CLAIRE RICE KUCHERA v. JAY KUCHERA

230 So. 3d 135
CourtDistrict Court of Appeal of Florida
DecidedSeptember 27, 2017
Docket4D16-1375
StatusPublished
Cited by1 cases

This text of 230 So. 3d 135 (CLAIRE RICE KUCHERA v. JAY KUCHERA) is published on Counsel Stack Legal Research, covering District Court of Appeal of Florida primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
CLAIRE RICE KUCHERA v. JAY KUCHERA, 230 So. 3d 135 (Fla. Ct. App. 2017).

Opinion

Conner, J.

This is the third time the parties appear before us on appeal. The former wife appeals the final order entered after an evi-dentiary hearing on her motion for contempt. In the motion, the former. wife sought an adjudication of contempt against the former husband and a determination of the lump sum alimony arrearage which accrued for four -years.' The former wife argues the trial court erred by: (1) concluding there yvas a lack of jurisdiction to determine the arrearage for the years 2008 and 2009, (2) allowing the former husband to pay the arrearages owed for 2010 and 2011 at the rate of $3,000 monthly, and (3) failing to award prejudgment interest on the. arrearages. We affirm the trial court’s decision regarding the amount of the monthly payment on the arrearages without further-comment. We also affirm the trial court’s decision to -deny a determination of the arrearages owed for 2008 and 2009 and explain the reasons. However, we reverse the denial of prejudgment interest, and remand for further - proceedings to award prejudgment interest..

Background

During the marriage, the parties had periodic marital difficulties resulting in a post-conciliation marital settlement agreement (“MSA”) in 1992. The MSA was intended to resolve their differences in the future event that the parties separated and divorced. The MSA stipulated, among other things not pertinent to this appeal, that the husband would pay the former wife lump sum alimony by transferring certain accounts to her and paying one-half of his salary for ten years beginning on the date the marriage was dissolved.

The former wife filed to dissolve the marriage in 2003, wherein she sought to enforce the MSA. However, a pretrial order determined the MSA to be invalid. The 2006 final judgment dissolving the marriage determined that the former wife was entitled to $15,000.00 monthly as permanent periodic alimony.

. An appeal ensued, resulting in the case being remanded to the circuit court for another trial, after we determined the MSA was not invalid. During the January 2010 retrial, the forensic accountants of each, party testified as to the alimony amount that would have accrued as one-half of the former husband’s income for 2006 through 2009. Calculations of those figures were also presented by each party. At a post-trial hearing prior to the entry of the third amended final judgment, the former wife’s counsel stated:

MR. CHOPIN: [opposing counsel] and. I agree that there needs to be a final' number figured out in terms of the difference between alimony that was paid from May ’06 forward to alimony that should have been paid from May ’06 forward, but I think we can probably figure that out and submit that to the Court.

In the third amended final judgment entered on remand after retrial, the trial court determined that the parties’ MSA provides for the former wife to receive lump sum alimony with two components: (1) the value of certain accounts, including a profit-sharing account, and (2) one-half of the former husband’s salary for a period of ten years beginning on the date of the dissolution (as opposed tp the $16,000.00 monthly ordered after the first trial). Additionally, the court determined, that the amount to be included, as his salary inducted all amounts earned by the former husband, except distributions of his owner’s share of his former business interest, and excluding his’ child support obligation. However, for reasons unclear from the record, the third amended final judgment failed to determine what specific amounts were due to the former wife as the component of lump sum alimony representing one-half of the former husband’s income from 2006 forward. The trial court reserved jurisdiction to modify or enforce the judgment as circumstances demanded and the law permitted.

The former husband appealed the third amended final judgment and the former wife cross-appealed. However, significant to this appeal, neither .party raised the issue of the omission of a determination of the accrued arrearage of alimony representing one-half of the former husband’s salary.’

While the second appeal was pending, the former wife sought to enforce the lump sum alimony provisions of the third amended final judgment representing one-half of the former husband’s income by a motion for contempt, Specifically, the former wife alleged the former husband failed to pay the correct amount of alimony for the years 2008 through 2011. In response, the former husband filed a memorandum of law raising arguments of res judicata and lack of jurisdiction for the arrearages which accrued during 2008 and 2009, as well as arguments of waiver and laches for the arrearages which accrued during all four years.

After an evidentiary hearing, the trial court found the alleged alimony arrearages for 2008 and 2009 were fully litigated in the two-day trial conducted in January 2010, which resulted in the third amended final judgment. After observing that the third amended final judgment failed to determine the amount of those arrearages, the trial court stated:

When the Third Amended Final Judgment did not mention a number for the 2008 and 2009 arrears, the Former Wife was required to raise the omission issue in a timely motion for rehearing, but failed to do so. The Former Wife also had the right to appeal the omission, but chose not to do so, while appealing a number of other issues. Accordingly, the Former Wife’s Motion as to 2008 and 2009 arrears is DENIED for lack of jurisdiction.

The trial court also denied the motion for contempt as to the payments which accrued for 2010 and 2011 because the former husband paid what was owed according to the third amended final judgment. However, the trial court determined that the finding of no contempt did not resolve the issue of the correct amount of alimony that should have been paid for those two years. After considering the evidence, the trial court determined that the total alimony arrearage for 2010 and 2011 was $202,177.50. It further determined that an “equitable,” “just,” and “reasonable” repayment schedule would be $3,000 monthly. In exercising “sound discretion,” the trial court denied the former wife’s claim for prejudgment interest on the alimony arrearage. As justification for the denial of prejudgment interest, the trial court discussed the “scorched-earth mentality” of the former wife in prosecuting her entitlement to alimony, the finding by a previous judge that the MSA was unconscionable, the fact that in the previous four years the former husband received little to no net income from his sizable salary and had to use his inheritance and savings to meet his obligations under the MSA, including paying the former wife almost three million dollars for entitlements from 2010 forward.

The former wife gave notice of appeal of the final order on the motion for contempt.

Appellate Analysis

Failure to Determine Arrearages for 2008 and 2009

We review a trial court’s ruling on support arrearages for an abuse of discretion. See Galstyan v. Galstyan, 85 So.3d 561, 565 (Fla. 4th DCA 2012); Thompson v. Thompson, 989 So.2d 1237, 1239 (Fla. 4th DCA 2008) (“On its face, the order [for the monthly amount to be paid on rehabilitative alimony arrearage] is an abuse of discretion.”).

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Bluebook (online)
230 So. 3d 135, Counsel Stack Legal Research, https://law.counselstack.com/opinion/claire-rice-kuchera-v-jay-kuchera-fladistctapp-2017.