Serge Phanord v. Martine Phanord

• Court: District Court of Appeal of Florida
• Decided: May 14, 2025
• Docket: 3D2024-0818
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed May 14, 2025. Not final until disposition of timely filed motion for rehearing.

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No. 3D24-0818 Lower Tribunal No. 92-47785 ________________

Serge Phanord, Appellant,

vs.

Martine Phanord, Appellee.

An Appeal from the Circuit Court for Miami-Dade County, Marcia Del Rey, Judge.

Weinbaum P.A., and Lane Weinbaum (Coral Springs), for appellant.

Martine Phanord, in proper person.

Before EMAS, SCALES and GOODEN, JJ.

SCALES, J. Appellant Serge Phanord (Former Husband) appeals a final order

approving a general magistrate’s recommended order finding him in civil

contempt for failing to pay child support. We reverse because the general

magistrate erred by determining that Former Husband had waived his

equitable laches defense.

I. Relevant Background

Former Husband and appellee Martine Phanord (Former Wife) were

divorced in 1992. The final judgment required Former Husband to pay child

support for their two minor children. Approximately thirty years after the

divorce – and approximately twenty years after their youngest child reached

adulthood – Former Wife, pursuant to Florida Family Law Rule of Procedure

12.615(b), filed a motion in family court for indirect civil contempt, alleging

that Former Husband never made child support payments.

Pursuant to Florida Family Law Rule of Procedure 12.490(b), the trial

court referred Former Wife’s contempt motion to a general magistrate who

conducted an evidentiary hearing on April 4, 2024. During the hearing,

Former Husband attempted to raise an equitable laches defense. The

general magistrate, though, declined to consider laches because Former

Husband did not plead laches as an affirmative defense.

2 The next day, the general magistrate issued an order recommending

that the trial court grant Former Wife’s contempt motion.1 On April 9, 2024,

the trial court entered a final order granting wife’s contempt motion and

approving the general magistrate’s recommended order. Subsequently, the

trial court denied Former Husband’s motion to vacate the final order filed

pursuant to rule 12.490(e)(3). Former Husband timely appealed the trial

court’s final order.

II. Analysis2

A. Introduction

Former Husband argues three issues on appeal: (i) the findings in the

recommended order are not supported by competent, substantial evidence;

(ii) the trial court failed to make required findings pursuant to rule

12.615(d)(1); and (iii) Former Husband was denied due process when the

general magistrate declined to adjudicate Former Husband’s equitable

laches defense. Because we reverse the contempt order based on Former

1 In its recommended order, the general magistrate found that Former Husband owed Former Wife $32,400 in back child support. The recommended order required Former Husband to make monthly payments of $400 until the arrearage is paid in full. 2 Normally we review a contempt order entered pursuant to rule 12.615 under an abuse of discretion standard; here, we review de novo the issue of whether a trial court has complied with due process. Huerta v. Grajales, 357 So. 3d 153, 155 (Fla. 4th DCA 2023).

3 Husband’s due process claim, we need not, and therefore do not, address

the other issues raised by Former Husband.

B. Equitable Laches

At the hearing before the general magistrate, Former Husband tried to

argue an equitable laches defense.3 He maintained that Former Wife’s thirty-

year delay in filing her contempt motion prejudiced his ability to rebut her

claim with payment records.

The general magistrate, though, did not adjudicate Former Husband’s

laches defense. Rather, the general magistrate determined that Former

Husband had waived laches by not pleading it as an affirmative defense. The

general magistrate based this holding on his reading of Florida Family Law

Rule of Procedure 12.110(d), which requires that all affirmative defenses be

stated in the answer.4

3 “Laches is an omission to assert a right for an unreasonable and unexplained length of time, under circumstances prejudicial to the adverse party. It is an equitable defense, and its applicability depends upon the circumstances of each case. Delay alone in asserting a right does not constitute laches, and the burden is on the party who asserts the doctrine of laches to prove prejudice.” Ticktin v. Kearin, 807 So. 2d 659, 663 (Fla. 3d DCA 2001). 4 The general magistrate’s recommended order also referred generally to rule 12.120 (governing the pleading of special matters) and cited the case of Parra Del Rey v. Rey, 114 So. 3d 371, 386 (Fla. 3d DCA 2013), a case stating the general proposition that a failure to plead an affirmative defense

4 But a party needs to file an answer and affirmative defenses only in

response to a pleading. Fla. Fam. L. R. P. 12.100(c), (d). Former Wife’s

contempt motion, filed pursuant to rules 12.100(b) and 12.615(b), is not a

pleading. We see no provision in the Family Law Rules that required Former

Husband to file an answer, or any written response, to Former Wife’s

contempt motion. In our view, traditional notions of due process – along with

the express dictates of rule 12.615(b)5 – required the general magistrate both

to allow Former Husband to present his laches defense, and then to

adjudicate it. See Thilloy v. Ciccone-Capri, 289 So. 3d 18, 23 (Fla. 3d DCA

2019) (holding, in part, that the trial court erred in not considering a former

husband’s laches defense to arrearages); see generally Kane v. Kane, 247

So. 3d 57, 59 (Fla. 3d DCA 2018) (recognizing that the due process

considerations of notice and opportunity to be heard apply in family law civil

contempt proceedings brought pursuant to rule 12.615(b)).

While we express no opinion on the merits of this defense, the general

magistrate, in the contempt proceedings, should have allowed Former

of fraud in a party’s answer to a petition for marriage dissolution waives fraud as a defense. 5 In relevant part, rule 12.615(b) states that no civil contempt may be imposed “without providing the alleged contemnor with an opportunity to be heard.” Fla. Fam. L. R. P. 12.615(b).

5 Husband to maintain the defense. The general magistrate should have

adjudicated the defense, rather than finding that Former Husband waived

laches for failing to plead it as an affirmative defense.

Contempt order reversed without prejudice to Former Wife filing a

renewed contempt motion.