Portwood v. Portwood

261 So. 3d 670
CourtDistrict Court of Appeal of Florida
DecidedNovember 30, 2018
DocketCase No. 5D17-2713
StatusPublished

This text of 261 So. 3d 670 (Portwood v. Portwood) 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
Portwood v. Portwood, 261 So. 3d 670 (Fla. Ct. App. 2018).

Opinion

HARRIS, J.

Christine Portwood ("Former Wife") filed a motion with the trial court seeking to enforce the alimony obligations contained in her final judgment of dissolution of marriage and seeking to hold David Portwood ("Former Husband") in contempt for failure to pay alimony. Both parties have appealed the trial court's order, which confirmed Former Husband's alimony obligation but found that he could not be held in contempt for non-payment under principles of res judicata. We agree with Former Wife in her cross-appeal that the trial court erred in concluding that res judicata barred consideration of her motion for contempt and reverse on that ground. In all other respects, we affirm.

In 2007, the trial court entered a final judgment dissolving the parties' marriage. That final judgment incorporated a marital settlement agreement in which the parties agreed that Former Husband would pay two forms of spousal support-non-modifiable monthly alimony and "additional alimony" in an amount equal to the monthly mortgage payment on the former marital residence.

In March 2015, Former Wife filed a motion, seeking to hold Former Husband in contempt for, among other things, failing *672to pay his monthly alimony obligation. The motion made no mention of Former Husband's additional alimony obligation related to the mortgage. The trial court granted Former Wife's motion and ordered Former Husband to pay the arrearage and to continue making his monthly payments in compliance with the marital settlement agreement. The parties subsequently executed, and the court approved, a joint stipulation that reduced Former Husband's monthly alimony payment. A paragraph in the joint stipulation provided that Former Husband's obligation to make the mortgage payments would remain in effect and not be altered by the other terms of the stipulation. Former Husband unilaterally crossed through this paragraph and initialed it; Former Wife did not.

Even prior to the joint stipulation, Former Husband stopped paying his additional alimony obligation, i.e., the monthly mortgage payment. In April 2017, Former Wife filed a motion for contempt and to compel Former Husband to execute documents that would allow a modification of the mortgage. A month later, she filed an amended motion, again seeking to hold Former Husband in contempt for failure to pay the additional alimony. The trial court entered two orders in response to Former Wife's motions. In its June 28, 2017 order, the court specifically found that the 2015 joint stipulation only modified Former Husband's traditional monthly alimony and that despite his attempt to strike through clarifying language in the 2015 joint stipulation, the mortgage component of Former Husband's alimony obligation remained unchanged. The court then denied the motion to compel the refinance of the mortgage, finding that the original agreement provided that refinancing would be solely at Former Husband's election.

Approximately three weeks later, the court entered the second order declining to to hold Former Husband in contempt for failure to pay the mortgage payments following the 2015 joint stipulation, finding that Former Husband mistakenly believed that he was no longer responsible for those payments. The court then determined that, under principles of res judicata, it could not hold Former Husband in contempt for his failure to pay the mortgage obligation prior to the 2015 joint stipulation. Even though Former Wife argued that she never raised the issue of Former Husband's failure to comply with the mortgage component prior to 2015, the court concluded that she could have raised the issue and therefore res judicata applied. This was error.

Initially, there is no merit to Former Husband's argument that the 2015 joint stipulation, which he unilaterally altered, somehow amounts to an express waiver by Former Wife of her right to receive the additional alimony payments. The trial court did not abuse its discretion in concluding in the first order that the parties only intended to modify Former Husband's traditional alimony obligation, and the decision of the trial court as it relates to the mortgage component of the alimony obligation in the first order is affirmed.

Similarly, the trial court did not abuse its discretion in finding that Former Husband reasonably, albeit mistakenly, believed that the mortgage obligation terminated upon the court's approval of the 2015 joint stipulation. However, the court erred in concluding that res judicata prevented it from considering whether Former Husband's refusal to pay the mortgage payments prior to the joint stipulation could be considered contumacious.

*673While the trial court was correct that the principle of res judicata applies to all matters that have been or could have been litigated, four identities must occur simultaneously: "(1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the actions; and (4) identity of the quality or capacity of the persons for or against whom the claim is made." Pearce v. Sandler, 219 So.3d 961, 966 (Fla. 3d DCA 2017) (quoting Tyson v. Viacom, Inc., 890 So.2d 1205, 1209 (Fla. 4th DCA 2005) ). If any of these are not met, res judicata does not bar the second action. Tyson, 890 So.2d at 1209. At a minimum, the first two of the four identities are not met in this case, barring the application of res judicata.

First, with respect to the identity of the thing sued for, this Court has looked to whether the facts and evidence necessary to prove one cause of action are distinct from those needed to prove another. Inter-Active Servs., Inc. v. Heathrow Master Ass'n, 809 So.2d 900, 902-03 (Fla. 5th DCA 2002). Here, Former Wife filed two distinct motions related to two distinct alimony obligations. In her first motion, she sought primarily to recover non-modifiable alimony payments. At no point in the first motion were Former Husband's additional alimony obligations ever mentioned. In the second motion, however, Former Wife sought an order requiring Former Husband to make payments on the outstanding mortgage and sanctions for his failure to do so. Thus, the first identity is not met.

The second identity is similarly absent. "Identity of the causes of action is established where the facts which are required to maintain both actions are identical." Gold v. Bankier, 840 So.2d 395, 397 (Fla. 4th DCA 2003) (quoting Cole v. First Dev. Corp. of Am., 339 So.2d 1130, 1131 (Fla. 2d DCA 1976) ). Further, although both actions have some overlapping facts, this does not bar the second action under res judicata. Tyson, 890 So.2d at 1210.

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Related

Tyson v. Viacom, Inc.
890 So. 2d 1205 (District Court of Appeal of Florida, 2005)
Inter-Active Services, Inc. v. HEATHROW MASTER ASSOCIATION, INC.
809 So. 2d 900 (District Court of Appeal of Florida, 2002)
Cole v. First Development Corporation of America
339 So. 2d 1130 (District Court of Appeal of Florida, 1976)
Gold v. Bankier
840 So. 2d 395 (District Court of Appeal of Florida, 2003)
Pearce III v. Sandler
219 So. 3d 961 (District Court of Appeal of Florida, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
261 So. 3d 670, Counsel Stack Legal Research, https://law.counselstack.com/opinion/portwood-v-portwood-fladistctapp-2018.