife primarily raised the parties’ children, although she did provide some part-time office assistance to the Husband after the children reached school age.

During the marriage, the parties acquired several pieces of real property. In Massachusetts, the parties owned a residence located at 70 Munger Road in Chico-pee, which was the Massachusetts marital home; a duplex located at 75 Munger Road, which was leased to tenants; and a commercial property located on Doty Circle in Chicopee, which housed the parties’ contracting business. In Florida, the parties owned a residence on Clubview Circle in Venice, which was the former marital home. They also owned a residence on Tuscany Boulevard in Venice, which was the current Florida marital home. Finally, they owned a half-interest in a residence known as the “Hibiscus residence,” which the Husband had purchased with a partner to remodel and “flip.” None of these properties were encumbered by mortgages, and the parties were receiving $1300 per month in rental income from the 75 Munger Road duplex and $4000 per month in rental income from the Doty Circle commercial property.

In 2001, the parties sold their contracting business in Massachusetts and retired to Florida; however, they continued to spend most of the summer in Chicopee. The Husband soon grew bored with retirement, and he and a partner began purchasing properties in Venice, remodeling them, and reselling them. Then, in 2004, the Husband was approached by a friend who asked if he would be interested in being a construction consultant for a chain of grocery stores in the northeast. The Husband described this as his “dream job,” and he returned to work as a construction consultant in Massachusetts and Connecticut.

The evidence presented at the dissolution hearing showed that the Husband earned approximately $10,000 per month in his consultant position. He deposited this income into a Bank of America account in Massachusetts, which was in the name of Fred Buoniconti, Inc. The parties also had a joint account at Regions Bank in Florida. When the Wife filed her petition for dissolution, the Husband’s Bank of America corporate account held approximately $42,000 while the parties’ joint account at Regions Bank held approximately $60,000. In addition, the parties had numerous retirement and investment accounts, each containing substantial sums.

Before the Wife filed her dissolution petition, the Husband and Wife lived primarily in the Tuscany Boulevard home and spent their summers in the 70 Munger Road home. The Clubview Circle residence was vacant and for sale, as was the Hibiscus residence. After the Wife filed her petition for dissolution, the Husband moved out of the Tuscany Boulevard home and moved into the Clubview Circle residence with his paramour. He also moved out of the 70 Munger Road home and rented an apartment nearby. While the Husband was doing consulting work in Massachusetts, he stayed in the apartment, but he and his paramour lived permanently in the Clubview Circle residence. The Husband traveled frequently between Massachusetts and Florida so that he could see his paramour, and he paid for his paramour to fly to see him in Massachusetts on several occasions.

Between November 2007 and June 2008, the Wife received the $5300 per month rental income from the parties’ real properties and used that income to support herself. The Husband supported himself with the $10,000 per month income from his consulting position. Then, following a dispute between the parties in June 2008, the Husband unilaterally redirected the $4000 per month rental income from the Doty Circle commercial property from the Wife to himself. He subsequently sold the Doty Circle commercial property without notice to the Wife and received gross proceeds from the sale in excess of $550,000. At the time of the dissolution hearing, the net proceeds remained in an account titled solely in the Husband’s name.

After the Husband withdrew the rental income from the Doty Circle commercial property from the Wife in June 2008, she withdrew approximately $22,000 from the parties’ joint bank account, placed it in an account in her name, and used the funds to supplement her income and pay her living expenses during the remainder of the dissolution proceedings. She also used approximately $10,000 from the parties’ Smith Barney investment account for the same reasons.

In October 2008, the Husband’s consulting position was terminated due to slowdowns in the construction industry. The Husband had been aware as early as August 2008 that his position would be ending, but he took no steps to seek alternative employment. As of the date of the dissolution hearing in March 2009, the Husband was unemployed and living with his paramour in Florida. He testified that he had tried to find work in Florida but that his efforts were hampered by his lack of a Florida contractor’s license. He also testified that he had sent numerous ré-sumés to Fortune 500 companies nationwide, but he admitted that he would not move if he received a job offer from outside the Venice area.

Prior to the dissolution hearing, the parties resolved the majority of the issues between them. The trial court was asked to consider only the Wife’s claims for permanent and retroactive alimony and her claim that the liquid marital assets should be distributed unequally due to the Husband’s dissipation of certain marital assets during the marriage. At the close of the dissolution hearing, the trial court awarded the Wife permanent alimony payable as a lump sum as well as retroactive alimony. It also found that the Husband had dissipated marital assets, and it charged those dissipated assets to the Husband in its equitable distribution scheme. The Husband now appeals these awards, contending that they constituted an abuse of the trial court’s discretion because they were not based on competent, substantial evidence presented at the hearing.

Lump Sum Alimony

The Husband first contends that the trial court abused its discretion by awarding the Wife $261,240 in permanent alimony payable as a lump sum. This argument has two components: first, whether the Wife was entitled to permanent alimony payable as a lump sum rather than permanent periodic alimony; and second, whether the amount of alimony awarded was supported by the evidence. We affirm the Wife’s entitlement to permanent alimony payable as a lump sum, but we reverse the amount awarded and remand for further proceedings.

Entitlement

The seminal case regarding permanent alimony payable as a lump sum is Yandell v. Yandell, 39 So.2d 554 (Fla.1949). In that ease, the supreme court recognized that permanent alimony could be awarded “either in gross or by periodical payments.” Id. at 556 (quoting 27 C.J.S. Divorce § 235 (1949)). However, the court also noted that “the better practice is to direct periodic payments of permanent alimony and a lump award should be made only in those instances where some special equities might require it or make it advisable.” Id. Moreover, a lump sum award of permanent alimony “should never be made unless the husband is in a financial position to make payment of such gross award without endangering or actually impairing his economic status.” Id.

Since Yandell, courts have generally held that permanent alimony payable as a lump sum is appropriate only when there are special circumstances between the parties that make such an award advisable. See, e.g., Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980); Riscile v. Riscile, 370 So.2d 819, 821 (Fla. 2d DCA 1979); Hannon v. Hannon, 740 So.2d 1181, 1186 (Fla. 4th DCA 1999); Glazner v. Glazner, 693 So.2d 650, 652 (Fla. 5th DCA 1997). However, the question of whether permanent alimony payable as a lump sum is appropriate in any given case falls within the broad discretion of the trial judge. See Canakaris, 382 So.2d at 1202. This discretion will not be disturbed on appeal unless “ ‘no reasonable man would take the view adopted by the trial court.’ ” Id. at 1203 (quoting Delno v. Market St. Ry. Co., 124 F.2d 965, 967 (9th Cir.1942)).

Here, the parties agree that the Wife is entitled to some form of permanent alimony based on the length of the marriage and the parties’ decision that the Wife would not work full-time during the marriage. In deciding to award permanent alimony payable as a lump sum, the trial court found that the Husband had a “history of some unfair unilateral financial decisions, waste, and what appears to be a current reluctance to work.” Contrary to the Husband’s arguments, these findings are supported by the record.

There is no dispute that while the Husband was working and earning approximately $10,000 per month, he unilaterally and unjustifiably redirected the rental income from the Doty Circle commercial property to himself, thus depriving the Wife of the majority of the income she had used to support herself during the dissolution proceedings. Prior to this decision, the Wife had approximately $5300 per month with which to support herself while the Husband had approximately $10,000 per month. After this decision, the Wife’s monthly income was reduced to $1300 while the Husband’s was increased to approximately $14,000. This unilateral financial decision by the Husband was not only wholly unnecessary but it also forced the Wife to invade the parties’ retirement funds in order to support herself. The Husband also sold the Doty Circle commercial property without the Wife’s knowledge or consent. This evidence supports the trial court’s finding of unfair unilateral financial decisions by the Husband.

The evidence also showed that the Husband frequently flew back and forth from his job in Massachusetts to Florida so that he could see his paramour, and he also flew his paramour to Massachusetts to see him on several occasions. While the amounts expended for these flights may not have been great, this evidence supports the trial court’s finding of waste.

Finally, the evidence supported the trial court’s finding that the Husband had a “current reluctance to work.” While the Husband presented evidence that the parties intended to retire when they sold the contracting business and that he went back to work only because his “dream job” landed in his lap, there was also evidence that the Husband quickly grew bored with retirement and had, in actuality, been working ever since he “retired.” In light of this evidence, it was within the trial court’s purview to find that the Husband was currently “retired” solely for purposes of the dissolution hearing.

Based on these facts, it was not unreasonable for the trial court to suspect that the Husband might find ways to avoid the payment of any permanent periodic alimony it would award. Indeed, the Husband relied on his current unemployment to argue that his Wife of thirty-eight years was not entitled to any permanent alimony, or at best a nominal sum, because he had no ability to pay. However, the Husband had substantial liquid assets from which he could easily pay an award of permanent alimony as a lump sum. The availability of these liquid assets coupled with the Husband’s lack of current income constitute exactly the type of “special circumstances” necessary to support the trial court’s discretionary decision to award permanent alimony payable as a lump sum. See Sanders v. Sanders, 435 So.2d 372, 373 (Fla. 5th DCA 1983) (affirming an award of permanent alimony payable as a lump sum due to the availability of assets but a limited income stream and noting that “[i]f the husband had more earnings, an award of permanent periodic alimony would be appropriate”). On the record before us, we will not disturb this exercise of the trial court’s discretion.

At oral argument, counsel for the Husband argued that it was “unfair” to award permanent alimony as a lump sum because the Wife would get to keep the entire award even if she chooses to remarry or cohabit. See Canakaris, 382 So.2d at 1201 (noting that permanent alimony payable as a lump sum constitutes a vested right that is neither modifiable nor terminable upon the receiving spouse’s death or remarriage). We reject this “unfairness” argument for three reasons.

First, there was no evidence that the Wife sought permanent alimony payable as a lump sum because she was planning to remarry or cohabit. Instead, the only evidence of cohabitation was the Husband’s cohabitation with his paramour. Second, there is nothing “unfair” about a court of equity exercising its discretion to select from the range of available options, provided that the option chosen is supported by the evidence and can withstand the applicable standard of review. Third, the Husband cannot be heard to complain simply because his chosen financial strategy did not produce the desired result. The Husband’s course of conduct forced the trial court to choose between awarding the Wife nominal permanent periodic alimony or a reasonable amount of permanent alimony payable as a lump sum. The trial court chose to award permanent alimony payable as a lump sum. The fact that the Husband’s apparent strategy to avoid paying permanent alimony backfired is the risk he took when he chose that course of action. Absent legal error, a party’s failed strategy is not rectifiable on appeal.

Amount of Alimony

The amount of permanent alimony awarded, however, presents a different issue and requires reversal for reconsideration. The permanent alimony awarded by the trial court was calculated based on the Wife’s monthly need of $4354 multiplied by sixty months, which was the time remaining between the dissolution hearing and the Wife’s sixty-fifth birthday when she will be eligible to collect Social Security benefits. This total was $261,240.

However, in calculating the Wife’s monthly need, the trial court failed to consider the interest income that will be available to her from the liquid assets she is receiving as part of the equitable distribution. In Sharon v. Sharon, 862 So.2d 789 (Fla. 2d DCA 2003), this court held that a trial court is required to consider such income when determining the proper amount of permanent alimony if the parties present evidence of such income.

A court is required to impute income for earnings that can reasonably be projected based on liquid assets awarded as part of the property division. Greenberg v. Greenberg, 793 So.2d 52, 55 (Fla. 4th DCA 2001). Although they disagreed about the amount of the appropriate rate of return, both parties presented evidence concerning the income the Wife could reasonably expect to receive from her liquid assets. The final judgment does not reflect that the trial court took the Wife’s anticipated income from her liquid assets into account in determining the amount of permanent alimony the Husband was ordered to pay. On remand, the trial court should make findings concerning the amount of income the Wife can reasonably expect to receive on her liquid assets and take the Wife’s projected income into account in its redetermination of an appropriate award of permanent alimony.

Id. at 792.

Here, the Husband presented evidence that the Wife would be expected to earn 2 to 2⅜ percent each month on the approximately $500,000 in liquid assets that she would be receiving as part of the equitable distribution. This would give the Wife approximately $800 to $1000 per month in interest income. However, the final judgment does not mention this income, and it is not deducted from the amount established as the Wife’s monthly need. Because it is an abuse of discretion to award an amount of alimony that exceeds a spouse’s need, see Garcia v. Garcia, 25 So.3d 687, 690 (Fla. 4th DCA 2010), we must reverse and remand for a rede-termination of the amount of the Wife’s need for alimony in light of this unaccounted-for income.

In addition, since we are remanding for a redetermination of the amount of permanent alimony to which the Wife is entitled, we note that because the award was intended to function as a “prepayment” of the next five years’ worth of the Wife’s need, the trial court should have reduced the amount to present value, as argued by the Husband at the hearing and as the Wife’s accountant testified at the hearing. Although the trial court fully accepted the Wife’s accountant’s testimony, it did not reduce the lump sum award to present value in the final judgment. On remand, the trial court should address this present-value calculation as well.

Retroactive Alimony

The Husband also argues that the trial court abused its discretion by awarding the Wife retroactive alimony. As with the permanent alimony award, we affirm the trial court’s finding that the Wife was entitled to such an award, but we remand for reconsideration of the amount awarded.

An award of retroactive alimony, like any other award of alimony, must be based on the receiving spouse’s need for alimony and the paying spouse’s ability to pay. See Alpert v. Alpert, 886 So.2d 999, 1002 (Fla. 2d DCA 2004); Schellhammer v. Schellhammer, 687 So.2d 987, 989 (Fla. 5th DCA 1997); Hodge v. Hodge, 607 So.2d 510, 511 (Fla. 5th DCA 1992). When one spouse has sufficient income to pay alimony during the pendency of dissolution proceedings but instead decides to provide only nominal support, thus requiring the other spouse to invade marital assets for support, an award of retroactive alimony may be proper. See Alpert, 886 So.2d at 1002.

Here, the evidence showed that the Wife was fully able to support herself with the $5300 in rental income from the Doty Circle commercial property and the 75 Mun-ger Road residence from the date of filing in November 2007 until June 2008. At that point, however, the Husband unilaterally decided to keep the $4000 per month rental income from the Doty Circle commercial property, thus leaving the Wife with only $1300 per month in income. The Husband provided no support to the Wife from his now $14,000 per month income. Instead, as a practical matter, he required the Wife to support herself by supplementing her $1300 per month income with funds withdrawn from the parties’ joint bank accounts. On these facts, the trial court’s decision to award the Wife retroactive alimony is fully supported by the evidence presented at the hearing.

However, as with the amount of permanent alimony, the amount of retroactive alimony awarded is not supported by the evidence because it does not account for the Wife’s use of the Husband’s share of certain marital assets to support herself. The record shows that at the time of filing in November 2007, the Wife “controlled” a bank account at Regions Bank that contained $60,000. There is apparently no dispute that this was a joint account containing marital funds. After the Husband redirected the $4000 per month in rental income from the Doty Circle commercial property to himself, the Wife transferred at least $22,000 of the funds in the Regions Bank account into an account in her sole name, and she used those funds to support herself. She apparently also used another $10,000 that the parties had withdrawn from their joint Smith Barney account. The final judgment on its face does not account for the Wife’s use of the Husband’s one-half share of these marital funds.

In Welch v. Douglas-Welch, 800 So.2d 630, 630 (Fla. 2d DCA 2001), this court addressed a similar situation, stating:

Benjamin Welch appeals the final judgment of dissolution of his marriage to Anna Welch. He raises several issues in this appeal, but we find merit only in his argument regarding the trial court’s disposition of the parties’ joint savings account.
In the order granting Anna’s motion for temporary alimony, the trial court found that at the time of separation, Anna removed the $32,000 in the parties’ joint savings account and placed that amount in a separate account. The court further found that, as of the date of the hearing on Anna’s motion for temporary alimony, Anna had used all but $9000 of the parties’ joint savings. The trial court’s only reference to the parties’ joint savings account in the final judgment of dissolution is the incorporation of these findings from the order granting temporary alimony into that judgment and a finding that all bank accounts had already been divided between the parties.
Benjamin contends that he has not been given credit for Anna’s use of his share of the parties’ joint savings account. He requests that his obligation to pay Anna retroactive temporary alimony be offset by Anna’s use of his share of the parties’ savings.
The final judgment of dissolution is not clear with regard to the disposition of the parties’ joint savings account. See § 61.075(3), Fla. Stat. (2000). Accordingly, we remand the judgment for findings regarding the disposition of this marital asset, as well as consideration of whether the record supports any type of credit to Benjamin for Anna’s use of his share of the parties’ joint savings account.

In this case, as in Welch, the final judgment does not address whether the Husband should be entitled to credit against the award of retroactive alimony for the Wife’s use of the Husband’s “share” of the Regions Bank account or the Husband’s “share” of the Smith Barney funds during the dissolution proceedings. Accordingly, as in Welch, we reverse the amount of retroactive alimony awarded and remand for the trial court to determine whether any such credit is warranted in this case.

Dissipation of Marital Assets

Finally, the Husband contends that the trial court abused its discretion by unequally dividing the parties’ liquid marital assets based on a finding that he had dissipated marital assets. On this point, we agree.

This court has explained that the dissipation of marital assets occurs when “ ‘one spouse use[d] marital funds for his or her own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.’ ” Roth v. Roth, 973 So.2d 580, 585 (Fla. 2d DCA 2008) (alteration in original) (quoting Romano v. Romano, 632 So.2d 207, 210 (Fla. 4th DCA 1994)). To include a dissipated asset in the equitable distribution scheme, “there must be evidence of the spending spouse’s intentional dissipation or destruction of the asset.” Id. Simple mismanagement or squandering of an asset in a manner of which the other spouse disapproves does not constitute dissipation. Id. Neither does an imprudent or unwise investment decision. See Squindo v. Osuna-Squindo, 943 So.2d 232, 236 (Fla. 3d DCA 2006); Gentile v. Gentile, 565 So.2d 820, 823 (Fla. 4th DCA 1990), disapproved on other grounds, Acker v. Acker, 904 So.2d 384 (Fla.2005).

Here, the trial court found that the Husband had dissipated assets by flying back and forth from Massachusetts to Florida to see his paramour while he was working in Massachusetts. The trial court also found that the Husband’s decision to loan funds to his paramour constituted dissipation. Finally, the trial court found that the Husband’s decision to allow his paramour to live in the Clubview Circle residence rent-free constituted a dissipation of assets because the parties could have otherwise rented that residence to obtain additional income. We agree with the trial court that the Husband’s decision to expend marital funds solely for the purpose of providing airfare to and from Massachusetts for himself and his paramour might be considered dissipation of marital assets. The evidence shows that these expenditures totaled $739, and the trial court could properly account for this sum as a “dissipated asset.” However, the other two components of the trial court’s dissipation award do not constitute dissipation as defined.

Concerning the loan to the Husband’s paramour, the Husband’s act of lending his paramour $987 would usually be considered dissipation. See, e.g., Matti v. Matti, 647 So.2d 168, 170 (Fla. 2d DCA 1994) (holding that transfer of marital assets to the wife’s paramour constituted dissipation). However, the undisputed evidence in this case is that the Husband’s paramour had repaid these funds prior to the dissolution hearing. Since the funds were repaid, they were no longer “dissipated” funds that should be redistributed. Instead, those funds would have been present in a bank account or other investment account and thus were presumably accounted for when the parties divided those assets. Allowing the court to distribute them once when dividing the parties’ liquid assets and then again in the dissipation calculation was an improper double counting of these funds.

Finally, the Husband’s decision not to charge his paramour rent for the Clubview Circle residence cannot properly be considered dissipation. No one disputes that the Clubview Circle residence had been standing vacant and for sale for two years before the Wife petitioned for dissolution. At that point, she required the Husband to move out of the marital home on Tuscany Boulevard. He then moved himself and his paramour into the Clubview Circle residence.

Since the Clubview Circle residence had never been rented, the Husband’s decision to move into it with his paramour did not deprive the Wife of income she would have otherwise received. Further, there is no evidence that the Husband’s occupancy of the residence resulted in any destruction of the residence. The Husband’s decision to live in an otherwise vacant residence rather than renting it out does not constitute dissipation of the asset. At most, it constituted a decision not to increase marital income, which might be construed as an imprudent investment decision — not dissipation. In fact, the Husband’s decision seems prudent given the alternative of leaving the Clubview Circle residence vacant and renting yet another residence in Venice. On the whole, the Husband’s zero-sum option did not constitute a dissipation of assets.

Since there was no dissipation of assets from the Husband’s loan to his paramour nor his decision to live in the Clubview Circle residence, charging the Husband with these amounts as dissipated assets was an improper application of the law. Therefore, we reverse the equitable distribution award to the extent that it improperly charges the Husband with these amounts, and we remand for recalculation of this award.

Conclusion

In sum, we affirm the trial court’s finding that the Wife was entitled to awards of permanent alimony payable as a lump sum and retroactive alimony. However, we reverse the amounts of these awards and remand for reconsideration in light of this opinion. We also reverse the equitable distribution award and remand for recalculation in light of our holding concerning the dissipated assets. In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded for further proceedings.

WALLACE and CRENSHAW, JJ., Concur.


text:
    In re Petition of Jane DOE for a Judicial Waiver of Parental Notice of Termination of Pregnancy. Jane Doe, Appellant.
    No. 2D10-2464.
    District Court of Appeal of Florida, Second District.
    June 2, 2010.

      Jackson Stuart Flyte, Regional Counsel, Second District, and Dana Moore, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bar-tow, for Appellant.
   PER CURIAM.

Jane Doe a minor, challenges the final order dismissing her petition for judicial waiver of parental notification under section 390.01114(4)(c), Florida Statutes (2009). We reverse because the record before us does not support the circuit court’s conclusion that Doe was not sufficiently mature to decide whether to terminate her pregnancy. See In re Petition of Jane Doe, 932 So.2d 278 (Fla. 2d DCA 2005).

Section 390.01114(4)(c) requires the minor to establish by clear and convincing evidence that she is sufficiently mature to decide whether to terminate her pregnancy. In re Petition of Jane Doe, 932 So.2d at 280. Against this standard, the circuit court’s factual findings are inconsistent with the minor’s testimony. The record contains undisputed evidence that supports the petition: the minor is over seventeen years old; she earns good grades in challenging classes; she plans to attend college; she has consulted the alleged father and an adult relative about her decision; she has visited a medical clinic and understands the procedure, its possible side effects and risks of complication; she articulated what she plans to do in the event she experiences any complications, which is to tell her parents; she will pay for the procedure with her savings; and she has considered the alternatives to terminating the pregnancy. As in Doe, the circuit court’s order made no mention of the minor’s demeanor. Id. at 285.

We must therefore reverse the circuit court’s order, and Doe’s petition is deemed granted. See Fla. R.App. P. 9.110(n). The clerk shall place a certificate to this effect in the file and provide Doe with a certified copy. This court’s mandate shall issue simultaneously with this opinion, and no rehearing motion shall be entertained.

Reversed.

KELLY, VILLANTI, and LaROSE, JJ., Concur.

      . In the circuit court, the minor chose to be identified by her initials rather than a pseudonym. We have elected to use this pseudonym in place of the minor’s initials to further protect her privacy.


text:
    Kevin GOUKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3518.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2010.

      A. Randall Haas, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. See Connor v. State, 979 So.2d 852 (Fla.2007); Diaz v. State, 860 So.2d 960 (Fla.2003); Clines v. State, 765 So.2d 947 (Fla. 5th DCA 2000).

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


author: GROSS, C.J.

text:
    William BROWN, Appellant, v. Donna CANNADY-BROWN, Appellee.
    No. 4D09-458.
    District Court of Appeal of Florida, Fourth District.
    June 2, 2010.

      Airne Lynch, West Palm Beach, for appellant.
    No brief filed for appellee.
   GROSS, C.J.

We affirm the trial court’s denial of a motion for relief from judgment brought pursuant to Florida Rule of Civil Procedure 1.540(a). The motion sought to change a substantive provision of the order, not a “clerical mistake” that may be reached under the rule.

In a 2005 final judgment of dissolution, the circuit court ordered the former husband to pay $1,509.82 per month in child support and $2,000 per month in alimony. Concluding that the trial court erred in its imputation of income, this court reversed and remanded to the circuit court with directions “to revisit not only the former husband’s child support obligations, but also his obligations with respect to alimony and attorney’s fees.” Brown v. Cannady-Brown, 954 So.2d 1206, 1210 (Fla. 4th DCA 2007). After a hearing, on May 5, 2008, the circuit court ordered the former husband to pay $360.81 per month in child support “effective July 11, 2005.” In a separate paragraph, the court reduced the alimony obligation from $2,000 a month to “$1.00 a month subject to modification upon the Former Husband obtaining gainful employment.” Unlike the ruling on child support, the court’s order was silent as to the effective date of the $1.00 per month alimony obligation.

More than five months after the trial court issued its order on remand, the former husband filed a motion to “clarify” it. He contended that the child support ledger reflected past due alimony amounts exceeding $60,000, plus interest and penalties, from July 11, 2005 through 2008. He requested that the court amend its May 5 order to make the $1 per month alimony retroactive to July 11, 2005. A month later, the former husband filed a motion for relief from judgment under Florida Rule of Civil Procedure 1.540(a), which reasserted the same facts and request for relief contained in the earlier motion to clarify.

The trial court denied the former husband’s motion without explanation except to cite Solmo v. Friedman, 909 So.2d 560 (Fla. 4th DCA 2005). We construe the order as denying the motion because the former husband had waived the issue of the retroactive application of the new alimony determination by failing to raise it in a timely motion for rehearing or to alter or amend the judgment under Florida Rule of Civil Procedure 1.530, which provides a deadline of ten days. See Fla. R. Fam. L. 12.530.

In Malone v. Percival, 875 So.2d 1286, 1288 (Fla. 2d DCA 2004), the second district described the limits of rule 1.540(a) to correct errors other then “clerical mistakes”:

“A trial court may correct a clerical error ‘at any time on its own initiative’ pursuant to Florida Rule of Civil Procedure 1.540(a), but judicial errors, which include errors that affect the substance of a judgment, must be corrected within ten days pursuant to Florida Rule of Civil Procedure 1.530[ (g) ], or by appellate review.” Bolton v. Bolton, 787 So.2d 237, 238-39 (Fla. 2d DCA 2001). As stated in Byers v. Callahan, 848 So.2d 1180, 1184 (Fla. 2d DCA 2003), “[t]he ‘clerical mistakes’ referred to by Rule 1.540(a) are only ‘errors or mistakes arising from accidental slip or omission, and not errors or mistakes in the substance of what is decided by the judgment or order.’ Town of Hialeah Gardens v. Hendry, 376 So.2d 1162, 1164 (Fla.1979) (quoting Keller v. Bel cher, 256 So.2d 561, 563 (Fla. 3d DCA 1971)).”

In a family law case, the length of time that an obligation is to be paid is an error that affects the substance of a judgment; not a “clerical” mistake that can be corrected under rule 1.540(a). See Malone, 875 So.2d at 1288 (holding that the addition of a provision extending support beyond child’s eighteenth birthday “was substantive, not clerical”); Padot v. Padot, 891 So.2d 1079, 1084-85 (Fla. 2d DCA 2004) (holding that changing the period of retroactivity of sums owed to former wife was not a “clerical correction under rule 1.540”); Fuller v. Fuller, 706 So.2d 57, 59-60 (Fla. 4th DCA 1998) (holding that provision relieving father of obligation to pay child support during the summer was substantive provision and not an “omission or oversight” that could be corrected under rule 1.540(a)).

The former husband did not timely bring a motion under rule 1.530. Nor did he raise the issue of retroactivity of the alimony payments in a timely filed appeal. We affirm the trial court’s order denying the rule 1.540(a) motion.

POLEN and LEVINE, JJ., concur.