author: Gross, J.

text:
    Zedric JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1651
    District Court of Appeal of Florida, Fourth District.
    [November 14, 2018]
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   Gross, J.

Zedric Joseph entered his girlfriend's apartment and found her having sex with another man. He killed the man by stabbing him numerous times with a bread knife. He also held the knife to his girlfriend's throat and threatened her. She pushed it away with her hand, causing a severe laceration. She convinced him to leave, saying she would say that the incident was a robbery committed by an unknown perpetrator.

Once Joseph learned that law enforcement was looking for him, he fled. He was arrested at a hotel in Augusta, Georgia.

We write to address Joseph's challenge to the admissibility of his post-arrest statement to the police.

After Joseph was taken into custody, he was questioned by Detective Sabrina Tobey. The interrogation was videotaped and introduced at trial.

The defendant answered identifying questions and Detective Tobey read him his Miranda rights. When she asked, "Do you have any questions on that?" he responded, "Understood 100 percent." He signed a card waiving his rights.

The detective noticed the defendant's bandaged hand. She asked him what happened. He replied "football," explaining that the university hospital looked at it. Other evidence indicated that he had injured his hand while stabbing the victim.

The detective asked him to tell her about his "crazy week," and he explained that there was a warrant out for him for something that happened in West Palm Beach and that he heard the police were looking for him. He decided to flee because he needed to find out what was going on so he would not get blindsided. During the interrogation, the defendant evaded simple questions, like when he arrived in West Palm Beach and how he got around when he was there.

Joseph told the detective he had had an on and off relationship with his girlfriend for five years, that it had been "recently good," and that they had gotten back together at the beginning of 2014. He said he did not know if they were still together.

When the detective asked why he was in handcuffs, the defendant said, "I'm hoping to find out exactly from you all." Joseph avoided giving concrete answers and instead discussed the seriousness of the situation and how no one wanted to hear his side.

Joseph denied being in the girlfriend's apartment on March 7. The detective persisted, telling him that he walked in to find his girlfriend having sex with another man. They talked about whether the detective respected him and whether she had pre-judged him. She told him that she knew he was in the apartment and asked him to tell her what he saw and what he did and then she would respect him.

The basis of Joseph's motion to suppress arose from the following exchange:

Defendant: I don't think it will be -- I don't know the word for it, but I don't think it will be, like -- I don't want to say smart, but -- 'cause I don't want to try to make it seem like I'm here trying to be slick or something. So I don't really want to use the word smart, but I don't think it will be something for me to be, you know, maybe discussing certain things until maybe I get a lawyer.
Because, like you said, when you read the rights, like, you know, what you could say or something like that. Like, I don't want to say something and then have a -- I don't know. 'Cause that's what -- that's what lawyers do, they try to use anything you say and if they could twist it, they'll twist it, if they could flip it, they'll flip it. If they can make A seem like Z, they'll make A seem like Z.
And I'm not -- I don't have the intellect to know, like, what I should and what I shouldn't even be saying because I -- like I said, I've never been in anything this serious before, or anything serious, for that matter, like. So, I mean, this is new to me and I really don't know --
Detective: All right, man. Well, that's your prerogative.
Defendant: You know what I'm saying?
Detective: I mean, if you don't -- if you don't want to talk to me without a lawyer then I'm not going to talk to you.
Defendant: Would you advise me to ?
Detective: I can't tell you to advise -- I can't advise you to do anything. So --
Defendant: If you were in my shoes, would you? I mean --
Detective: I can't --
Defendant: I'm not trying --
Detective: I can't tell you whether you should or you shouldn't.
Defendant. Yeah, I understand.
Detective: If you want to speak to a lawyer, then I'm done. But then you -- you know, you don't get another chance to talk to me. So I'm out, okay?
[Detective Tobey exited room]

Seven minutes later, when the detective reentered the room, the following exchange occurred:

Defendant: What's your name again?
Detective: Detective Tobey.
Defendant: Tobey?
Detective: Yes. I want to clarify with you 'cause --
Defendant: I want to clarify something with you.
Detective: Okay.
Defendant: Detective Tobey --
Detective: Yes?

The defendant started talking about judging people again, and said that he needed to let her know that he is not a criminal and he is not a monster. The detective said she understood:

Detective Tobey: But I just want to know, okay, you said that you -- do you want to continue talking to me or do you want to talk to a lawyer? It's up to you.
Defendant: I mean, it depends what we're -- what we're talking about.
Detective: Well, I'm going to talk about why you're in here and what charges. And I'm going to talk about that.
Defendant: Okay.
Detective: So do you want to talk to me?
Defendant: I can -- I can talk to you about it. I mean, like I said, we can talk and, I mean, if I feel like it's something, I'll just say, you know, I don't feel like I should or not.
Detective: Okay. And you can't --
Defendant: But we can definitely --
Detective: You can't walk the line, I don't know if I should. If you don't want to answer something or you don't -- then you tell me, okay.
Defendant: Okay.
Detective: But don't -- don't -- don't walk the line. Don't say, oh, well, I'm not sure, I'm not this, I'm not that. Just tell me, okay? So do you want to talk to me?
Defendant: Yeah. If it's something I'll just straight up tell you --
Detective: Okay.
Defendant: -- like, no, this is not -- I don't want to talk about it, or I'll answer it, just like you said.

The detective resumed questioning the defendant about what happened in the girlfriend's apartment.

The defendant continued to dodge questions and talked about what happened the day before the attack. He eventually admitted that on the day of the attack he and the girlfriend were texting and that she stopped responding when she went to work. He said he was on the highway at that time, heading to the Swap Shop in Broward. This statement was contradicted by law enforcement testimony that the defendant's cell phone was never in Broward on March 7, 2014.

The defendant said when he was driving back from Broward, he "heard they were looking for me." He could not recall if it was dark out and told her that it was "whatever time they came to my house is around the time I was driving back."

He said he headed to Augusta, to the "country." He "googled" the hotel and checked in with someone else's ID. He commiserated some more about wishing people would understand that he wasn't a monster or a criminal. Another detective entered the room and began questioning the defendant about his hand. He confronted him bluntly and at that point, the transcript ends.

Before trial, the defendant moved to suppress the second half of the interrogation. The defendant argued that he unequivocally asserted his right to counsel and that "the detective did not scrupulously honor [his] invocation of his right to counsel."

The judge who presided over the motion to suppress hearing denied the motion, finding that the defendant did not unequivocally invoke his right to an attorney.

We review de novo the trial court's conclusions of law on the motion to suppress. Because the motion was denied based on the trial judge's review of a videotaped interrogation, this court "may review the tape for facts legally sufficient to support the trial court's ruling." Dooley v. State , 743 So.2d 65, 68 (Fla. 4th DCA 1999).

At the outset, we note that the argument the defendant raises on appeal differs somewhat from what he raised below. In the circuit court, he argued that he unequivocally asserted his right to counsel which triggered the officer's obligation to cease questioning. On appeal, he also bases his argument on Almeida v. State, 737 So.2d 520 (Fla. 1999), which holds that when a suspect asks a question concerning his Miranda rights, the police must stop interrogation and give a simple and straightforward answer before interrogation may continue.

It is clear that the defendant initially waived his Miranda rights. Once he waived those rights, the police were free to interrogate him.

A suspect may invoke a previously-waived right to counsel by clearly requesting counsel. Davis v. United States , 512 U.S. 452, 458, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). "If the suspect's statement is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him." Id. at 461-62, 114 S.Ct. 2350. The test of whether a suspect has unequivocally invoked his previously-waived Miranda rights is whether "a reasonable police officer in the circumstances would understand the statement to be a request for an attorney." Id. at 459, 114 S.Ct. 2350.

The defendant's musings quoted above amounted to thinking out loud about "maybe" retaining an attorney, not an unequivocal request for a lawyer that would have required that interrogation cease. Such aspirational statements are not unequivocal requests for counsel. Id. at 462, 114 S.Ct. 2350 (the statement, "Maybe I should talk to a lawyer," was not a request for counsel); Walker v. State , 957 So.2d 560, 571 (Fla. 2007) (the suspect's statement, "I think I may need a lawyer," and subsequent question asking detectives whether he needed counsel, were not unequivocal requests for an attorney); Long v. State , 517 So.2d 664, 667 (Fla. 1987) (the statement, "I think I might need an attorney" was equivocal); State v. Carter , 172 So.3d 538, 540 (Fla. 5th DCA 2015) (the statements, "I think I should wait to talk to my public defender," and "I mean I do [want to talk], but I don't think I should" did not constitute unambiguous or unequivocal requests for counsel); see also Spivey v. State , 45 So.3d 51, 54-55 (Fla. 1st DCA 2010) (statement, "I mean if I am being held and I'm being charged with something I need to be on the phone calling my lawyer," was not an unequivocal request for counsel because it "did not clearly indicate that [he] wanted counsel present at that time or that he would not answer any further questions without counsel.").

The defendant here was contemplating his situation. He talked about perhaps not answering certain questions until maybe getting a lawyer. He did not request an attorney. He did not refuse to answer questions without an attorney. The circuit court did not err in denying the defendant's motion to suppress because the defendant did not unequivocally and unambiguously invoke his right to counsel.

We also discern no violation of Almeida . If a suspect does not invoke his right to counsel, but instead, "asks a clear question concerning his or her rights, the officer must stop the interview and make a good-faith effort to give a simple and straightforward answer." Almeida , 737 So.2d at 525. "Once the officer properly answers the question, the officer may then resume the interview (provided of course that the defendant in the meantime has not invoked his or her rights)." Id.

"Custodial utterances are extraordinarily rich in diversity and include not only statements affirmatively invoking a suspect's rights but also statements prefatory to the invoking of a right." Id. at 523.

[A] prefatory statement is subject to the following three-step analysis: (1) was the defendant referring to a constitutionally guaranteed right; (2) was the utterance a clear, bona fide question calling for an answer, not a rumination or a rhetorical question; and (3) did the officer make a good-faith effort to give a simple and straightforward answer.

Daniel v. State , 238 So.3d 1283, 1287-88 (Fla. 5th DCA 2018).

On appeal, the defendant argues that his statements during the second half of the interview were involuntary because the detectives failed to give him honest and accurate answers to his bona fide questions about his right to an attorney. The defendant's argument fails for two reasons.

First, the defendant's argument was not made below, so it was not preserved. While the defendant moved to suppress part of his statement, the ground for the motion was different from the ground urged on appeal. "A defendant may not argue in the trial court that a consent was involuntary for certain reasons and then obtain a reversal on appeal on the ground that the consent was involuntary for other reasons." I.R.C. v. State , 968 So.2d 583, 589 (Fla. 2d DCA 2007).

Below, the defendant argued that he unequivocally invoked his right to counsel. The inquiry below, therefore, focused on the objective interpretation of the defendant's words to the police.

On appeal, the defendant's argument is that he asked a question about his right to counsel triggering the detective's duty to cease questioning and answer the question before continuing the interrogation. This part of the inquiry on appeal focuses on the appropriateness of the detective's response.

Trial counsel for the defendant did not cite Almeida and the trial judge did not consider the appropriateness of the detective's answers to the defendant's questions about counsel under Almeida and its progeny. The Almeida objection was not preserved because the specific legal argument pursued on appeal was not part of the presentation below. Perez v. State , 919 So.2d 347, 359 (Fla. 2005).

The second reason the defendant's argument fails is because his brief fails to pinpoint any "bona fide question" asked by the defendant and any improper response by the detective. At the pages quoted in appellant's brief, the single question the defendant asks the detective is whether she would advise him to get an attorney. She repeatedly states that she cannot give him legal advice, an entirely proper response.

To require officers to advise and counsel suspects would impinge on the officers' sworn duty to prevent and detect crime and enforce the laws of the state. All that is required of interrogating officers under Almeida and Owen is that they be honest and fair when addressing a suspect's constitutional rights.

State v. Glatzmayer , 789 So.2d 297, 305 (Fla. 2001). An officer may not evade the suspect's questions, engage in gamesmanship, or steamroll him. Almeida , 737 So.2d at 525 (where the suspect asked "what good is an attorney going to do?" the officer evaded the question by asking whether the suspect wanted to speak with him again).

Here, the detective did not evade the defendant's questions. She answered honestly--that she could not give him advice.

Because the detective responded in an appropriate manner to the defendant's questions about counsel, the detectives could continue the interrogation and there was no error in denying the defendant's motion to suppress.

We have considered the other arguments raised on appeal and find them to be without merit.

Warner and Levine, JJ., concur.

      Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: Warner, J.

license: Public Domain

text:
    The CITY OF PALM BEACH GARDENS, Petitioner, v. Louis F. OXENVAD, Carrie Gruber, Michael Gruber and Robert Kline, individually, Respondents.
    No. 4D18-1758
    District Court of Appeal of Florida, Fourth District.
    [November 14, 2018]
    R. Max Lohman and Abigail Forrester Jorandby of Lohman Law Group, P.A., Jupiter, for petitioner.
    Justus W. Reid of Reid Burman Lebedeker, West Palm Beach, for respondents.
   Warner, J.

The City of Palm Beach Gardens petitions for a writ of prohibition, seeking to prevent the circuit court from exercising certiorari jurisdiction in a challenge to an annexation ordinance. Specifically, the City contends that the respondent's petition was untimely filed, thus precluding the circuit court from exercising jurisdiction. We agree and grant the writ.

The City sought to annex a portion of land in Palm Beach County. After various public notices and hearings, the ordinance was passed on January 4, 2018. The ordinance called for a referendum vote. That vote took place on March 13, 2018, in favor of annexation. On April 12, respondents filed a Petition for Writ of Certiorari in the circuit court, sitting in its appellate capacity, challenging the annexation ordinance. The circuit court issued an order to show cause on May 8, 2018, ordering the City to respond as to why the relief in the petition should not be granted. The City then filed this petition seeking to prohibit the circuit court from proceeding further in the action. After considering the response, we conclude that the circuit court's jurisdiction was not timely invoked.

Prohibition lies to prevent a court from acting in excess of its jurisdiction. See English v. McCrary , 348 So.2d 293, 297 (Fla. 1977). A court "necessarily" determines its own jurisdiction by proceeding to act in a cause. Id. at 298. Here, because the circuit court issued an order to show cause, thus proceeding with the cause, it asserted jurisdiction and a conclusion that the petition was timely filed. However, "the untimely filing of a notice of appeal precludes the appellate court from exercising jurisdiction." See Peltz v. Dist. Court of Appeal, Third Dist. , 605 So.2d 865, 866 (Fla. 1992) (alteration added.); see generally English . Thus, a petition for prohibition appropriately challenges the court's exercise of its jurisdiction. Peltz , 605 So.2d at 866 ; see Rice v. Freeman , 939 So.2d 1144 (Fla. 3d DCA 2006) (granting prohibition where the circuit court sitting in its appellate capacity improperly exercised jurisdiction because no timely notice of appeal had been filed from a money judgment in the county court).

Section 171.081, Florida Statutes (2017), sets forth the procedure for challenging a municipal annexation.

(1) Any party affected who believes that he or she will suffer material injury by reason of the failure of the municipal governing body to comply with the procedures set forth in this chapter for annexation or contraction or to meet the requirements established for annexation or contraction as they apply to his or her property may file a petition in the circuit court for the county in which the municipality or municipalities are located seeking review by certiorari. The action may be initiated at the party's option within 30 days following the passage of the annexation or contraction ordinance or within 30 days following the completion of the dispute resolution process in subsection (2).

In SCA Services of Florida, Inc. v. City of Tallahassee , 393 So.2d 35, 36 (Fla. 1st DCA 1981), the court held that a prior version of this statute allowed a petition challenging an annexation ordinance to be filed thirty days from the passage of the ordinance, not the voter referendum. "The thirty day time limitation of section 171.081 is designed for the purpose of allowing any complaint challenging the procedures leading to passage of an annexation ordinance to be brought to the attention of a municipality prior to the expense of a referendum ." Id. at 36-37 (emphasis added). Furthermore, as also noted in SCA , "the limited judicial review envisioned by Section 171.081 neatly interacts with Section 171.0413(2)(a), Fla. Stat. (1979), which prohibits a municipality from scheduling a referendum to approve an annexation ordinance until thirty days following passage of the ordinance by the municipality." Id. at 37 (alteration added).

Although the statute now contains the word "may" as to when an action can be initiated, it is a choice between bringing a petition after passage of the annexation ordinance or after completion of a newly enacted dispute resolution process. It is not a choice to wait until after the referendum vote. The annexation ordinance in this case was passed on January 4, 2018. The respondents had thirty days from that date to file a petition challenging the ordinance. Instead, they waited until thirty days after the referendum vote to file their petition. This was well past the time allowed under the statute.

Because the language of the statute is clear, the circuit court was without jurisdiction to proceed with the untimely petition challenging the annexation ordinance. We therefore grant the petition, but withhold the issuance of the writ, confident that the court will dismiss the petition in accordance with the conclusion that its jurisdiction was not timely invoked.

Ciklin and Levine, JJ., concur.


author: Gerber, C.J.

text:
    Robert R. RAMSAY, Appellant, v. STATE of Florida, Appellee.
    No. 4D18-34
    District Court of Appeal of Florida, Fourth District.
    [November 14, 2018]
    Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Alexandra A. Folley, Assistant Attorney General, West Palm Beach, for appellee.
   Gerber, C.J.

The defendant argues that the trial court, after ordering a competency evaluation under Florida Rule of Criminal Procedure 3.210(b), erred in failing to conduct a competency hearing before a jury trial, resulting in the defendant's conviction and sentence on multiple charges. The defendant seeks a reversal of the jury verdict and sentence, and remand for a competency hearing before a new trial can occur.

The state concedes that the trial court erred in failing to conduct a competency hearing before the trial. See Charles v. State , 223 So.3d 318, 328 (Fla. 4th DCA 2017) ("Once the trial court appoints experts to examine the defendant's competency, the trial court may not proceed against the defendant without holding a competency hearing and ruling on the defendant's competency.").

However, the state argues that the proper remedy at this time is not a reversal of the jury verdict and sentence, but remand to allow the trial court to conduct a nunc pro tunc competency determination pursuant to Florida Rule of Criminal Procedure 3.212, if possible.

We agree with the state's requested remedy. We base our decision on controlling case law. As our supreme court held in Dougherty v. State , 149 So.3d 672 (Fla. 2014) :

[A] nunc pro tunc competency evaluation could be done where there are a sufficient number of expert and lay witnesses who have examined or observed the defendant contemporaneous with trial available to offer pertinent evidence at a retrospective hearing.... [S]hould the trial court find, for whatever reason, that an evaluation of [the defendant's] competency at the time of the original trial cannot be conducted in such a manner as to assure [the defendant] due process of law, the court must so rule and grant a new trial. Thus, the remedy for a trial court's failure to follow the procedures discussed above depends on the circumstances of each case.

Id. at 679 (internal citations and quotation marks omitted); accord Silver v. State , 193 So.3d 991, 993-94 (Fla. 4th DCA 2016) (same).

We have not based our decision on non-record information which the state included in its answer brief regarding an alleged competency evaluation completed before trial. As the defendant argues in his reply brief, the state's reliance on non-record information is wholly improper. Poteat v. Guardianship of Poteat , 771 So.2d 569, 573 (Fla. 4th DCA 2000).

Based on the foregoing, we remand to allow the trial court to conduct a nunc pro tunc competency determination, if possible. Should the trial court find, for whatever reason, that an evaluation of the defendant's competency at the time of the trial cannot be conducted in such a manner as to assure the defendant due process of law, the trial court must so rule and grant a new trial.

Remanded for proceedings consistent with this opinion.

Warner and Forst, JJ., concur.


author: Per Curiam.

text:
    IN RE: The NAME CHANGE OF Ronald Russell JOHNSON.
    No. 4D18-695
    District Court of Appeal of Florida, Fourth District.
    [November 21, 2018]
    Jason H. Haber of Haber | Blank, LLP, Fort Lauderdale, for appellant.
    No appellee.
   Per Curiam.

The petitioner appeals the circuit court's order denying his petition for a name change. The petitioner argues the circuit court erred in two respects: (1) by denying his facially sufficient petition without setting forth a factual basis for what appears, from the face of the order, to have been the circuit court's conclusion that he sought the name change for an ulterior or illegal purpose; and (2) by denying his request to have a court reporter record the hearing.

We agree with both arguments. See In re Zimmer , 207 So.3d 1006, 1007 (Fla. 4th DCA 2017) ("Where a trial court denies a facially sufficient petition [for name change], the factual basis for doing so must be set forth in its order."); Fla. R. Jud. Admin. 2.535(b) ("Any proceeding shall be reported on the request of any party.").

We reverse and remand for a new hearing before a different judge, as the prior judge has since left the bench.

Reversed and remanded for new hearing.

Gerber, C.J., Warner and Forst, JJ., concur.


author: Forst, J.

text:
    Homer MCABEE, III, Appellant, v. Alicia Marie MCABEE, Appellee.
    No. 4D17-3450
    District Court of Appeal of Florida, Fourth District.
    [December 12, 2018]
    Michael M. Giel of Giel Family Law, P.A. and Kyle A. Bedran of Bedran Law, Jacksonville, for appellant.
    Jonathan Z. Schiller of Brinkley Morgan, Fort Lauderdale, for appellee.
   Forst, J.

Homer McAbee, III ("the father") appeals from the trial court's final judgment of injunction to protect the parties' minor child from domestic violence. Pursuant to the final judgment, the trial court terminated the father's contact with the child for the rest of her minority.

The parties do not dispute, and we agree, that the trial court properly exercised its temporary emergency jurisdiction over the child under the Uniform Child Custody Jurisdiction and Enforcement Act ("UCCJEA"). However, what we have here is a failure to communicate, as the Florida trial court failed to consult with the Virginia court-where custody proceedings had been ongoing for years, and which had made a custody determination just two months earlier-before making its own custody determination, in violation of a mandatory directive of the UCCJEA. The trial court's failure to communicate with the Virginia court before making a custody determination requires that we remand for further proceedings.

Background

A full recitation of the facts is necessary to demonstrate the purpose of the UCCJEA and why its communication requirement is vital.

The father and Alicia Marie McAbee ("the mother") married in South Carolina in 2007, and divorced in Virginia in 2015. They have one daughter ("the child"), born in 2009.

At issue are the mother's allegations that the father sexually abused the child-at age 3 in Virginia, and age 6 in Florida. The mother first alleged the sexual abuse in 2012, around the time the parties separated. At that time, the father admitted to sexually abusing the child in graphic detail in letters to the mother and journal entries (collectively, "the father's writings"). The father also documented having a "sex addiction." The father later denied the sexual abuse, claiming he falsely admitted to it only after the mother's interrogations and threats. He further claimed the sex addiction was a reaction to medication he was taking at the time.

The mother filed for custody in Virginia in 2013. The father underwent psychological and sexual addiction evaluations, and the parties received counseling from a psychologist. The psychologist concluded the father was no threat to the child and recommended contact.

The father moved to Jacksonville, Florida in January 2014, and filed for divorce in Virginia that April. The mother and child moved to Orlando (Orange County, Florida) in May 2014, where they remained until August 2016.

The Virginia court heard the father's motion for visitation in July 2014. The mother had refused him contact with the child for 575 days. She objected to visitation based on the father's writings, in which he described violent, forcible abuse on the child, including penetration. The father testified about the mother's interrogations and threats that, unless he admitted everything she accused him of, he would go to jail, lose his job and never see his daughter again. The Virginia court also heard from the father's psychologist and sexual disorder specialist. The mother argued the father's writings proved abuse, but the judge noted that the allegation of abuse "wasn't corroborated" by either the interviews conducted by Child Protective Services, or the child's examination by a sexual assault nurse examiner ("SANE" nurse). The Virginia court granted the father supervised visitation.

Two months later, the mother petitioned for relief in Orange County, Florida. The Orange County court conferred with Virginia pursuant to the UCCJEA and dismissed the proceedings for lack of jurisdiction.

In early 2015, after an evidentiary hearing on the abuse claims and the father's writings-which included testimony of the father's neuropsychologist and a videotaped portion of the mother's "interrogation" of the father-the Virginia court concluded that no sexual abuse had occurred. Accordingly, in April 2015, the Virginia court entered a custody order giving graduated visitation to the father. Specifically, after four supervised visits, upon the written recommendation of the court-appointed doctor, the father would have visitation every other weekend. If necessary (i.e., absent the parties' agreement), the court would consider further extending the father's visitation after August 2015.

The mother filed more Florida petitions in October 2015. She again relied on the father's writings, but added claims that he had abused the child in Florida in 2015. The Orange County court denied the petitions, noting its previous dismissal for lack of jurisdiction, and stating that time-sharing issues should be addressed in the parties' Virginia divorce proceeding.

The following month, the Virginia court was to hear the appropriateness of extending the father's visitation, as referenced in its April 2015 order, and the father's motion for emergency transfer of custody. After the hearing, the court entered its final order of divorce. The order provided that the April 2015 custody order "remains in effect" and, because of the mother's Florida filings, reserved for later determination the father's transfer of custody motion.

In March 2016, the Orange County court again declared that it lacked jurisdiction, and that Virginia retained it. Several months later, at a UCCJEA hearing to address the mother's action to register the Virginia divorce decree, the Orange County court ruled, yet again, that Virginia retained jurisdiction over modification. After that hearing, the mother fled to South Carolina with the child, without notice to the father or the court. The record reflects that the mother and child lived in South Carolina from August 2016 to April 2017.

The Virginia court entered an April 2, 2017 order on the father's amended emergency motion to transfer custody. The order awarded the father sole physical and legal custody of the child, effective immediately, based on the following findings:

• the initial supervised visitation was done pursuant to the court's April 2015 custody order, and the child's therapist supported increased visitation;
• the April 2015 order provided for review of visitation after August 2015;
• the review had not occurred but was reserved, along with the father's emergency motion, in the November 2015 order and both were properly before the court for determination on the merits;
• related proceedings occurred in Orange County, Florida-however, after the Virginia and Florida courts conferred regarding jurisdiction, Florida deferred to Virginia which retained jurisdiction over custody;
• the mother violated the April 2015 custody order as perpetuated by the November 2015 divorce decree by removing the child from Florida and secreting her elsewhere (South Carolina)
without notice or communication to the court or to the father, and denied the father access to the child as required by the court's orders, and;
• the mother was personally served with timely notice of the subject hearing.

Based on these findings, the Virginia court held that the mother's "unjustifiable conduct in removing [the child], secreting her, and denying the Father visitation violates [the child's] best interests and the orders of this Court ...." It thus ordered that the child have no contact with the mother pending further ruling.

The mother did not appeal the April 2017 Virginia order. Instead, in May 2017, she sought a protective order in South Carolina. The South Carolina court denied the petition, finding "the VA order controls" and that "[o]rders presented this date clearly show that UCCJEA conferences have been held and that VA continues to retain jurisdiction ...."

On June 2, 2017, the mother filed the underlying Broward County petition, again alleging the father had sexually abused the child and referencing some of his writings. The mother further alleged that the father "has somehow, without notice to me gone to a VA court," without telling the Virginia court "about the open Family court case in Orlando." She attached to her petition a stale shelter order from the Orange County dependency proceedings. The trial court granted a temporary injunction and set a hearing. The father successfully moved to vacate the temporary injunction, and on June 13, 2017, the court ordered the mother to return the child by noon that day. The mother did not return the child, however, and approximately fifteen minutes before the noon deadline, a maternal relative brought the child to a local police department where the child reported for the first time to a law enforcement officer that her father had sexually abused her.

The father moved to dismiss the Broward County petition, arguing res judicata among other things. The father also requested that the court take judicial notice of the previous Virginia, South Carolina and Orange County, Florida orders. At the start of the three-day hearing, the court denied the motion to dismiss and addressed the mother's notice of intent to offer child hearsay statements-including the child's recent, first-time disclosures to a police officer and 2013 and 2015 statements to her godmother. After the police officer, the godmother and both parties testified, the court ruled the child hearsay was admissible, and found "it really incredulous to believe that [the father] could be forced under any circumstances to make these statements where he acknowledges abusing his daughter, and with the specifics that he did and the manner that he did." The trial court then entered its final judgment of injunction-effective until March 2, 2027-finding the child "is the victim of domestic violence or has reasonable cause to believe that [she] is in imminent danger of becoming a victim of domestic violence" by the father. The trial court also ordered that the child have no contact with the father.

In seeking rehearing, the father argued res judicata and improper admission of child hearsay. For the first time, he also argued the trial court was required to communicate with the Virginia court under the temporary emergency jurisdiction statute and collateral estoppel. The trial court denied rehearing and this appeal followed.

It is undisputed that the parties and child have not lived in Virginia since 2014, and that Florida was not the child's "home state" at the time of the proceedings below, with the mother and the child having just returned to the state only a week or so before the mother filed her petition. The issue we address on appeal is whether the Seventeenth Circuit (FL) trial court should have conferred with the Virginia court before making a custody determination.

Analysis

The father argues the trial court erred by not immediately contacting the Virginia court upon learning of its custody orders, in violation of the UCCJEA. We agree and remand for further proceedings.

"The UCCJEA is a jurisdictional act that governs subject matter jurisdiction over child custody matters." M.A.C. v. M.D.H. , 88 So.3d 1050, 1053 (Fla. 2d DCA 2012). Whether a court has subject matter jurisdiction pursuant to the UCCJEA is a question of law reviewed de novo. In re D.N.H.W. , 955 So.2d 1236, 1238 (Fla. 2d DCA 2007).

The UCCJEA provides for temporary emergency jurisdiction over child custody "if the child is present in this state and ... it is necessary in an emergency to protect the child because the child ... is subjected to or threatened with mistreatment or abuse." § 61.517(1), Fla. Stat. (2017). Here, the parties do not dispute that the child was physically present in Florida when the mother filed the underlying petition alleging sexual abuse. Thus, we agree that the trial court had emergency temporary jurisdiction over the matter.

However, the UCCJEA also provides that

[a] court of this state which has been asked to make a child custody determination under this section, upon being informed that a child custody proceeding has been commenced in, or a child custody determination has been made by, a court of a state having jurisdiction under ss. 61.514-61.516, shall immediately communicate with the other court....

§ 61.517(4), Fla. Stat. (emphasis added).

" 'Child custody proceeding' means a proceeding in which legal custody, physical custody, ... or visitation with respect to a child is an issue," and "includes a proceeding for divorce, separation, ... abuse, ... and protection from domestic violence, in which the issue may appear." § 61.503(4), Fla. Stat. " 'Child custody determination' means a judgment, decree, or other order of a court providing for the legal custody, physical custody, residential care, or visitation with respect to a child. The term includes a permanent, temporary, initial, [and/or] modification order." § 61.503(3), Fla. Stat. Here, it cannot be disputed that a child custody proceeding had commenced in Virginia (as early as 2013), and that a custody determination had been made by a Virginia court-most recently, in April of 2017.

At the hearing below, the trial court acknowledged it "ha[d] seen the orders from Virginia." However, the record provides no evidence that the court ever communicated with the Virginia court-much less, that it had "immediately communicate[d]" with the Virginia court, as required by section 61.517(4).

Mandatory words impose a duty. ANTONIN SCALIA & BRYAN A. GARNER, READ

ING LAW: THE INTERPRETATION OF LEGAL TEXTS 112 (2012). In S.R. v. State , 346 So.2d 1018 (Fla. 1977), the word "shall" was held to be mandatory in a statute stating a "petition alleging delinquency shall be dismissed with prejudice" if it was untimely filed, even though the implementing rule of juvenile procedure provided the petition "may" be dismissed. Id. at 1019. The court stated that whether "shall" is mandatory "depends upon the context in which it is found and upon the intent of the legislature as expressed in the statute." Id. Section 61.517(4), Fla. Stat. provides no indication that the legislature intended to give the Florida trial courts discretion whether to contact the sister court before holding a hearing and rendering a decision. "[S]hall immediately communicate" is a mandatory directive.

The statute ensures that the court exercising temporary emergency jurisdiction-which has only a snapshot of information pertinent to the custody determination-obtains the knowledge of the other court to make the best decision possible for the child. Such knowledge is especially important in a case such as this that has involved a years-long contentious custody dispute, heinous allegations of abuse, and the exact opposite custody determination from the other court just two months prior.

The appropriate remedy for the trial court's failure to immediately communicate with the Virginia court is to remand this matter for the Seventeenth Judicial Circuit Court to contact the Virginia court pursuant to section 61.517(4). This course of action is supported by precedent from the Fifth District Court of Appeal. See Earney v. Quiloan , 206 So.3d 147, 150 (Fla. 5th DCA 2016) ("[B]ecause the trial court failed to satisfy the contact requirement imposed by section 61.517(4), we remand with instructions that the Florida court contact the Texas court to resolve any conflicts that exist between the Texas divorce decree and the Florida order suspending timesharing."); Steckler v. Steckler , 921 So.2d 740, 745 (Fla. 5th DCA 2006) (affirming trial court's temporary emergency jurisdiction determination, but remanding for contact with the out-of-state court).

Conclusion

The record lacks any indication that the trial court followed the requirements of section 61.517(4), which mandated that the court communicate with the Virginia court as part of its exercise of temporary emergency jurisdiction. Accordingly, we remand this matter for compliance with the statute. See Steckler , 921 So.2d at 745. Because the remand proceedings may require the trial court to revisit its rulings made before final judgment, we do not consider the points raised on appeal as to those issues. Custody of the minor child shall remain with the mother pending the court's compliance with section 61.517(4), and any order directing a change in custody.

Affirmed in part, and remanded with instructions .

Gerber, C.J., and Warner, J., concur.

      Section 61.517, Fla. Stat. (2017).

      Home state is defined as "the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.... A period of temporary absence of any of the mentioned persons is part of the period." § 61.503(7), Fla. Stat. (2017).

      To the extent any contact was made with the Virginia court, the Florida trial court failed to make a record and inform the parties of the communication, as required by section 61.511(4), Fla. Stat. (2017).


author: Taylor, J.

text:
    Cheryl A. KENNEY f/k/a Cheryl Kenney-goff, Appellant, v. Robert A. GOFF, Appellee.
    No. 4D17-2094
    District Court of Appeal of Florida, Fourth District.
    [ December 12, 2018 ]
    Sue-Ellen Kenny and Scott D. Glassman of the Law Office of Scott Glassman, P.A., West Palm Beach, for appellant.
    Angela D. Flaherty of the Flaherty Law Firm, Sarasota, for appellee.
   Taylor, J.

The former wife, Cheryl Ann Kenney, appeals a post-judgment "Order on Multiple Matters," which: (1) directed the clerk of the circuit court to make adjustments to the Child Support Enforcement ("CSE") ledger; (2) purported to clarify the parties' final judgment of dissolution of marriage on the issue of whether a "lump sum rehabilitative alimony" obligation represented spousal support or equitable distribution; and (3) directed the clerk to report the file as "closed" for statistical purposes.

The wife raises five issues on appeal. We write to address the wife's first issue-namely, that the trial court erred in treating the lump sum rehabilitative alimony awarded in the dissolution judgment as being in the nature of a property settlement. On this issue, we reverse. As to the remaining issues, we affirm without further comment as to Issues II, III, and IV, and find that Issue V is not ripe for our consideration.

Facts

The parties married in 1986. In 2004, the trial court entered a final judgment of dissolution of marriage. The final judgment incorporated the parties' Marital Settlement Agreement ("MSA"). Pursuant to the MSA, the husband agreed to pay child support for the parties' children. The husband also agreed to pay "Lump Sum Spousal Support" as follows:

5. LUMP SUM SPOUSAL SUPPORT . The parties hereto do specifically agree that the Husband shall pay directly to the Wife as full and final settlement of all claims between the parties for spousal support, property settlement and all other matters, lump sum rehabilitative alimony in the amount of THREE HUNDRED SIXTY THOUSAND AND 00/100 DOLLARS ($360,000.00), payable as follows: the sum of THREE THOUSAND THREE HUNDRED THIRTY-THREE AND 33/100 DOLLARS ($3,333.33) per month on the 1st day of each month for a period of 108 months, commencing June 1, 2003. There shall be a $50.00 late charge for all payments not received by the 5th day of each month that a payment is due.
Said amount due to the Wife is non-modifiable by either party regardless of any changes in their respective incomes, death or remarriage. This obligation to pay lump sum alimony does not terminate on and shall survive the death of Husband, and shall be a binding obligation on the estate of Husband. Said payments are not taxable for the Wife nor deductible by the Husband.

The parties further agreed that this obligation was not subject to discharge in bankruptcy.

In the MSA, the parties agreed to the following terms regarding the division of assets and liabilities: (1) to sell their house and divide the net proceeds; (2) to divide their personal property and vehicles; (3) to equitably divide their bank and investment accounts, with the wife making an equalizing payment to the husband of $6,500; and (4) to split all marital debt by mutual agreement. The MSA also stated the following in a provision governing the parties' obligations: "[The husband] has started two businesses in Florida, and intends to start more. He agrees to hold [the wife] harmless from all of the debts and other obligations and liabilities of these business entities. [The wife] waives any right or interest in any such business entities."

From 2008 through 2011, the trial court entered a series of final judgments against the husband for arrearages on his obligations under the dissolution judgment.

Meanwhile, in 2009, the husband received a Chapter 7 bankruptcy discharge. In the bankruptcy proceeding, the husband reported having "Domestic Support Obligations" of over $287,000, consisting of past due spousal support and child support. However, the husband's obligation under paragraph 5 of the MSA was not discharged in his bankruptcy.

Subsequently, after extensive post-dissolution litigation in the trial court, the husband appealed an order denying his motion to vacate two separate orders addressing support obligations. See Goff v. Kenney-Goff , 145 So.3d 928, 929 (Fla. 4th DCA 2014) (" Goff I "). We reversed and remanded "the portion of the order requiring the husband to continue to pay support for [the parties' youngest] child." Id. at 930.

After the case was remanded, the presiding magistrate ordered the clerk of court to perform an audit, issue a written report, and make adjustments to the CSE ledger. The magistrate also ordered the parties to file written responses identifying their positions with regard to any adjustments or terms established by the clerk of court.

The husband filed a response to the audit and a "renewed motion for clarification and/or request to amend and correct the parties' case ledger." The husband requested the trial court to clarify that Paragraph 5 of the MSA should be treated as equitable distribution rather than spousal support.

The wife filed a response to the husband's renewed motion for clarification. Among other things, the wife argued that, under the plain language of the MSA, the lump sum alimony was spousal support, not equitable distribution.

At an evidentiary hearing before the magistrate, the evidence showed the following facts relevant to this opinion. During the marriage, the wife was the primary caretaker of the children, while the husband was the breadwinner for the family. However, the husband had no earned income at the time he entered into the MSA, as he had just been laid off from a job.

Prior to entering into the MSA, the husband had incorporated two new businesses and had entered into contracts whereby "existing businesses would transfer their assets" to the husband's businesses. However, the husband admitted that the transfer of assets did not occur until "[a]fter the marital settlement agreement was signed." The husband explained: "The contracts had been signed, it was waiting for monies to be paid."

The husband also testified that he unsuccessfully attempted to modify the lump sum alimony obligation after he filed for bankruptcy. Prior to consulting with his current counsel, the husband interpreted Paragraph 5 of the MSA as "a lump sum spousal support obligation." When asked whether the lump sum payment had anything to do with the exchange of a property interest, the husband responded: "It may have. I do not recall." However, the husband testified that the wife was aware that he was pursuing various business interests when the parties entered into the MSA.

Similarly, the wife testified that, at the time the parties signed the MSA, the husband had started the process of buying two businesses. However, the husband did not close on the businesses until after the MSA was signed and the parties had split their marital funds.

After the hearing, the magistrate eventually entered an amended report and recommendations, issuing findings of fact and conclusions of law that the trial court later adopted. The wife filed exceptions to the magistrate's report, which the trial court denied.

The trial court ultimately entered its Order on Multiple Matters, adopting the magistrate's recommended order. Consistent with the magistrate's report, the trial court found that the lump sum payment under Paragraph 5 of the MSA was in the nature of a property settlement or equitable distribution. The trial court further ruled that because the lump sum payments was for an equitable distribution obligation, it never should have been included as part of the CSE ledger. The trial court thus directed the clerk of court to make various adjustments to the CSE ledger. This appeal ensued.

Parties' Arguments

On appeal, the wife argues that the trial court erred in its determination regarding the character of the "lump sum rehabilitative alimony" in the MSA. The wife maintains that the parties' MSA describes the payments as "lump sum rehabilitative alimony," that there is no ambiguity in the term alimony, and that there is no mention of an equalizing payment which would be considered as part of an equitable distribution scheme. The wife further contends that the alimony provision, when viewed in the context of the entire MSA, was not considered equitable distribution. The wife complains that the trial court did not engage in an analysis of the parties' intent at the time the parties entered the MSA.

The husband responds that the factual findings adopted by the trial court were supported by competent substantial evidence. The husband contends that Paragraph 5 of the MSA clearly indicated that the husband would pay the wife an equalizing payment for the resolution of all claims, including property settlement. The husband asserts that he had started businesses prior to the execution of the MSA and that he received those businesses as part of the overall equitable distribution scheme in exchange for the lump sum payment. The husband also points out that the lump sum payment was non-modifiable, survived his death, and was not taxable to the wife.

Standard of Review

The interpretation of a marital settlement agreement, like any other contract, is reviewed de novo. Feliciano v. Munoz-Feliciano , 190 So.3d 232, 233-34 (Fla. 4th DCA 2016). "Where the terms of a marital settlement agreement are clear and unambiguous, the parties' intent must be gleaned from the four corners of the document." Levitt v. Levitt , 699 So.2d 755, 756-57 (Fla. 4th DCA 1997). However, where a marital settlement agreement is ambiguous, a court may consider extrinsic evidence as well as the parties' interpretation of the contract. Id. at 757.

A trial court's decision to accept or reject a magistrate's conclusions is reviewed for an abuse of discretion. Glaister v. Glaister , 137 So.3d 513, 516 (Fla. 4th DCA 2014). However, an appellate court will review de novo the trial court's decision that the magistrate's findings of fact "are supported by competent, substantial evidence and are not clearly erroneous while giving both the magistrate and the trial court the benefit of the presumption of correctness." Id. (quoting In re Drummond , 69 So.3d 1054, 1057 (Fla. 2d DCA 2011) ).

Analysis

"Lump sum alimony may provide for equitable distribution of property or for support." Pipitone v. Pipitone , 23 So.3d 131, 136 (Fla. 2d DCA 2009). While a support award can be enforced by contempt proceedings, an award for equitable distribution or property division cannot. Braswell v. Braswell , 881 So.2d 1193, 1198 (Fla. 3d DCA 2004). "The remedies available to enforce an equitable distribution or property division award are those available to creditors against debtors." Id.

Courts look to the substance of the underlying obligations and are not bound by the parties' characterization. Id. at 1200. "The trial court should assess whether (1) alimony payments are made in exchange for a property interest, (2) the payments are modifiable, (3) the payments terminate upon remarriage or death, and (4) the payments are deductible from the payor's federal income tax and taxable to the payee." Pipitone , 23 So.3d at 136.

As to the first factor, a conclusive test to determine whether periodic payments constitute equitable distribution payments or support payments is "whether they are made in exchange or consideration for a transfer of property interests." Id. "The lack of evidence suggesting that the payments are in exchange for property rights or obligations renders contempt an available remedy for nonpayment." Id. at 137.

As to the second factor, "[b]ecause lump sum alimony may be used for support, but is always nonmodifiable, the nonmodifiability of the payments is not a reliable indicator that they are intended as equitable distribution." Id. Additionally, parties can agree to nonmodifiable support in a settlement agreement. Id.

As to the third factor, "language providing termination of payments upon death or remarriage is consistent with support alimony." Id. However, "parties can agree to support payments to continue after the obligor's death." Id.

As to the fourth factor, a provision that alimony payments are deductible to the obligor and taxable to the recipient "for federal income tax purposes may indicate that the payments are for support." Id.

In this case, the MSA as a whole, coupled with the testimony concerning the parties' intent, confirms that the "lump sum rehabilitative alimony" constituted spousal support rather than equitable distribution. We must look to the substance of the provision, rather than the parties' label of "rehabilitative" alimony.

To be sure, the lump sum rehabilitative alimony is nonmodifiable, survives the husband's death, and is not deductible by the husband. However, while the second, third, and fourth factors of Pipitone weigh in favor of the husband's argument that the lump sum alimony should be treated as equitable distribution, these factors are far less significant than the first factor. The second, third, and fourth factors are less reliable indicators of the nature of the obligation, since parties can always agree to support obligations that are nonmodifiable, nonterminable upon death, and nondeductible.

Instead, the conclusive factor under Pipitone is whether the lump sum alimony payments "are made in exchange or consideration for a transfer of property interests." Id. Here, Paragraph 5 of the MSA states that the "lump sum rehabilitative alimony" constituted a "full and final settlement of all claims between the parties for spousal support, property settlement and all other matters."

Nonetheless, when the MSA is read as a whole and is examined in conjunction with the parties' testimony, it is clear that the lump sum rehabilitative alimony was intended exclusively as spousal support. There was no evidence indicating that the alimony payments were in exchange for any valuable property rights or obligations. Paragraph 5 of the MSA was independent of the equitable distribution scheme. In other provisions of the MSA, the parties had equitably distributed all of their marital property, including their personal property, their financial accounts, and the proceeds from the expected sale of their home.

Although the MSA stated that the wife waived any interest in the husband's businesses, the parties' testimony confirms that the husband's businesses had no significant value at the time the parties entered into the MSA. The husband's businesses were not operating at the time the parties executed the MSA, and the husband admitted that he had no earned income at that time. Indeed, although the husband had filed paperwork to incorporate his businesses and had signed contracts to purchase the assets of other businesses prior to signing the MSA, he admitted that the transfer of assets did not occur until after the parties signed the MSA.

Likewise, the wife testified without contradiction that, while the husband had started the process of buying two businesses at the time of the execution of the MSA, the husband did not close on his purchase of the businesses until after the parties had signed the MSA and split their marital funds. Thus, the wife did not have any interest in the assets of the businesses that the husband purchased after the parties signed the MSA.

In sum, because the MSA and the record evidence reflect that the lump sum rehabilitative alimony was independent of the equitable distribution scheme and was not in exchange for any valuable property rights, the lump sum rehabilitative alimony constituted spousal support.

Conclusion

We reverse the Order on Multiple Matters and remand for the trial court to treat the lump sum alimony as spousal support rather than equitable distribution and to conduct any further proceedings not inconsistent with this opinion.

Reversed and Remanded .

Klingensmith and Kuntz, JJ., concur.

      On Issue V, the wife argues that the trial court erred by entering a judgment subsuming all of the prior arrearage judgments against the husband, thereby denying the wife interest on the prior judgments. However, we find that this issue is not ripe because the trial court has not yet entered any money judgment subsuming all of the prior arrearage judgments.

      The "lump sum rehabilitative alimony" was not dischargeable under Chapter 7 regardless of whether it was characterized as spousal support or equitable distribution. See 11 U.S.C. § 523 (5), (15) (2009) (excluding from dischargeability under Chapter 7 any "domestic support obligation" and any debt to a spouse or former spouse "that is incurred by the debtor in the course of a divorce or separation or in connection with a separation agreement, divorce decree or other order of a court"); In re Okrepka , 533 B.R. 327, 333 & n.16 (Bankr. D. Kan. 2015) (under the 2005 amendments to the bankruptcy code, while a property settlement in divorce is dischargeable in a Chapter 13 bankruptcy, a property settlement in divorce is not dischargeable in a Chapter 7 bankruptcy).

      The wife suggests that in Goff I , this court rejected the husband's argument that paragraph 5 of the MSA constituted equitable distribution. Having reviewed the opinion and briefs in Goff I , we conclude that the issue concerning the proper interpretation of paragraph 5 of the MSA was not resolved in Goff I .

      The wife also raises an equitable estoppel argument based on the husband's representations in bankruptcy court, but our resolution of this case makes it unnecessary to address that argument.

      By the same token, the absence of a rehabilitation plan does not preclude a finding that the "lump sum rehabilitative alimony" was in the nature of spousal support. "[I]t is well settled that in a dissolution of marriage proceeding, the parties are free to agree to obligations the trial court could not order in the absence of an agreement." Taylor v. Lutz , 134 So.3d 1146, 1148 (Fla. 1st DCA 2014).