Moss v. Moss

939 So. 2d 159, 2006 WL 2787414
CourtDistrict Court of Appeal of Florida
DecidedSeptember 29, 2006
DocketCase Nos. 2D03-478, 2D03-2355 consolidated
StatusPublished
Cited by5 cases

This text of 939 So. 2d 159 (Moss v. Moss) 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
Moss v. Moss, 939 So. 2d 159, 2006 WL 2787414 (Fla. Ct. App. 2006).

Opinion

939 So.2d 159 (2006)

HOWARD MOSS, Appellant,
v.
PATRICIA L. MOSS Appellee.

Case Nos. 2D03-478, 2D03-2355 consolidated.

District Court of Appeal of Florida, Second District.

Opinion filed September 29, 2006.

Cynthia L. Greene of Law Offices of Greene, Smith & Associates, P.A., Miami; and David M. Wall of Law Offices of David M. Wall, Clearwater, for Appellant.

Joseph R. Park and Michael J. Park, Park and Ossian, P.A., Clearwater, for Appellee.

STRINGER, Judge.

On remand from the Florida Supreme Court, Howard Moss (the Husband) challenges the trial court's determination that he was not entitled to an award of attorney's fees against his former wife, Patricia Moss (the Wife). The supreme court did not make a decision in this case, but instead remanded for this court to reconsider its previous opinion in light of the supreme court's decision in Lashkajani v. Lashkajani, 911 So. 2d 1154 (Fla. 2005), concerning the validity and enforceability of prevailing party attorney's fee provisions in prenuptial agreements. We again affirm.

FACTS

Underlying Facts

The parties were married on February 14, 1993, in Reno, Nevada. At the time of the marriage, the parties were living in Illinois, where the Husband's family owned several successful currency exchange businesses. The Wife had worked for one of these businesses before the marriage. Because of the Husband's significant preexisting wealth and ownership interest in the family businesses, the parties signed a prenuptial agreement ("the Agreement") before the marriage. Paragraph 18 of the Agreement provided, in pertinent part:

If either party breaches any provision of this Agreement, the breaching party or his or her estate shall indemnify the other party and make the other party whole as if no such breach had taken place with respect to this Agreement. . . . Further, the breaching party or his or her estate shall be liable for any attorney's fees, costs and expenses incurred by the other party in attempting to enforce the provisions of this Agreement.

Shortly after the marriage, the parties moved to Florida where they together began to investigate starting a new currency exchange business. Ultimately, the parties opened five currency exchange businesses in the Tampa/St. Petersburg area. There was undisputed testimony at the dissolution hearing that the Wife worked with the Husband to find business locations, coordinate the construction of the buildings, hire and train employees, and manage the day-to-day operations of the businesses. Even though the Wife spent as many, if not more, hours actually working for the businesses than the Husband did, the Wife was not paid a salary nor was she considered an employee. Moreover, the businesses were incorporated and held solely by the Husband and his brother. Thus, the Wife worked more than full time for these postmarital businesses, but she was not compensated for her efforts either by salary or through ownership. Instead, the Husband told the Wife that once she determined what she wanted to do, he would "repay" her by setting her up in a business that she could leave to her children.

In February 2001, the Wife filed a petition for dissolution. In that petition, the Wife admitted that the Agreement was valid and enforceable. She sought the lump sum payment due to her under the Agreement, and she sought the two years of alimony payments provided for by the Agreement. In addition, the Wife sought an award of temporary alimony while the dissolution proceedings were pending and an award of rehabilitative alimony so that she could complete her training as a massage therapist. She also sought to be awarded a "special equity" in the Florida businesses based on the services she had provided to those businesses and the Husband's postmarriage promises to set her up in another business. In seeking the awards of rehabilitative alimony and "special equity," the Wife contended that these claims were not barred by the Agreement because they were simply not addressed anywhere in it. Thus, the Wife's claims dealt with the interpretation and scope of what she admitted was a valid and enforceable prenuptial agreement. The Wife also sought an award of attorney's fees and costs pursuant to section 61.16, Florida Statutes (2001).

In response to the Wife's petition, the Husband argued that the claims for rehabilitative alimony and a "special equity" were within the scope of the Agreement and were barred by it. He also argued that any award of temporary alimony should be offset against the lump sum amounts due to the Wife under the Agreement. He further contested the Wife's interpretation of the Agreement as it applied to the lump sum payment, claiming that the length of the marriage, and thus the corresponding payment, should be determined based on when the petition was filed rather than when dissolution was actually granted. Finally, the Husband sought an award of his attorney's fees pursuant to section 57.105, Florida Statutes (2001), contending that the Wife's claims were frivolous in light of the plain language of the Agreement.

During the course of the proceedings, the Wife's claim for rehabilitative alimony became moot. In the final judgment of dissolution, which was rendered December 20, 2002, the trial court found that the Wife's claim for "special equity" in the Florida businesses was barred by the Agreement. However, the trial court agreed with the Wife that the temporary alimony paid during the pendency of the dissolution case was not an offset to either the lump sum payment or the two years of alimony payments provided for by the Agreement. In addition, the trial court agreed with the Wife's interpretation as to the determination of the proper lump sum owed under the Agreement.

After the hearing on the petition for dissolution but before the final judgment of dissolution was actually entered, both parties set a hearing on their claims for attorney's fees and costs for December 6, 2002. When that hearing was scheduled, the only pending motion for attorney's fees filed by the Husband was his motion seeking fees pursuant to section 57.105. There was no pending motion seeking an award of attorney's fees pursuant to paragraph 18 of the Agreement, and no such claim had been made in the Husband's answer to the Wife's petition.

Shortly before the December 6, 2002, hearing, the Husband cancelled the portion of the hearing dealing with his motion. Thus, the December 6 hearing dealt solely with the Wife's motion for attorney's fees and costs. At the start of the December 6 hearing, the Husband told the court that he had cancelled the hearing on his motion because the final judgment had not yet been entered. The sum total of the Husband's discussion concerning his motion for fees was as follows:

The Respondent's Motion for Attorney's Fees, Your Honor, is really based upon two different issues that will really be resolved when a final judgment is entered that addresses the issues that were tried before the Court.
Until that final judgment is entered, the issues that we want to address regarding provisions in the prenuptial agreement relating to the breach of contract provision, which is I believe paragraph eighteen that we are asserting, there was a breach of the contract here in that the Petitioner sought an award of benefits or entitlements that were waived in the prenuptial agreement. And again, until the final judgment addresses and resolves those, we are not in a position to move forward with our Motion for Attorney's Fees.
The other motion or the other issue that was pending is a 57.105 motion.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

SILVIA GORDON v. ROBERT FISHMAN, AS PERSONAL REPRESENTATIVE
District Court of Appeal of Florida, 2018
Gordon v. Fishman
253 So. 3d 1218 (District Court of Appeal of Florida, 2018)
Cox v. Cox
10 So. 3d 180 (District Court of Appeal of Florida, 2009)
CROSSINGS AT FLEMING ISLAND COMMUNITY DEV. DIST. v. Echeverri
991 So. 2d 793 (Supreme Court of Florida, 2008)
Roth v. Roth
973 So. 2d 580 (District Court of Appeal of Florida, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
939 So. 2d 159, 2006 WL 2787414, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moss-v-moss-fladistctapp-2006.