text:
    Jacqueline HILL, Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 2D07-2311.
    District Court of Appeal of Florida, Second District.
    May 7, 2010.

      Raymond T. Elligett, Jr., of Buell & Elligett, P.A., and David J. Pettinato of Merlin Law Group, P.A., Tampa, for Appellant.
    Lee Craig, Anthony J. Russo, and Curt Allen of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Appellee.
   ALTENBERND, Judge.

Jacqueline Hill appeals a final summary judgment entered in favor of State Farm Florida Insurance Company (“State Farm”). Her lawsuit concerns fire damage to her home that occurred in February 2005. Although the basic insurance claim was resolved by appraisal between the parties in April 2006, a procedurally complex lawsuit alleging breach of contract remains pending. The final summary judgment was entered based on the law of this district as it existed before we issued our decisions in Goff v. State Farm Florida Insurance Co., 999 So.2d 684 (Fla. 2d DCA 2008), and Clifton v. United Casualty Insurance Co., 31 So.3d 826 (Fla. 2d DCA 2010). Although the trial court may very well have reached the correct outcome in this case, we conclude that its legal analysis is inconsistent with our more recent cases. Accordingly, we reverse the final summary judgment and remand the case for a renewed determination of whether Ms. Hill filed her lawsuit in good faith in order to force State Farm to adjust the claim or whether she filed suit merely as an effort to seek attorneys’ fees for the normal process of adjusting the claim. If she filed her lawsuit in good faith in order to force State Farm to adjust the claim, then she is entitled to attorney’s fees. If not, then State Farm is not liable for the attorney’s fees she incurred as a result of filing suit.

I. Round One: The Fire, the Claims Adjustment Process, and the First Final Judgment

Ms. Hill had a fire at her insured residence on February 16, 2005. State Farm had a contractor board up the residence that same day. State Farm also had a contractor, whom it regards as an independent contractor but whom Ms. Hill views as an agent of State Farm, provide an initial estimate of repairs within a week of the fire. State Farm then assisted Ms. Hill in moving into an apartment on March 2.

Ms. Hill believed that the contractor improperly discarded some of her personal property in early March. She also had problems with an adjuster who indicated that some upgrades to her house and other expenses would not be paid by State Farm. However, by early May, the adjuster’s supervisor had assured Ms. Hill that the adjuster was mistaken and that the items were covered under the policy.

In mid-May, Ms. Hill retained a public adjuster and fired the contractor. As a result, repairs to the home stopped at least temporarily. State Farm continued to work with the public adjuster on this claim and, for example, paid $28,000 for dwelling damage in late June 2005. The parties had at least a small disagreement about $455 in damage to a chainlink fence. By late August, State Farm appears to have paid more than $90,000 on this claim under its various coverages. It did take the position that $1095 of its payments had been overpayments, for which it was not then asking for a refund.

On September 22, 2005, State Farm received a letter of representation from an attorney representing Ms. Hill and a “courtesy copy” of a complaint that the attorney had already filed. At least from this record, it appears that the letter enclosing the already filed lawsuit may have been the attorney’s first contact with State Farm.

State Farm responded to the lawsuit in mid-November and immediately sought to stay discovery pending an appraisal pursuant to the appraisal provision in the contract. In early January 2006, Ms. Hill also asked the court to compel appraisal, arguing in strong rhetoric that State Farm had been dilatory in commencing appraisal. On January 4, 2006, the trial court granted State Farm’s motion to stay discovery pending appraisal. It granted Ms. Hill’s motion to compel arbitration on January 23, which included appraisal of the chain-link fence, but the trial court denied sanctions in that order.

On April 3, 2006, the three appraisers returned an award in favor of Ms. Hill of approximately $160,000. This included about $120,000 in coverage that had already been paid. Thus, State Farm promptly sent checks totaling $39,967.60 to satisfy the amount remaining unpaid under the insurance coverage. A few days later, Ms. Hill filed both an amended complaint for breach of contract and a motion to confirm the appraisal award.

In October 2006, the trial court entered a “final judgment” that confirmed the appraisers’ award totaling $39,967.60. It appears undisputed that this amount had already been paid to Ms. Hill in April. The order reserved jurisdiction to determine entitlement and amount of attorneys’ fees and costs.

II. Round Two: The Second Final Judgment and the Appeal

Normally, a final judgment is near the end of a record on appeal. The above-referenced final judgment is in volume five of the record and it is followed by nineteen additional volumes of litigation. This court probably lacks the ability or stamina to explain fully the remainder of the record. However, at least one source of the extensive record seems clear.

Both Ms. Hill’s initial complaint and the amended complaint attempted to allege a breach of the insurance contract. Both pleadings complained about the initial contractor and the adjuster and suggest that State Farm was “lowballing” the claim. However, these pleadings are vague about the nature of the breach of contract and the resulting damages. Both parties immediately sought appraisal after the lawsuit was filed. At least in general terms, appraisal is not a process to resolve a breach of contract claim or even to determine a coverage dispute. Appraisal is a method of adjusting a claim within the terms of the insurance contract to determine the amount payable for the covered claim. Thus, in this case, after the appraisal process was finished and Ms. Hill had been paid the remaining $39,967.60, her attorneys never really identified a loss that had not been covered in the adjusting process or any aspect of the appraisal procedure that had been improper. In other words, once the appraisal was concluded, Ms. Hill does not appear to have ever had a remaining claim for breach of contract that she could articulate.

Despite the “final judgment” confirming the appraisal, the trial court still had a lawsuit pending for breach of contract. In March 2007, the trial court entered an order granting summary judgment against Ms. Hill on the remaining claim for breach of contract. Ms. Hill appealed that order, which was assigned case number 2D07-2311. This court issues this opinion in that appeal, but we must explain several intervening matters.

When this court received the notice of appeal in 2007, we noticed two potential problems with the appeal. First, the order granting summary judgment was a nonfinal order; therefore, it was not ap-pealable. See, e.g., Better Gov’t Ass’n of Sarasota County, Inc. v. State, 802 So.2d 414, 415 (Fla. 2d DCA 2001) (holding that an order merely granting a motion for summary judgment is not appealable because “it lacks the finality of an order entering judgment in favor of a party and against the party opponent”). This court recognized that the error could be corrected if the trial court could render a summary final judgment in accordance with the order granting summary judgment. Second, this court had not yet received a full record, but we did have a copy of the earlier “final judgment.” From our limited record, we did not understand how the trial court had jurisdiction to enter an order granting summary judgment after it had already entered a final judgment. Thus, we relinquished jurisdiction of the case to the trial court to address these issues.

After this court relinquished jurisdiction, the trial court decided that it could not enter a summary judgment after it had already entered a final judgment. Thus, it concluded that the order granting summary judgment was void. The order that the trial court entered on that relinquishment resulted in a separate appellate proceeding — case no. 2D08^0. In that case, we reversed the trial court and held that the final judgment concerning the appraisal did not preclude the trial court from addressing the lawsuit for breach of contract. See State Farm Fla. Ins. Co. v. Hill, 1 So.3d 1272 (Fla. 2d DCA 2009).

When the case returned to the trial court, it entered a final judgment on May 11, 2009, that essentially transformed its earlier order granting summary judgment in March 2007 into a summary final judgment. The May 11, 2009, final judgment is the order pending on appeal in this case, but it is pending in a case that originated in this court in 2007. The order for all practical purposes was entered in accordance with the law in 2007.

III. Analysis: The Issue on Appeal Turns to Goff.

Given that the trial court granted a summary judgment on a claim of breach of contract, one might expect the issue on appeal to be whether there was a question of fact about some alleged breach of the insurance contract by State Farm. However, that is not the direction this appeal has taken. Instead, the issue has become whether the final judgment confirming the previously paid insurance appraisal is a confession of judgment or otherwise an event that entitles Ms. Hill to a judgment to receive an award of attorneys’ fees.

In Goff, this court considered an appeal with some similarities to this case. 999 So.2d 684. The parties were in an ongoing claims dispute when the Goffs sued State Farm, and the matter was immediately referred to appraisal. Id. at 686. We held that the Goffs were entitled to an award of attorneys’ fees because the lawsuit “forced” State Farm to request an appraisal and to pay significant additional amounts. Id. at 688.

It is apparent that some lawyers have read more into Goff than this court intended. Adjusting and settling property claims under insurance policies is never an easy process. It requires a level of good faith and cooperation from all parties. The law does not provide any general mechanism to impose attorneys’ fees against one party or the other merely because the negotiation process is difficult. It is only when the claims adjusting process breaks down and the parties are no longer working to resolve the claim within the contract, but are actually taking steps that breach the contract, that the insured may be entitled to an award fees under section 627.428, Florida Statutes (2004). See, e.g., Lewis v. Universal Prop. & Cas. Ins. Co., 13 So.3d 1079, 1081 (Fla. 4th DCA 2009) (stating that the underlying rationale of awarding attorneys’ fees under section 627.428 is the notion that the insureds filed suit “to resolve a legitimate dispute” and not simply to collect attorneys’ fees).

The line between rigorous negotiations and breach of contract is undoubtedly difficult to describe and it is a determination that is fact intensive. This court recently expanded on this issue in reversing a summary judgment in Clifton. 31 So.3d at 830 (holding that summary judgment in favor of the insurer is improper when there was a “bona fide” dispute between the parties that prompted the insured to sue). From the record in this appeal, we question whether this lawsuit was filed to force State Farm to conduct an appraisal or whether it was merely a preemptive lawsuit intended to obtain attorneys’ fees for the usual efforts in negotiating an insurance claim. The trial court, however, did not decide this case based on our recent decisions and, thus, none of the parties addressed the issue of whether Ms. Hill needed to file this lawsuit to force State Farm to comply with its contract. Because this issue was not considered at the hearing on the motion for summary judgment, it is not appropriate for this court to base its decision on those cases. Instead, we reverse and remand the case to the trial court to determine whether Ms. Hill may be entitled to fees under the reasoning in Goff and Clifton. In all other respects, we affirm the judgment on appeal.

On remand, if the trial court determines that Ms. Hill is entitled to an award of attorneys’ fees, we observe that the scope of the remedy we envisioned in Goff has clearly been misconstrued by Ms. Hill’s attorneys in this case. The fees we envisioned in Goff were the fees necessary to force State Farm back to the negotiations table to resolve the dispute within the terms of the insurance contract. The appraisal process, for example, is not legal work arising from an insurance company’s denial of coverage or breach of contract; it is simply work done within the terms of the contract to resolve the claim. Thus, except under the most extraordinary of circumstances, we do not envision fees for such work to be recoverable under the rule announced in Goff. Instead, the fees should normally be limited to the work associated with filing the lawsuit after the insurance carrier has ceased to negotiate or has breached the contract and the additional legal work necessary and reasonable to resolve the breach of contract.

Reversed and remanded.

KELLY, J„ and FULMER, CAROLYN K., Senior Judge, Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Randy Lee MORIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3076.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2010.
    Randy L. Morin, Lake Butler, pro se.
    Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Defendant, Randy Morin, appeals the order denying his rule 3.850 motion for postconviction relief. He argues that the trial court erred in summarily denying his first ground for relief in which he claimed that trial counsel was ineffective for failing to move to dismiss the two DUI manslaughter charges to which he later entered a negotiated guilty plea. Based on the particular facts and circumstances of this unusual case, we agree. Because Defendant has stated a facially sufficient claim that warrants an evidentiary hearing, we reverse that part of the order summarily denying that claim and remand for further proceedings.

AFFIRMED in part; REVERSED in part; and REMANDED.

SAWAYA, ORFINGER and JACOBUS, JJ., concur.

      . Defendant also argues that the trial court erred in denying him relief on two other grounds asserted in his motion: that counsel was ineffective for failing to protect him from coercive tactics by the prosecutor to obtain a plea agreement and that counsel was ineffective for failing to ensure a correct score sheet was prepared. Having found no error in the trial court's ruling, we affirm that part of the order denying relief on these two grounds.


author: ALTENBERND, Judge.

text:
    Denise C. SHARON, Appellant/Cross-Appellee, v. C. William SHARON, Appellee/Cross-Appellant.
    No. 2D08-3731.
    District Court of Appeal of Florida, Second District.
    May 7, 2010.
    Karen E. Lewis and Marie Tomassi of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., St. Petersburg, for Appellant/Cross-Appellee.

      Virginia R. Vetter, Tampa, for Appel-lee/Cross-Appellant.
   ALTENBERND, Judge.

Denise C. Sharon appeals and her former husband, C. William Sharon, cross-appeals an “Order on Issues on Remand” issued by the trial court as a result of our earlier decision in Sharon v. Sharon, 862 So.2d 789 (Fla. 2d DCA 2003). This case is a disturbing example of dissolution litigation that has proceeded with little consideration to the need for timely and cost-effective resolution of family disputes. Unfortunately, we must reverse this order, recognizing that the parties and their attorneys on remand are likely to continue to spend far more on attorney’s fees than the issues in dispute warrant.

This couple married in 1978 and separated in 1997 after nineteen years of marriage. At the time they separated, they had two teenage children who are now adults. Mr. Sharon filed for divorce in 2000 and the trial court entered a first amended final judgment of dissolution in July 2002. Prior to the divorce, the couple had lived a very comfortable lifestyle and Mr. Sharon had regularly earned in excess of $200,000 per year during the 1990s. The couple had no significant debt. As a result, the judgment of dissolution divided the family assets equally, providing $955,000 in assets to each party. It awarded Ms. Sharon permanent, periodic alimony of $3550 per month plus three years of rehabilitative alimony at $1250 per month.

Both parties appealed this final judgment. In late 2003, this court issued an opinion that reversed the judgment in part and remanded for further proceedings. Sharon, 862 So.2d at 792. We attempted to pinpoint the problems in the final judgment so that the parties could readily resolve the issues on remand. This court held that: 1) the rehabilitative alimony needed to be increased to cover the cost of proposed training as established by the existing record, 2) the trial court needed to consider the tax consequences created by the award of alimony based on the evidence in the record and also such additional evidence as may be necessary, 3) the equitable distribution needed to be adjusted to give Ms. Sharon an additional $6250, and 4) the trial court needed to make findings concerning the income that Ms. Sharon could reasonably be expected to receive from her liquid assets and then adjust the permanent alimony to reflect these findings. Id. at 791-92.

When the case was remanded to the trial court, the evidence in the record reflected that the costs of training that needed to be added to the rehabilitative alimony were $1624.80. Most of the evidence was already in the record concerning the tax consequences and income from liquid assets, so it would seem that attorneys attempting to maximize their clients’ assets could have resolved the remaining issues with the help of a certified public accountant and maybe a mediator over the course of an afternoon. Perhaps by mid-February 2004, the parties would have been able to submit a stipulated revised final judgment to the trial court for entry.

Instead, for reasons that are not entirely clear from our record, the parties did not return to the trial court to resolve these narrow issues on remand for more than four years. The judge in the division was no longer the judge who had tried the initial trial. The trial court conducted hearings on January 22, 2008, and March 7, 2008, issuing a lengthy “Order on Issues on Remand,” in June 2008.

As to the four matters that this court had remanded to the trial court in 2008, the court correctly provided a $1624.80 increase in rehabilitative alimony. The trial court claimed that it considered the testimony regarding the tax consequences of the award and the testimony showed that no change in the award of alimony was warranted. It gave Ms. Sharon an increase in equitable distribution of $6250, but refused to give her any interest on this money for the six years that Mr. Sharon had possessed these funds after entry of the judgment of dissolution. It found that Ms. Sharon could be expected to earn about $17,350 per year on her liquid assets that were not retirement accounts. It found that Mr. Sharon would earn almost $31,000 on similar accounts, and that each of them would earn a little more than $30,000 in retirement accounts, but that these amounts should not be considered as annual income available to pay current expenses. Based on these calculations and considering the taxes that Ms. Sharon would pay on this income, the trial court reduced her permanent alimony to $2940.

The trial court then calculated that Mr. Sharon was entitled to a credit of $42,090 for his overpayment of alimony. Subtracting the amounts owed for rehabilitative alimony and the equitable distribution adjustment, the trial court determined that Ms. Sharon owed Mr. Sharon $34,575.20.

Next, the trial court considered Ms. Sharon’s request for “temporary” attorneys’ fees for the proceedings in the trial court on remand. The court had never awarded an earlier award of temporary fees, so this award would appear to be the final award of fees at the conclusion of the trial on remand. Ms. Sharon’s attorney requested $51,425.65 for the work on these four narrow issues on remand. There is little question that the trial court regarded this request as exorbitant. After pages of discussion in its order, the trial court determined that Mr. Sharon owed Ms. Sharon $34,575.20 — a number that coincidentally left each party owing the other nothing. It seems rather clear that the trial judge was encouraging these parties to simply pack up their tents and go home. Instead, they came to this court.

We affirm without further discussion the trial court’s determinations as to rehabilitative alimony and the adjustment to permanent alimony caused by the trial court’s consideration of the income Ms. Sharon received on her liquid assets. We also affirm the trial court’s decision to deny interest on the $6250 adjustment to equitable distribution. We reverse its decision on the tax effects of the alimony and remand for further consideration, and we reverse the award of temporary attorneys’ fees.

As explained in our opinion in 2003, the $6250 error in equitable distribution was essentially a mathematical oversight by the trial judge in the judgment of dissolution that was rendered in July 2002. Sharon, 862 So.2d at 792. The parties apparently complied with the equitable distribution in that judgment. Thus, at all times since July 2002 until the entry of the order on remand, Mr. Sharon had use of the $6250 and the ability to earn interest on that amount. This court has not expressly decided the extent to which a trial judge in a dissolution proceeding has discretion to deny an award of interest in a situation like this. See Erp v. Erp, 976 So.2d 1234 (Fla. 2d DCA 2008).

In isolation, the decision to deny interest on this adjustment seems questionable. On the other hand, the trial court was bothered by the fact that the parties had made these issues far more difficult to decide by delaying their resolution for over four years. The trial court did not award interest on the $6250, but it also did not adjust the $42,090 overpayment of alimony to account for interest. It is obvious that the net effect of these combined decisions actually favors Ms. Sharon. Although we might have expected the trial court to award interest if the matter had returned to it in the winter of 2004, we cannot conclude that the trial court abused its discretion by declining to calculate interest on the various adjustments required on remand in this case.

As to the tax consequences of the award of alimony, in our prior opinion we mandated that the trial court consider the tax consequences on remand and that it should, if necessary, obtain additional evidence on this topic. Sharon, 862 So.2d at 791. The trial court’s order contains no findings or any significant legal discussion of the tax implications of the award of alimony. Indeed, the order reflects that the trial court believed it was obligated only to consider the tax implications of the income derived from the liquid assets that the parties received in equitable distribution.

Even with the adjustments contained in the order on remand, Ms. Sharon is receiving, and Mr. Sharon is paying, approximately $36,000 each year in alimony. In the absence of any findings, we assume that this alimony is deductible by Mr. Sharon and taxable to Ms. Sharon. When the alimony was set in 2002, the trial court used a relatively conservative list of expenses to determine Ms. Sharon’s needs. That list did not include federal income tax on the award of alimony. We do not rule out the possibility that the trial court could decline to adjust the alimony to account for the effects of taxation, but the order on remand contains no reasoned decision on this subject and appears to have addressed the wrong issue of taxation. Accordingly, we reverse this portion of the order on remand, and once again return the issue to the trial court to make the same determination that we mandated in 2003.

Finally, the trial court’s award of $34,575.20 as temporary attorneys’ fees, although undoubtedly well intended, simply was not established in accordance with the applicable law. See, e.g., Heysek v. Heysek, 997 So.2d 489 (Fla. 2d DCA 2008) (holding trial court erred in failing to make factual findings regarding reasonable hourly rate, number of hours reasonably expended, and the husband’s ability to pay). We reverse this award. Given the posture of this case, we suggest that the trial court simply make a traditional final determination of attorneys’ fees on remand.

Over the last seven years, these parties appear to have spent at least $75,000 in attorneys’ fees to achieve an adjustment between them that appears to total about $40,000. The tax implication issue that we return to the trial court could be financially significant, but we are convinced that a certified public account could provide an accurate adjustment to account for tax implications with only a few hours’ work. By separate order, we are authorizing the trial court to determine an award of attorneys’ fees for Ms. Sharon on remand, but the trial court should carefully consider all of the Rosen factors. As we did at oral argument in this case, we again encourage the parties to mediate this matter before a competent, experienced family law mediator because the litigation is obviously draining their assets and their emotions without providing a significant benefit for either side.

Affirmed in part, reversed in part, and remanded.

KELLY, J., and FULMER, CAROLYN K, Senior Judge, Concur.

      . While it should not have delayed these proceedings, we note that the parties engaged in extensive appellate litigation over Ms. Sharon's right to receive attorneys’ fees for the trial work because her attorney did not file a motion for attorneys' fees within the thirty-day window that this court applied prior to the supreme court's decision in Montello v.

        Montello, 961 So.2d 257 (Fla.2007). See Sharon v. Sharon, 915 So.2d 630 (Fla. 2d DCA 2005), rev’d, 974 So.2d 358 (Fla.2008), aff'd on remand, 978 So.2d 172 (Fla. 2d DCA 2008) (table decision).

      . Rosen v. Rosen, 696 So.2d 697, 700 (Fla.1997).


author: COHEN, J.

text:
    Willie Gene HERRING, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-3923.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2010.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Appellant, Willie Gene Herring, was charged by affidavit with violating the terms of his community control. He was placed on community control with electronic monitoring for the offenses of lewd or lascivious battery of a person between twelve and sixteen years of age, and lewd or lascivious molestation of a person between twelve and sixteen years of age. Following a hearing, the trial court found a willful violation of conditions 8, 11, and 26. Implicitly, the trial court found insufficient evidence relating to condition 13.

The gravamen of the violations centered on trips Appellant made over Memorial Day weekend to a Save Rite pharmacy located across the street from his approved residence. The affidavit alleged that Appellant went to the store on two occasions without receiving permission and as a result was out of his residence and in violation of his community control officer’s instructions (conditions 8 and 11). The affidavit also alleged Appellant failed to maintain a driving log (condition 26) and a log of all of his activities (condition 13). The only issues on appeal are the willful and substantial nature of any violation of conditions 8 and 11. The State properly concedes error as to the violation of condition 26. The only evidence reflects that Appellant walked rather than drove to the Save Rite, thus not requiring a driving log. We strike the finding that Appellant violated condition 26.

We review for an abuse of discretion the issue of the willfulness of the remaining violations. Davis v. State, 704 So.2d 681, 683 (Fla. 1st DCA 1997). The facts present a close call. The evidence established that, in the past, Appellant’s community control officers were more lax than his current officer. He was allowed some leeway, particularly with respect to his visits to Save Rite. However, his current officer made clear that permission to deviate from the approved schedule had to be obtained in advance. Appellant made two unauthorized trips to the Save Rite, each of relatively short duration. On the first occasion, Appellant attempted to secure his community control officer’s consent but was unable to reach her by telephone. He made no attempt to secure permission the following day. It is also relevant to the issue of willfulness that on the second occasion, Appellant did not purchase medication or other essentials, but vodka and tonic.

Appellant was on community control for serious offenses and, as the trial judge stated, his home was a substitute for incarceration. A defendant’s failure to obtain the necessary permission before leaving an approved residence has been found to be a sufficient basis for revoking community control. Id. We cannot say that no reasonable person would not have taken the view adopted by the trial judge, and therefore, there can be no abuse of discretion. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). Trial courts are afforded broad discretion in determining whether the facts and circumstances of a case constitute a willful and substantial violation. Anthony v. State, 854 So.2d 744, 747 (Fla. 2d DCA 2003).

A review of the hearing clearly reflects that the basis for the trial court’s violation of community control was Appellant’s unexcused absences from his approved residence, and that the sentence imposed would not be altered by the striking of the allegations regarding the driving log contained in condition 26. See Dawkins v. State, 936 So.2d 710, 713 (Fla. 2d DCA 2006). Accordingly, we affirm the revocation of community control.

AFFIRMED.

GRIFFIN and ORFINGER, JJ., concur.

      . § 800.04(4)(a), Fla. Stat. (2005).

      . § 800.04(5)(c)2., Fla. Stat. (2005).


author: LAWSON, J.

text:
    Leonidas ABREU, Appellant, v. F.E. DEVELOPMENT RECYCLING, INC., et al., Appellee.
    No. 5D09-826.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2010.
    Matthew D. Pardy, of Pardy & Rodriguez, P.A., Orlando, for Appellant.
    Betsy E. Gallagher and William Vericker, of Kubicki Draper, Tampa, for Appel-lee.
   LAWSON, J.

Leonidas Abreu, the plaintiff in an automobile negligence case, appeals a final summary judgment for the defendants, Teddy Woodall and his employer, F.E. Development Recycling, (“F.E. Development”), which effectively ruled that the defendants had established as a matter of law the affirmative defense that Woodall suddenly and unexpectedly lost consciousness before the crash. We agree with Abreu that the trial court erred in granting summary judgment because genuine issues of material fact exist on the suddenness and foreseeability elements of the defense.

“As a general rule, the operator of an automobile, vessel or other mode of transportation who unexpectedly loses consciousness or becomes incapacitated is not chargeable with negligence as a result of his or her loss of control.” Feagle v. Purvis, 891 So.2d 1096, 1098-99 (Fla. 5th DCA 2004) (citations omitted); see also, Bridges v. Speer, 79 So.2d 679 (Fla.1955) (“It is not even simple negligence if one has a sudden attack, loses control of his car and causes an accident if he had no premonition or warning.”). To establish the defense of sudden and unexpected loss of capacity or consciousness, the defendant must prove the following:

1. The defendant suffered a loss of consciousness or capacity. See, e.g., Bridges v. Speer, 79 So.2d 679, 681 (Fla.1955); Wilson v. The Krystal Co., 844 So.2d 827 (Fla. 5th DCA 2003).
2. The loss of consciousness or capacity occurred before the defendant’s purportedly negligent conduct. See Malcolm v. Patrick, 147 So.2d 188, 193 (Fla. 2d DCA 1962).
3. The loss of consciousness was sudden. See, e.g., Baker v. Hausman, 68 So.2d 572, 573 (Fla.1953); Malcolm.
4. The loss of consciousness or capacity was neither foreseen, nor foreseeable. See, e.g., Baker; Wilson; Wingate [v. United Servs. Auto Assoc., 480 So.2d 665 (Fla. 5th DCA 1985)]; Malcolm.

Feagle, 891 So.2d at 1099.

In this case, it is undisputed that Woo-dall lost consciousness while driving when he suffered a brain aneurism, and that his loss of consciousness caused the collision which injured Abreu. Defendants submitted the affidavit of a medical expert explaining that: “it would have been impossible for the patient [Woodall] to know prior to the accident ... that he had an inter-cranial aneurism.” It was this opinion which apparently swayed the trial court when deciding the summary judgment motion.

However, medical notes submitted for consideration at summary judgment indicated that Woodall had a history of aneurysm, and discussed a “nephrology consult” which stated that an angiography was recommended due to a “known history of cerebral aneurysm.” Another medical report described Woodall as a “severe vas-culopath who was not getting proper medical care.” In addition, various medical records indicated that on the day of the accident, Woodall had a headache for several hours prior to losing consciousness, and that his “head was spinning.” The records further report that Woodall “tried to drive home” but “started having blurry vision where he could not see” and “felt like he was going to pass out.” This evidence raises questions of fact as to whether Woodall’s loss of consciousness was foreseeable, how suddenly he lost consciousness and whether he had any “premonition or warning” of it. Given this conflicting evidence, summary judgment should not have been granted. See Feagle, 891 So.2d at 1099.

Accordingly, we reverse the final judgment, and remand for further proceedings.

REVERSED AND REMANDED.

ORFINGER and JACOBUS, JJ., concur.

      . A vasculopath is a person with vascular disease.

      . The records indicate that Woodall was not receiving proper care because of his failure to comply with medical recommendations for medication and cessation of smoking.


text:
    Brady JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3176.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2010.
    Brady Johnson, Bushnell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Brady Johnson appeals the denial of his petition for writ of habeas corpus. Based upon a lack of a record, we affirm without prejudice to Johnson renewing his request.

Johnson claims entitlement to release pursuant to McNeil v. Canty, 12 So.3d 215 (Fla.2009), where the supreme court held that the Department of Corrections, “upon revocation of conditional release, must retroactively credit prison time served on any concurrent sentence as prison time served on all concurrent sentences.” Canty, 12 So.3d at 217. (citations omitted). The court prohibited the serving of a greater sentence than originally imposed. As the trial court correctly pointed out, Johnson did not show that he exhausted his administrative remedies through the Department of Corrections, Davis v. State, 943 So.2d 975 (Fla. 5th DCA 2006), or that the recalculation of his release date following revocation of his conditional release resulted in an incarceration exceeding that imposed by the sentencing judge.

AFFIRMED without prejudice.

GRIFFIN and ORFINGER, JJ., concur.


text:
    Milton Louis MORRISON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-975.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2010.
    Milton L. Morrison, Wewahitchka, pro se.
    Bill McCollum, Attorney General Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the order denying the motion for post-conviction relief in Case No. 2007-CF-3784(01) in the Circuit Court in and for Lake County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

MONACO, C.J., EVANDER and COHEN, JJ., concur.


text:
    Shawn Sylvester ATKINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-1002.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2010.
    Shawn S. Atkinson, Lowell, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number 2009-CF-001519, in the Circuit Court in and for Lake County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

MONACO, C.J., PALMER and EVANDER, JJ., concur.


text:
    S.C., a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-1438.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2010.
    Robert Wesley, Public Defender and Katy McGinnis, Assistant Public Defender, Orlando, for Petitioner.
    Bill McCollum, Attorney General, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petitioner seeks habeas corpus relief, requesting this court quash a behavioral order which is improper. We agree.

The State concurs in their response to the petition in this case, that the petitioner is not in any legal status from which the trial court could release the child or impose conditions of release, the child scoring one point on her detention risk assessment instrument and having been earlier released after arrest. See C.A.F. v. State, 976 So.2d 629 (Fla. 5th DCA 2008).

Consequently, the behavioral order entered by the trial court is hereby quashed.

PETITION GRANTED.

ORFINGER, TORPY and LAWSON, JJ., concur.


text:
    Michael JENSEN, Petitioner, v. Tracy JENSEN, et al., Respondent.
    No. 5D10-1460.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2010.
    Carlton Pierce, of Carlton Pierce, P.A., Orlando, for Petitioner.
    Debra Johnson, of Debra S. Johnson, P.A., Orlando, for Respondent.
   PER CURIAM.

Michael Jensen seeks habeas corpus relief after being sentenced to 80 days for civil contempt, in failing to pay court ordered child support as well as other costs and fees earlier ordered. We agree that the order of contempt must be vacated.

The petitioner correctly argues that the written order holding him in contempt does not make any findings of present ability to satisfy the purge amount set at $3500. See Carbonell v. Department of Revenue, 30 So.3d 664 (Fla. 5th DCA 2010). The respondent does not dispute this contention, but merely asserts that the transcript of the hearing in this matter supports the finding of contempt and the 30 day sentence imposed. Unfortunately, even if the respondent is correct, the trial judge has utilized a form order which does not include the requisite “separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding.” See Fla. Fam. R.P. 12.615(e). As such, the order of contempt cannot stand.

The petitioner further requests that this court order the case be reassigned to another trial judge. Since no proper basis has been asserted or established for such relief, the request is denied.

PETITION GRANTED, vacating order of contempt.

MONACO, C.J., GRIFFIN and ORFINGER, JJ., concur.


text:
    Autley MOBLEY, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D10-0886.
    District Court of Appeal of Florida, First District.
    May 10, 2010.

      Autley Mobley, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Gaither v. McDonough, 968 So.2d 57 (Fla. 1st DCA 2007).

WEBSTER, LEWIS, and ROBERTS, JJ., concur.


author: RAMIREZ, C.J.

text:
    Helio ROCHA, Appellant, v. Maria Ines Alves MENDONCA, Appellee.
    No. 3D09-24.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.
    Rehearing Denied June 16, 2010.
    John G. Crabtree and George R. Baise, Jr.; Marks & West and Evan Marks, for appellant.
    Maria Ines Alves Mendonca, in proper person.
    Before RAMIREZ, C.J., and CORTINAS and LAGOA, JJ.
   RAMIREZ, C.J.

This is an appeal from an order granting the former wife’s pending motions. Because the trial court rewrote the parties’ settlement agreement and impermissibly amended prior orders of the court, we reverse.

In the November 15, 2007 Final Judgment, the trial court ended Helio Rocha and Maria Ines Mendonca’s marriage. The dissolution was uncontested and the parties settled all matters with an October 24, 2007 marital settlement agreement that was ratified and approved by, but not merged with, the Final Judgment. In the agreement, Rocha was named Primary Residential Parent of the parties’ minor child, and no provision was made for payment of child support. Both parties waived any right to alimony and agreed to equitably divide Rocha’s retirement and 401(k) accounts from his employer, AXA. These accounts and the parties’ home were their chief marital assets, which were divided in the marital settlement agreement.

Paragraph 7 of the marital settlement agreement, titled “Equitable Distribution”, included two subheadings titled “For the Wife” and “For the Husband.” For the wife, the parties agreed that:

a. The Wife shall receive $270,000.00, by way of a Qualified Domestic Relations Order (QDRO) from the Husband’s AXA Retirement Plan;
b. The Wife shall receive $140,000.00, by way of a Qualified Domestic Relations Order (QDRO) from the Husband’s 401(k); ,..

Under the same subheading, the agreement called for Rocha’s forensic accountant expert, Philip Shechter, to prepare the two QDROs after the parties signed the marital settlement agreement. Also included under the sub-headings “For the Wife” and “For the Husband” were two congruent provisions concerning which party would be responsible for paying the utilities for the marital home pending its sale. The “For the Wife” provision stated:

e. Upon transfer to the Wife of the first funds in either paragraph a or b above [the QDRO provisions], the Wife shall be solely responsible for the payment of all utilities (electric, water, sewer, gas, phone) for the home in which she is living, located at 7568 SW 189th Street, Miami, Florida, 33157, until same is sold. The Wife may remain in the home located at 7568 SW 189th Street, Miami, Florida, 33157 until ten (10) days prior to the closing for the sale of this home, at which time she must immediately vacate same.

and the like provision under “For the Husband” stated:

a. Until the transfer to the Wife of the first funds in either paragraph a or b of the preceding section (“For the Wife”), the Husband shall be responsible for the payment of all the utilities (electric, water, sewer, gas, phone) for the home in which the Wife is living that is to be sold.

Finally, on page four of the marital settlement agreement, paragraph “a” under the heading “For the Husband” provided: “The husband shall retain all of his pension and retirement plans and other benefits from his employment (pension/retirement plan, 401(k), stock purchase plan, stock options, shareplans, etc.) other than set forth above.”

Mr. Shechter, the forensic accountant, prepared both the 401 (k) and the Retirement Plan QDROs, which were then reviewed and approved by Ms. Mendonca’s attorney and submitted to the trial court. The trial court entered the 401 (k) QDRO November 15, 2007, and the Retirement Plan QDRO on January 8, 2008. Neither party appealed the Final Judgment, including the child custody or support provisions, or the QDROs.

On March 26, 2008, Mendonca moved for an order to enforce the marital settlement agreement and to hold Rocha in contempt of its provisions. She had apparently learned that the Retirement Plan QDRO required a “triggering event” for her to gain access to the $270,000.00 from the plan. Such triggering event included Rocha’s retirement, disability, and his separation from service.

Mendonca conceded that she had received the $140,000.00 as promised from Rocha’s 401 (k) QDRO, but contended that it was never the parties’ intent that she should have to wait to receive the $270,000.00 from Rocha’s Retirement Plan. She asked the trial court to use its reserved jurisdiction to enforce the marital settlement agreement by making Rocha pay $270,000.00 from his post-dissolution assets or, in the alternative, by setting the marital agreement agreement aside, along with Mendonca’s alimony waiver.

The trial court heard Mendonca’s contempt motion and concluded, after reading the marital settlement agreement, that the parties intended for Mendonca to receive immediate, unrestricted access to the $270,000.00 from the Retirement Plan. The judge explained that he reached his conclusion by relying upon the wording of the Utilities Provisions, particularly “Upon transfer to the Wife of the first funds in either a or b above, the Wife shall be solely responsible for ... ” and “Until transfer to the Wife of the first funds in either paragraph a or b in the preceding section ...”

Accountant Philip Shechter testified that the Retirement Plan QDRO had been prepared consistent with the plan because it used the Plan Administrator’s prototype format. He explained that the $270,000.00 payment by the Retirement Plan QDRO was a “payment in the future” taken from a future balance in the account and predicated upon a future event, while the 401 (k) fund was a present fund in actual, present existence, meaning 401 (k) assets could be immediately transferred. Thus, the AXA Retirement Plan was not amenable to a 401 (k) transfer-type payout, so as to give Mendonca a $270,000.00 immediate payment, as that amount represented a payment of future money.

At a subsequent hearing, it became clear that Mendonca would not be allowed to immediately access the $270,000.00 through the Retirement Plan’s rules. Shechter again testified that although the Plan had a value in excess of $270,000.00, there had not been a distributable cash balance in the plan of $270,000.00 when the marital settlement agreement was entered into. The qualified component totaled $178,000.00 and could be transferred to Mendonca by QDRO when Rocha retired or when he turned 55 years old on December 27, 2011. However, the $92,000.00 remaining in the account was a non-ERISA, unqualified portion of the plan that could not be transferred through a QDRO. This amount functioned as income for the calendar year in which it was dispensed and would be given directly to Rocha and only upon his retirement.

After hearing the arguments, the trial judge made his ruling contained in twenty-three pages of transcript. The Final Order states that “the Ruling of this Court is contained in the attached transcript.” We are thus left to scour through the transcript to ascertain the courts’s ruling. It appears that he ordered the balance of Rocha’s 401 (k) to be transferred to Men-donca with a new QDRO. He also ordered an amended Retirement Plan QDRO to be issued, one that specified that Mendonca would receive one hundred per cent of the qualified portion of the account, up to a maximum of $270,000.00, minus the amount he ordered transferred from the 401 (k) account. He further ordered the parties to place the Retirement Plan administrator on notice that Mendon-ca had a claim on any of the unqualified portions of the Retirement Plan account needed to satisfy that portion of the $270,000.00 not paid by the qualified portions of the account, minus the amounts transferred from the 401 (k) account. He further ordered Rocha not to dispose of, dissipate, or liquidate any of these unqualified and extra-QDRO portions until Men-donca’s total distribution was satisfied. When Rocha’s counsel pointed out that Mendonca would be responsible for taxes on any amount she received from the unqualified portion of the Retirement funds, the judge stated that his ruling did not cover future tax issues. As to any interest, the judge ruled that failing to provide Mendonca with interest on the $270,000.00 provided Rocha with a windfall. He reasoned that the Retirement Plan QDRO had been consistent with the marital settlement agreement, and the Retirement Plan’s regulations with the marital settlement agreement, the $270,000.00 would have been segregated to Mendonca, in which case Rocha would not be receiving interest on the amount. Hence, he reasoned the amended Retirement Plan QDRO should be made to apply to the $270,000.00, less amounts received from Mr. Rocha’s post-judgment 401(k) amounts, plus or minus any earnings, appreciation, or depreciation on the account. He reserved jurisdiction to decide which party would incur the tax liability on any unqualified portion of the Retirement Plan account that might be paid to Mendonca to reach the $270,000.00 total.

We review questions of law, including those pertaining to contract interpretation, de novo. See Witt v. La Gorce Country Club, Inc., 2009 34 Fla. L. Weekly D1161 (Fla. 3d DCA June 10, 2009). We agree with Rocha that the Motion for Enforcement/Contempt should have been denied as there was nothing in this case to enforce. The marital settlement agreement called for Mendonca to receive $270,000.00 by way of a QDRO and that is what the Retirement Plan QDRO will accomplish. The trial court instead gave Mendonca relief not contemplated under the marital settlement agreement, such as $20,800.00 of Rocha’s post-dissolution 401(k) contributions and the accrued earnings on her unpaid portion of the Retirement Plan. “[W]hen a court incorporates a settlement agreement into a final judgment or approves a settlement agreement by order and retains jurisdiction to enforce its terms, the court has the jurisdiction to enforce the terms of the settlement agreement ... [h]owever, the extent of the court’s continuing jurisdiction to enforce the terms of the settlement agreement is circumscribed by the terms of that agreement.” Paulucci v. Gen. Dynamics Corp., 842 So.2d 797, 803 (Fla.2003). Although a trial court may be motivated to do what it considers to be fair and equitable, it retains no jurisdiction to rewrite the terms of a marital settlement agreement. Under the guise of enforcing the agreement, the trial court here impermissibly modified it.

The agreement does not establish that the parties intended for Mendonca to have immediate and unrestricted access to the $270,000.00 from Rocha’s Retirement Plan. The provisions dealing with utilities did not set forth the parties’ property distribution scheme; they merely established when Mendonca would be responsible for paying for the marital home’s utility bills.

In reaching its conclusion, the trial court relied solely on the following language: “Upon transfer to the Wife of the first funds in either paragraph a or b above.” In particular, the court believed that the parties’ use of the word “funds” in relation to “paragraph a or b” established their intent for Mendonca to immediately receive the $270,000.00 from the retirement plan.

It is undisputed that both the 401 (k) and Retirement Plan QDROs would transfer their specified amounts from Rocha’s accounts to Mendonca, but there is nothing in that definition that can be read as containing a time limitation. Both parties approved the QDRO dealing with Rocha’s retirement plan after reviewing the retirement plan rules. The QDRO clearly indicated that payment was conditioned upon Rocha reaching his “earliest retirement age”.

We thus conclude that the trial court’s interpretation of the marital settlement agreement and the two QDROs is not supported by the language of the agreement or the orders. See Maher v. Schumacher, 605 So.2d 481 (Fla. 3d DCA 1992). Accordingly, we reverse the trial court’s December 12, 2008 Final Order on Former Wife’s Pending Motions. We further remand with instructions to the trial court that judgment be entered in favor of Rocha regarding the issues addressed in this appeal and consistent with this opinion.


text:
    Efrain MONDEJA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3071.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.
    Efrain Mondeja, in proper person.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and CORTIÑAS, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800. On appeal from a summary denial, this Court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Antonio JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-698.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.

      Antonio Johnson, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SHEPHERD, and CORTINAS, JJ.
   PER CURIAM.

Affirmed without prejudice to the filing of an amended motion properly attaching the sentencing transcript. See Williams v. State, 957 So.2d 600, 604 (Fla.2007).


text:
    Rosevelt R. PERRY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-703.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.
    Rosevelt R. Perry, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See § 775.021(4)(a), Fla. Stat. (2005).


author: PER CURIAM. COPE, J.

text:
    Ricardo ALFONSO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1102.
    District Court of Appeal of Florida, Third District.
    May 12, 2010.

      Ricardo Alfonso, in proper person.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.
    Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Ricardo Alfonso (“the defendant”) appeals the written denial of his Florida Rule of Criminal Procedure 3.850 motion for post-conviction relief. We reverse.

The defendant moved for post-conviction relief based on the trial court’s failure to warn him of the deportation consequences of his plea. See Fla. R.Crim. P. 3.172(c)(8). The trial court denied the defendant’s motion without prejudice as legally insufficient, but stated that the defendant had the right to appeal the ruling within thirty days.

Because the defendant failed to allege that he was subject to deportation based only on the conviction here, the trial court correctly determined that the defendant’s motion was legally insufficient. See Prieto v. State, 824 So.2d 924 (Fla. 3d DCA 2002). In accordance with Spera v. State, 971 So.2d 754 (Fla.2007), the trial court should have given the defendant an opportunity to amend his motion. This may have been the trial court’s intent when it denied the motion without prejudice. However, because of the contradictory language referring to the defendant’s right to appeal, the order is ambiguous and confusing. Therefore, the defendant may not have understood that he had a right to amend his motion.

Accordingly, we reverse and remand for the defendant to be given an opportunity to amend his motion. If the defendant amends his motion, the amended motion shall relate back to his original motion to satisfy the time requirements of State v. Green, 944 So.2d 208 (Fla.2006).

Reversed and remanded with directions.

COPE, J.

(concurring).

As stated in the majority opinion, we have decisions which say that a defendant must allege that he is subject to deportation based only on the conviction he or she is challenging. Sabnani v. State, 5 So.3d 808, 809 (Fla. 3d DCA 2009); Dumenigo v. State, 988 So.2d 1201, 1202 (Fla. 3d DCA 2008). It should also be pointed out, however, that we clarified this rule in Macias v. State, 29 So.3d 1182 (Fla. 3d DCA 2010).

By way of background, in Prieto v. State, 824 So.2d 924 (Fla. 3d DCA 2002), this court held that a defendant cannot obtain relief from a plea on account of a lack of deportation warnings unless the defendant shows that he was prejudiced by the absence of those warnings. In Prieto, the defendant had been sentenced in 1994 pursuant to a plea agreement in a homicide case. There had been no warning of the immigration consequences. The defendant also had a 1989 felony conviction for grand theft. The Immigration and Naturalization Service commenced deportation proceedings based on both prior cases. The 1989 conviction was apparently a conviction after trial, not pursuant to a plea, but in any event, the defendant did not challenge the 1989 conviction. This court held that on those facts, the defendant could not show prejudice based on the 1994 plea. That was so because even if the 1994 plea were set aside, the defendant would remain subject to deportation pursuant to the 1989 conviction.

Subsequent to that case, this court said (as already stated) that a defendant must show that the plea he is seeking to set aside “is the only matter that subjects him to deportation (so as to establish the requisite prejudice).” Sabnani, 5 So.3d at 808.

We clarified this rule in the Macias case. There the defendant had two prior convictions, both resulting from plea agreements, one entered in 1991 and the other entered in 1994. The defendant moved to vacate both pleas, alleging that there had been no immigration warning in either of the prior cases. The postconviction motion filed in the 1991 case was denied because of the existence of the 1994 case. The postconviction motion in the 1994 case was denied because of the existence of the 1991 case. This court reversed for further proceedings. Macias, 29 So.3d 1182. As a matter of pleading, prejudice was sufficiently shown because there were two prior pleas, both of which were being attacked for lack of deportation warnings.

The postconviction record before us is scanty, so the details of the defendant’s conviction record are not clear. The State acknowledges that the defendant must be given an opportunity to re-plead.

       The State argues that this particular pleading requirement is found in State v. Green, 944 So.2d 208, 219 (Fla.2006). The State is in error. The Green case only states that the defendant must allege (so far as pertinent here) "that under current law the plea does render the defendant subject to being removed from the country at some point in the future.” Id.


text:
    Jesus Sabino HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2736.
    District Court of Appeal of Florida, Fifth District.
    May 18, 2010.
    Jose F. Torroella, Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Banks v. State, 732 So.2d 1065 (Fla.1999).

MONACO, C.J., PALMER and COHEN, JJ., concur.


author: ROTHENBERG, J.

text:
    Lavontes McPHERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-46.
    District Court of Appeal of Florida, Third District.
    May 19, 2010.
    Lavontes McPherson, in proper person.
    Bill McCollum, Attorney General.
    Before SHEPHERD, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

The defendant, Lavontes McPherson, challenges the summary denial of his motion for postconviction relief alleging ineffective assistance of trial counsel pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for an evidentiary hearing.

The defendant was charged with aggravated battery on a law enforcement officer, leaving the scene of an accident with injuries, and fleeing a police officer at a high rate of speed. A jury returned a verdict finding the defendant guilty of leaving the scene of an accident with injuries and fleeing a law enforcement officer at a high rate of speed, but not guilty of aggravated battery on a law enforcement officer. Thereafter, the defendant was sentenced.

On direct appeal, the defendant argued that the trial court erred by denying his motion for mistrial based on the State’s improper closing argument. This Court affirmed, McPherson v. State, 7 So.3d 1111 (Fla. 3d DCA 2009), and entered its mandate on May 15, 2009.

On September 22, 2009, the defendant filed a timely rule 3.850 motion for post-conviction relief, asserting ineffective assistance of trial counsel based on the following facts. After the prospective jurors were sworn and the trial court read the charges to the jury, the trial court took a ten minute recess. During this recess, the prospective jurors interacted with police officers. After the recess, the jury was selected. On the following day, prior to the commencement of the proceedings, the defendant asked trial counsel if she had spoken to defendant’s brother regarding the jury’s contact with the police officers. In response, trial counsel acknowledged that the defendant’s brother informed her that members of the jury and police officers discussed the police officers’ opinion as to a defendant charged with fleeing or attempting to elude a law enforcement officer. The defendant requested that trial counsel inform the trial court of this matter so that the trial court could voir dire each juror about their conversation with the police officers and/or enter a mistrial. Trial counsel, however, refused to bring this matter to the trial court’s attention, and thereafter, the defendant was found guilty of two of the three charges.

In support of his motion, the defendant attached his brother’s sworn affidavit. The defendant’s brother averred that “some members of the jury panel ask[ed] the police officers outside the Court room [sic] what was their opinion about someone who is charged with leaving the scene of an accident on a police officer.” In response, the police officers stated that “every defendant of this charge must be found guilty.” Moreover, the defendant’s brother averred that he informed the defendant’s trial counsel of his observations.

The trial court summarily denied the defendant’s motion for postconviction relief because the issue raised in the motion— which the trial court characterized as “an issue regarding jury selection” — “should have been” raised on direct appeal. This appeal followed.

First, we disagree with the trial court’s characterization of the alleged claim as “an issue regarding jury selection.” Although the alleged interaction between the police officers and jurors took place during a recess in the jury selection process, the issue, in reality, is whether the jury had an inappropriate conversation with police officers, which biased the jurors against the defendant.

Second, contrary to the trial court’s conclusion, the defendant’s claim of ineffective assistance of trial counsel could not have been properly raised on direct appeal as the claim would not be apparent on the face of the record. Bruno v. State, 807 So.2d 55, 63 n. 14 (Fla.2001) (“A claim of ineffectiveness can properly be raised on direct appeal only if the record on its face demonstrates ineffectiveness.”); Desire v. State, 928 So.2d 1256, 1257 (Fla. 3d DCA 2006) (“As a general rule, claims of ineffective assistance of counsel are not ordinarily cognizable on direct appeal. The exception is when the error is apparent on the face of the record, which is rarely the case.”). Here, the defendant claimed that he had a private conversation with his trial counsel, requesting that she inform the trial court of the alleged conversation between the police officers and jurors so that the trial court could voir dire each juror about the alleged conversation and/or enter a mistrial. As the claimed error would not be apparent on the face of the record, the issue would not have been cognizable on direct appeal and was properly raised in a rule 3.850 postconviction motion. Accordingly, we reverse and remand for an evidentiary hearing. See State v. Vega, 983 So.2d 748 (Fla. 3d DCA 2008) (reversing the summary grant of a rule 3.850 motion and remanding for an evidentiary hearing, noting that the “rule provides only for a summary denial of a post-conviction motion if the record shows conclusively that the defendant is not entitled to relief’ and “[i]f it does not, an evidentiary hearing is required”).

Reversed and remanded.

      . The defendant asserted in its motion that following the recess, but prior to the jury returning to the courtroom, the trial judge notified the parties that “the jury is going to be in [sic] a minute, listen, the cops are sitting out there with the jury.”


text:
    Alexis RIVERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3315.
    District Court of Appeal of Florida, Third District.
    May 19, 2010.
    Alexis Rivera, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

Alexis Rivera (“Rivera”) appeals from the trial court’s order denying her motion to correct illegal sentence filed pursuant to rule 3.800(a), Florida Rule of Criminal Procedure. For the following reasons, we affirm the trial court’s denial.

In her motion, Rivera seeks an additional one hundred twenty-eight (128) days credit for time served. The trial court’s record attachment, ie., the June 12, 2009 plea colloquy, however, conclusively refutes Rivera’s claim. A review of the plea colloquy shows that Rivera knowingly and voluntarily waived her right to additional credit for time served. Rivera received the credit she agreed to — “credit from the last booking date of December 10, 2008.” Accordingly, we affirm the trial court’s order.

Affirmed.


text:
    Maurice CARMICHAEL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1586.
    District Court of Appeal of Florida, Third District.
    May 19, 2010.
    Maurice Carmichael, in proper person.
    Bill McCollum, Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before WELLS, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Shaw v. State, 26 So.3d 51 (Fla. 5th DCA 2009).


text:
    Eduardo GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1584.
    District Court of Appeal of Florida, Third District.
    May 19, 2010.
    Carlos J. Martinez, Public Defender, and Leslie Sealley, Special Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for appellee.
    Before WELLS, SHEPHERD, and SALTER, JJ.
   PER CURIAM.

The defendant appeals convictions for sexual battery on a child below the age of twelve and lewd and lascivious molestation of a child below the age of twelve. Finding no error in the issues raised on appeal, we affirm.

There is no merit to the defendant’s first issue that several of the prosecutor’s closing comments violated the defendant’s right to a fair trial. None of the comments were outside the bounds of proper closing arguments. Rudolph v. State, 832 So.2d 826, 828-29 (Fla. 3d DCA 2002); Bell v. State, 33 So.3d 724 (Fla. 1st DCA 2010). See Johnson v. State, 858 So.2d 1274 (Fla. 3d DCA 2003). Neither is there any error in the admission of the child’s hearsay statements. The trial court properly conducted a hearing and its findings complied with all the requirements of section 90.803(23), Florida Statutes (2005).

Therefore, the convictions are affirmed.


text:
    Oliver THOMAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-918.
    District Court of Appeal of Florida, Third District.
    May 19, 2010.
    Oliver Thomas, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

Oliver Thomas (“the defendant”) appeals the trial court’s order denying his motion for postconviction relief. We affirm.

On July 14, 2007, the defendant entered an open plea to the court, wherein he pled guilty to the charges in four separate felony cases and no contest in one felony case, resulting on September 24, 2008, in adjudications and concurrent thirty-year sentences to at least eight armed robberies. On May 4, 2009, the defendant filed a motion seeking postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850. After conducting an evidentiary hearing, the trial court entered an order denying relief on July 17, 2009.

On appeal, the defendant contends that the trial court erred in failing to appoint counsel to assist the defendant at the evi-dentiary hearing. A review of the record, however, reflects that the defendant’s motion was filed pro se, he did not request that a lawyer be appointed to assist him, he did not object to the proceedings below, and the issues he raised in his motion did not require the assistance of counsel. The issues raised revolved around whether the defendant’s plea was a free and voluntary plea. Accordingly, we affirm. See Graham v. State, 372 So.2d 1363, 1366 (Fla.1979) (holding that there is no duty to appoint counsel in a postconviction proceeding and some of the factors that should be considered are the complexity of the issues raised and the need for substantial research); Castor v. State, 365 So.2d 701, 703 (Fla.1978) (holding that “[t]he requirement of a contemporaneous objection is based on practical necessity and basic fairness in the operation of a judicial system. It places the trial judge on notice that error may have been committed, and provides him an opportunity to correct it at an early stage of the proceedings.”).

Affirmed.


author: WELLS, Judge.

text:
    PROFESSIONAL MEDICAL GROUP, INC., a/a/o Pedro Richetti, Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 3D10-1107.
    District Court of Appeal of Florida, Third District.
    May 19, 2010.
    Lopez & Best and Virginia M. Best, for petitioner.
    Michael J. Neimand, Miami, for respondent.
    Before WELLS, ROTHENBERG and LAGOA, JJ.
   WELLS, Judge.

This is a petition for second-tier certio-rari in a case involving a claim for Personal Injury Protection (PIP) benefits. The petition is denied on authority of United Automobile Ins. Co. v. Santa Fe Medical Center, 21 So.3d 60 (Fla. 3d DCA2009) (en banc), petition for review pending, No. SC09-2100, proceedings stayed (Fla. Jan. 5, 2010).

Petition denied.


text:
    RELIANCE PROPERTY MANAGEMENT, INC., Appellant, v. TRANSPORTATION EQUIPMENT SPECIALISTS, INC., Appellee.
    No. 3D09-411.
    District Court of Appeal of Florida, Third District.
    May 19, 2010.
    Feldman Koenig Highsmith & Van Loon and David Van Loon, Key West, for appellant.

      Garcia & Smith and Manuel E. Garcia, Key West, for appellee.
    Before COPE, SHEPHERD and SUAREZ, JJ.
   On Rehearing

PER CURIAM.

On consideration of the motion for rehearing filed by plaintiff-appellant Reliance Property Management, Inc., the court ■withdraws its previous opinion and substitutes the following opinion.

This is an appeal of an order granting a motion to transfer venue from Monroe County to Duval County, Florida. Upon consideration of the appendix filed by the plaintiff, the motion to transfer venue filed by defendant-appellee Transportation Equipment Specialists, Inc. asserted both improper venue and a request for transfer of venue for the convenience of the parties and witnesses under section 47.122, Florida Statutes (2008). The limited record provided in the plaintiffs appendix does not demonstrate any abuse of discretion by the trial court. See Garcia v. Garcia, 958 So.2d 947 (Fla. 3d DCA 2007). Accordingly, the order now before us is affirmed.


text:
    Tavoris Montrell BROWN, Petitioner, v. Timothy P. RYAN, Director of Miami-Dade County Department of Corrections, and The State of Florida, Respondents.
    No. 3D10-1278.
    District Court of Appeal of Florida, Third District.
    May 20, 2010.
    Carlos J. Martinez, Public Defender, and Brian L. Ellison, Assistant Public Defender, for petitioner.
    Bill McCollum, Attorney General, and Heidi Milan Caballero, Assistant Attorney General, for respondents.
    Before SHEPHERD, CORTINAS, and SALTER, JJ.
   PER CURIAM.

We grant Tavoris Montrell Brown’s petition for writ of habeas corpus and direct the trial court to conduct a rule 3.131 pretrial release hearing. This decision is without prejudice for the State to file a motion for pretrial detention, should it choose to do so. See Ho v. State, 929 So.2d 1155 (Fla. 5th DCA 2006). The trial court is directed to hold the hearing no later than three business days following the issuance of this opinion. See id.

Petition granted; cause remanded.


author: GRIFFIN, J.

text:
    LASALLE BANK NATIONAL ASSOCIATION, etc., Appellant, v. Daisy E. ALICEA a/k/a Daisy Alicea, etc., Appellee.
    No. 5D09-2129.
    District Court of Appeal of Florida, Fifth District.
    May 21, 2010.

      Dana Marie Opitz and Charles P. Guf-ford, of Butler & Hosch, P.A., Orlando, for Appellant.
    Harlan L. Paul, of Paul & Elkind, P.A., DeLand, for Appellee.
   GRIFFIN, J.

LaSalle Bank National Association, as Trustee for Merrill Lynch First Franklin Mortgage Loan Trust, Mortgage Loan Asset-Backed Certificates, Series 2007-3 [“LaSalle”] appeals the trial court’s non-final order denying its objection to sale and emergency motion to vacate summary final judgment and to vacate foreclosure sale and to return funds to the third party purchaser.

On December 4, 2008, LaSalle filed a complaint to foreclose a mortgage on real property owned by Daisy E. Alicea a/k/a Daisy Alicea [“Alicea”] that she had purchased in 2007 for $225,000. Thereafter, in March 2009, LaSalle filed a motion for summary final judgment and notice of a hearing to be held on April 14, 2009. On that date, the trial court entered its summary final judgment of foreclosure, finding that $201,019.00 was due and owing to LaSalle and scheduling the foreclosure sale for May 14, 2009.

On May 12, 2009, LaSalle filed a motion to cancel/vacate foreclosure sale, stating: “Since the date of the entry of the Final Judgment of Foreclosure and the notice of sale, the borrowers have entered into a Non-FNMA Home Affordable Modification Program in an effort to retain their home and avoid the sale of their home.” The trial court denied the motion without a hearing, using a “DENIED” stamp with a handwritten date of May 13, 2009. La-Salle then filed a renewed motion to cancel/vacate foreclosure sale, providing: “Since the date of the entry of the Final Judgment of Foreclosure and the notice of sale, the borrowers have entered into arrangements with the Plaintiff for a short sale of the property, which sale is scheduled to take place on May 20, 2009.” A docket entry indicates that the trial court denied the renewed motion.

On May 14, 2009, the foreclosure sale took place as scheduled, at which “Equitable Gain Inc.” purchased the property for a bid of $8,000.00. “Equitable Gain Inc.” provided proof of publication on May 15, 2009.

LaSalle filed an objection to the sale and an emergency motion to vacate summary final judgment and to vacate foreclosure sale and to return funds to the third party purchaser. It asserted that the judicial sale of the property should be set aside because the sale price was grossly inadequate. LaSalle stated that Alicea “purchased the property for the amount of $225,000.00 on 08/28/2007” and that the current tax appraisal value was $160,644.00. LaSalle noted other irregularities: that the affidavits filed in support of its motion for summary final judgment were not in compliance with the time requirements of Florida Rule of Civil Procedure 1.510(c), and the sale should not have taken place because proof of publication of the notice of sale had not been filed with the Clerk prior to the sale date. The trial court again denied LaSalle’s objection and motion without a hearing, using the “DENIED” stamp with a handwritten date of May 20, 2009. On May 27, 2009, the Clerk filed a certificate of title, which showed that the property was sold to Third Party Purchasers as follows: “HILL & BECK-MAN INC 2/3, AND TAMCO CORP OF VOLUSIA COUNTY 1/3.... ”

LaSalle filed a motion for rehearing or in the alternative motion to vacate certificates of sale and title. It asserted in part:

16. Plaintiff timely filed an Objection to Sale and Emergency Motion to Vacate Summary Final Judgment and to Vacate Foreclosure Sale and To Return Funds to Third-Party Purchasers, objecting to the sale on the grounds set forth hereinabove.
17. The Court held no hearing on the Objection to sale and made no written ruling on same, and on May 27, 2009, the Court entered the Certificate of Title to the third-party purchaser.

In support of its motion, LaSalle filed the affidavit of Charles P. Gufford, an attorney with Butler & Hosch, P.A., who was primarily responsible for representing La-Salle. The following statements were among those sworn to in the affidavit:

7. Prior to the 05/14/2009 sale, the undersigned counsel filed two (2) separate motions to cancel the sale (on 05/12/20[0]9 and 05/13/2009, respectively), as the borrower and lender had entered into a short sale, wherein the parties would equitably resolve the matter short of a judicial sale.
8. Both motions to cancel the sale were denied by the Court without providing any ruling of law as to the denials.
13. An Objection to Sale was timely filed by the Plaintiff on 05/19/2009, which is five (5) days after the sale, well within the ten (10) days in compliance with Fla. Stat. 45.031.
14. The Court held no hearing on the Objection to sale and on May 27, 2009, the Certificate of Title was issued to the third-party purchaser.

The trial court denied the motion; the motion bears a “DENIED” stamp, with the handwritten date of June 3, 2009, and a reference to the previous order dated May 20, 2009.

This case is virtually identical in all material respects to two other cases recently before this Court. U.S. Bank Nat’l Ass’n v. Bjeljac, 17 So.3d 862 (Fla. 5th DCA 2009) and Wells Fargo Bank, N.A. v. Lupica, 17 So.3d 864 (Fla. 5th DCA 2009). The trial judge was the same in all three of these cases and the procedure he consistently followed is the problem.

In the U.S. Bank case, the lender sought to cancel and to reset a scheduled foreclosure sale, which the court denied without a hearing using a “DENIED” stamp. The lender’s subsequent Objection to Sale, Motion to Return Third Party Funds, to Vacate Certificate of Sale and to Set Aside Foreclosure Sale met the exact same fate. In the Wells Fargo case, the lender initially sought to cancel the foreclosure sale before it occurred, representing to the court that a modification agreement had been reached with the defendant homeowners. This motion was denied without a hearing, using a “DENIED” stamp. Thereafter, Wells Fargo filed a Motion to Vacate the Foreclosure Sale, again attempting to enter into a forbearance agreement with the defendant homeowner that would provide them with the opportunity to save their home. As with all the other motions, no hearing and a simple “DENIED” stamp disposed of the motion.

In this case, as in the Wells Fargo and U.S. Bank cases, there is nothing establishing that the documents bearing these executed “denied” stamps were filed with the clerk of the court or when they were filed. As with the Wells Fargo and U.S. Bank cases, these orders cannot be considered properly rendered or final. We elect to treat this matter as a premature appeal and relinquish jurisdiction to the trial court for a period of thirty days for properly rendered orders. Because the trial judge involved in these cases is no longer on the bench, the successor judge will necessarily have to consider the motions de novo.

In this case, as in the Wells Fargo and U.S. Bank cases, there is also no reason we can discern why denial of the plaintiff lender’s repeated motions to cancel the foreclosure sale should not have been granted, and the procedure followed by the trial judge leaves us in doubt that the motions were given any merits consideration. Accordingly, in order to enable meaningful appellate review, if the trial court again denies LaSalle’s motions, it must provide reasons.

JURISDICTION RELINQUISHED.

SAWAYA and LAWSON, JJ., concur.

      . Hill & Beckman, Inc. and Tamco Corporation of Volusia County [‘‘Third Party Purchasers”] have been granted leave to join as a party appellee in the instant appeal.

      . On June 9, 2009, LaSalle also filed the affidavit of Alicea, confirming her agreement with LaSalle for a “short sale” of her property.


author: SAWAYA, J.

text:
    Debra CLARK, Appellant, v. Brett CLARK, Appellee.
    No. 5D09-672.
    District Court of Appeal of Florida, Fifth District.
    May 21, 2010.

      Michael H. Gotschall, Winter Park, and Wallace Rudolph, of CPLS, P.A., Orlando, for Appellant.
    Robyn A. Hudson, Curtis A. Elmore, and Melanie S. Posson, of Law Offices of Robyn A. Hudson, P.A., Tavares, for Ap-pellee.
   SAWAYA, J.

The mother, Debra Clark, appeals the trial court’s post-dissolution order temporarily transferring primary residential custody of the parties’ now ten-year-old son to the father, Brett Clark. The mother contends that the father failed to plead and prove a substantial change in circumstances sufficient to warrant a change in custody.

The parties’ marital settlement agreement provided that the mother was to be the primary residential parent, and thus the child resided with the mother during the pendency of the dissolution. As the dissolution proceedings progressed, the child started to experience emotional problems. Ultimately, the final judgment incorporated the settlement agreement and ordered that the mother have primary residential responsibility for the child.

A few weeks after the final judgment was rendered, the father filed a Supplemental Petition for Modification of the final judgment, seeking to have primary custody changed to himself. However, before that petition could be heard, the father filed a Motion for Temporary Custody of Minor Child, alleging that it was in the best interests of the child that the father be given temporary custody until the issues between the parties could be resolved. . An evidentiary hearing was held, and the trial court entered the order we now review changing temporary custody to the father.

In order to prevail on a petition for change of custody, including a petition for temporary change, the petitioner must plead and prove, and the trial court must find, the following: 1) a substantial change of circumstances occurred since entry of the previous custody order that was not reasonably contemplated when the previous order was entered; and 2) the requested change of custody is in the best interests of the child. Mesibov v. Mesibov, 16 So.3d 890 (Fla. 5th DCA 2009); Haddix v. Emret, 992 So.2d 883 (Fla. 2d DCA 2008); Argamon v. Argamon, 949 So.2d 266, 267 (Fla. 4th DCA 2007); Small v. Fluegel-Small, 943 So.2d 897, 899 (Fla. 5th DCA 2006); Foster v. Pearson, 925 So.2d 1136 (Fla. 5th DCA 2006); Glover v. Glover, 820 So.2d 324, 325 (Fla. 5th DCA 2001) (“This test applies whether the party seeks a temporary or permanent modification of custody after the entry of the original final judgment.”); Wilson v. Roseberry, 669 So.2d 1152, 1154 (Fla. 5th DCA 1996); Schweinberg v. Click, 627 So.2d 548 (Fla. 5th DCA 1993). The first requirement is a prerequisite of the second. Mesibov, 16 So.3d at 892. This court has described the petitioner’s burden as “extraordinary.” Id. at 891; Adorno v. Rivera, 847 So.2d 1018, 1019 (Fla. 5th DCA 2003). Hence, while a trial court has discretion in awarding custody, that discretion is more restricted when modifying previously entered custody orders. Mesibov, 16 So.3d at 891 (citing Wade v. Hirschman, 903 So.2d 928, 935 (Fla.2005); Cooper v. Gress, 854 So.2d 262, 265 (Fla. 1st DCA 2003)); Miller v. Miller, 671 So.2d 849 (Fla. 5th DCA 1996); Schweinberg.

Here, the father’s petition for temporary custody does not allege, and the father failed to prove, a substantial and material change of circumstances. Although the child has emotional problems, that fact was recognized before the court ever signed the dissolution judgment and thus could not have been relied upon as a substantial change of circumstance. Moreover, the trial court did not make a finding of substantial and material change of circumstances. As the court in Bon v. Rivera, 10 So.3d 193 (Fla. 4th DCA 2009), explained:

“In the absence of a properly pled modification petition, it is error to enter a modification order. Further, if the noncustodial parent fails to allege that a substantial and material change has occurred and the trial court fails to make a similar finding, the modification order should be reversed.” Bartolotta v. Bartolotta, 687 So.2d 1385, 1387 (Fla. 4th DCA 1997) (citation omitted); see also Kilgore v. Kilgore, 729 So.2d 402, 405 (Fla. 1st DCA 1998) (“A modification order should be reversed if the noncustodial parent fails to allege the occurrence of a substantial and material change of circumstances, and the trial court fails to make a finding to that effect.”).

Id. at 195; see also Miller v. Miller, 992 So.2d 346, 348 (Fla. 3d DCA 2008) (“We review the instant custody modification determination de novo and reverse because the Father neither pled nor proved ‘that the circumstances have substantially, materially changed since the original custody determination, and ... that the child’s best interests justify changing custody.’ ” (quoting Wade, 903 So.2d at 931 n. 2)). Hence, the failure to plead and prove a substantial change of circumstances and the lack of appropriate findings in the order under review require reversal.

The father argues at some length the fact that the temporary change was in the child’s best interests. However, as previously explained, to warrant a change in custody, there first must be evidence of a substantial change of circumstances; the requirement of the best interest of the child is not sufficient by itself to meet the petitioner’s burden to establish a change in child custody. Mesibov, 16 So.3d at 892; Adorno, 847 So.2d at 1019 (holding that while change in custody may be in child’s best interest, the order granting change of custody must be reversed because petitioner did not prove substantial change in circumstances). We explained in Mesibov:

The preliminary question of a substantial and material change is a prerequisite to considering the best interests of the child under section 61.13(2)(d), Florida Statutes. Ogilvie v. Ogilvie, 954 So.2d 698, 700 n. 2 (Fla. 1st DCA 2007), citing Wade, 903 So.2d at 933-34. Because the father failed to satisfy the extraordinary burden of showing a substantial and material change, we need not address the best interest analysis under section 61.13(2)(d). If the noncustodial parent fails to establish that a substantial and material change has occurred, the modification order should be reversed. Bartolotta, 687 So.2d at 1387, citing Evans v. Evans, 490 So.2d 1035 (Fla. 1st DCA 1986).

Mesibov, 16 So.3d at 892.

We conclude the trial court abused its discretion in entering the temporary order changing custody to the father. That order is reversed, and this case is remanded to the trial court for further proceedings.

REVERSED and REMANDED.

MONACO, C.J. and PALMER, J., concur.

      . Inexplicably, although ordering that the mother have visitation with the minor child every other weekend, the trial court held: “If the minor child desires to spend more time with the Petitioner/Former Wife, then he shall be allowed to do so. If the minor child desires to spend less time with the Petitioner/Former Wife, then he shall be allowed to do so.” Such an order improperly places decisions with regard to visitation in the hands of the child.


text:
    Mohamed S. RASHID, Appellant, v. Shanta RASHID, Appellee.
    No. 5D08-2805.
    District Court of Appeal of Florida, Fifth District.
    May 21, 2010.

      Mark A. Skipper, Orlando, for Appellant.
    Amanda R. Jacobson of Jacobson, McClean, Chmelir & Ferwerda, Winter Springs, for Appellee.
   SAWAYA, J.

Mohamed Rashid (Husband) appeals the Final Judgment of Dissolution of Marriage. He asserts that the trial court erred by: 1) awarding Shanta Rashid (Wife) sole parental responsibility of the parties’ daughter; 2) failing to make specific findings of fact to support the order requiring Husband to obtain insurance to secure his alimony and child support obligations; and 3) awarding Wife’s attorney’s fees.

It is not necessary to give a detailed narration of the facts and circumstances of these dissolution proceedings. It is sufficient to say that Wife filed a petition to end her twenty-two-year marriage to Husband and requested, among other things, alimony, child support, attorney’s fees, and shared parental responsibility. The court granted Wife’s request for attorney’s fees and awarded Wife alimony and child support, requiring Husband to secure the alimony and support obligations with life insurance. Regarding Wife’s request for shared parental custody, the court went beyond the relief requested in Wife’s petition and awarded her sole parental responsibility for the parties’ teenage daughter, thus giving rise to the first issue asserted by Husband in this appeal.

Shared parental responsibility is statutorily required unless the court specifically finds that it would be detrimental to the child. § 61.13(2)(b)2., Fla. Stat. (2006). The courts have consistently held that without such a finding, an award of sole parental responsibility is inappropriate. Schram v. Schram, 932 So.2d 245, 250 (Fla. 4th DCA 2005); Stelk v. Stelk, 699 So.2d 811, 812 (Fla. 1st DCA 1997); Griffin v. Griffin, 665 So.2d 352, 352-53, (Fla. 1st DCA 1995); Longo v. Longo, 576 So.2d 402, 402 (Fla. 2d DCA 1991) (citing Hicks v. Hicks, 511 So.2d 628 (Fla. 2d DCA 1987)); see also Maslow v. Edwards, 886 So.2d 1027, 1028 (Fla. 5th DCA 2004) (applying the statute and the requirement of appropriate findings to paternity actions). The trial court did not make the necessary finding in the final judgment. We note, parenthetically, that Wife requested primary residential parental responsibility, not sole parental responsibility, and that she concedes this error. See Furman v. Furman, 707 So.2d 1183, 1183 (Fla. 2d DCA 1998). Accordingly, reversal of this part of the judgment is proper with remand to the trial court to revisit Wife’s request for shared parental responsibility and to make appropriate findings. Schram; Stelk

The second issue arises from that part of the final judgment requiring Husband to obtain two life insurance policies, one to provide $300,000 in coverage to secure his alimony payments and the other for $100,000 in coverage to secure his child support payments. The courts are statutorily authorized to order the obligor to maintain life insurance to protect alimony awards and child support obligations, see § 61.08(3), Fla. Stat. (2006); § 61.13(l)(c), Fla. Stat. (2006), when “appropriate circumstances” exist to justify the award. Sobelman v. Sobelman, 541 So.2d 1153, 1154-55 (Fla.1989). “ ‘Appropriate circumstances’ may include the dire impact that the sudden death of the obligated party would have on the receiving party.” Duffey v. Duffey, 972 So.2d 290, 291 (Fla. 5th DCA 2008). In ordering this protection, the court should consider the “availability and cost of such insurance and the financial impact it will have on the former husband.” Lorman v. Lorman, 633 So.2d 106, 108 (Fla. 2d DCA 1994); see also Kotlarz v. Kotlarz, 21 So.3d 892, 893 (Fla. 1st DCA 2009); Schoditsch v. Schoditsch, 888 So.2d 709, 709 (Fla. 1st DCA 2004); Burnham v. Burnham, 884 So.2d 390, 392 (Fla. 2d DCA 2004).

The final judgment should include appropriate findings regarding the availability and cost of insurance, the ability of the obligor to pay, and the appropriate circumstances that justify the insurance requirement. Kotlarz; Duffey; Smith v. Smith, 912 So.2d 702, 704 (Fla. 2d DCA 2005); Schoditsch. Here, the trial court made no findings to support the order of life insurance, and Wife concedes the error. Accordingly, we reverse that part of the judgment ordering Husband to maintain life insurance and remand for further proceedings to allow the trial court to include appropriate findings regarding the insurance requirement or to remove the insurance requirement from the final judgment. Duffey; Smith; Schoditsch; Burnham.

The last issue concerns Husband’s claim that the trial court erred in awarding $11,500 to Wife for attorney’s fees. Husband claims Wife failed to show actual need and, after inequitable distribution in her favor, Wife is in the superior financial position and able to pay her own attorney’s fees. Awards of attorney’s fees in dissolution cases are governed by section 61.16(1), Florida Statutes (2006). Because the purpose of this statute is to ensure that each party has the ability to obtain competent counsel, the most important considerations are the financial ability to pay fees and the need of the party requesting fees. Lovell v. Lovell, 14 So.3d 1111, 1116-17 (Fla. 5th DCA 2009). The need and ability to pay are determined by the trial court at the conclusion of the proceedings. Id.

“After making a truly equitable distribution of marital assets it is inequitable to diminish the assets awarded either party by requiring one party to pay the litigation costs of the other where each party has substantially equal ability to pay their own costs and expenses.” McIntyre v. McIntyre, 434 So.2d 61, 62 (Fla. 5th DCA 1983). Hence, it is an abuse of discretion to award attorney’s fees if the dissolution decree leaves both parties in equal financial positions. Lovell; Matajek v. Skowronska, 927 So.2d 981, 988 (Fla. 5th DCA 2006); Rosado v. Rosado, 855 So.2d 1199, 1201 (Fla. 5th DCA 2003); Schiller v. Schiller, 625 So.2d 856, 862 (Fla. 5th DCA 1993). Here, the trial court did more than place Wife in an equal position to Husband; instead, the trial court inequitably distributed assets and placed Wife in a superior position to Husband.

Wife responds that the fees were awarded to punish Husband for his misconduct during the dissolution proceedings. Specifically, she contends that Husband engaged in bad faith delay tactics that caused her to incur unnecessary fees as the proceedings progressed. Although there is authority for awards of fees in such circumstances, see Rosen v. Rosen, 696 So.2d 697 (Fla.1997); Sumlar v. Sumlar, 827 So.2d 1079 (Fla. 1st DCA 2002); Becker v. Becker, 778 So.2d 438 (Fla. 1st DCA 2001); Mettler v. Mettler, 569 So.2d 496 (Fla. 4th DCA 1990), there are no specific findings in the final judgment indicating that Husband’s misconduct is the reason for the fee award other than reference in the first numbered paragraph of the judgment to Husband’s noncompliance with certain discovery matters. We, therefore, reverse the award of attorney’s fees. On remand, if the trial court made the award because of Husband’s misconduct, appropriate findings should be included in the judgment to support the award.

Those portions of the final judgment awarding sole parental responsibility to Wife, requiring Husband to obtain life insurance, and awarding attorney’s fees to Wife are reversed and the case is remanded for further proceedings consistent with this opinion.

AFFIRMED in part; REVERSED in part; and REMANDED.

MONACO, C.J. and PALMER, J., concur.

      . Husband also asserts that the trial court failed to make specific findings of fact to support the alimony award. We affirm as to this issue without further comment.

      . Too, in the final judgment, the court made what can only be characterized as an inequitable distribution to Wife. The final judgment gives the reasons for the inequitable distribution, and Husband does not raise the inequity as an issue in this appeal.

      . This requirement is now found in section 61.13(2)(c)(2), Florida Statutes (2009).