Tannenbaum v. Shea

133 So. 3d 1056, 2014 WL 51645, 2014 Fla. App. LEXIS 154
CourtDistrict Court of Appeal of Florida
DecidedJanuary 8, 2014
DocketNo. 4D13-1368
StatusPublished
Cited by16 cases

This text of 133 So. 3d 1056 (Tannenbaum v. Shea) 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
Tannenbaum v. Shea, 133 So. 3d 1056, 2014 WL 51645, 2014 Fla. App. LEXIS 154 (Fla. Ct. App. 2014).

Opinion

GROSS, J.

The former husband challenges an order issued under Florida Rule of Civil Procedure 1.540(b) vacating a portion of an agreed order that awarded a final money judgment for back child support. We reverse because there was no legal basis under the rule to grant relief.

The parties, both attorneys, stipulated to a final judgment of dissolution of marriage in 1999. Under the applicable child support guidelines, the former husband’s child support obligation calculated at $828.16 per month. Nonetheless, the agreed judgment provided that he would pay $1,300 per month in child support commencing December 1, 1999 and $1,500 per month commencing December 1, 2000, in addition to other education, medical, and wedding expenses.

Significantly, the agreed judgment provided that “[o]nly the amount due under the guidelines ($828.16) shall be enforceable by the [court’s] contempt powers” and that the other expenses were “not enforceable by the [court’s] contempt powers.”

Over the next nine years, the former husband neglected to pay much of his child support obligations or the education and medical expenses. This led to multiple contempt proceedings, motions to enforce the final judgment, and a motion to withdraw filed by the former wife’s attorney.

In 2008, the former husband notified the circuit court that the parties had reached a settlement agreement. On November 21, 2008, the circuit court entered an “Agreed Order Containing Money Judgment” that settled “all pending motions of the parties.” Using standard language for a final money judgment,1 the Agreed Order awarded the former wife a $70,000 money judgment against the former husband, with interest, and ordered that “execution issue forthwith.” Important for this appeal, paragraph 7 of the Agreed Order provided that the “Court retains jurisdic[1059]*1059tion of the action, but not of the money judgment contained herein.”

Over three years later, on April 4, 2012, the former wife moved for the enforcement of the $70,000 money judgment. The former husband responded that he was current on the $828.16 child support payments punishable by contempt; accordingly, he moved to dismiss the proceedings directed at the $70,000 judgment because the circuit court had divested itself of jurisdiction over the money judgment in paragraph 7 of the Agreed Order.

Even though she did not file a motion for rehearing directed at the Agreed Order, or take an appeal, the wife responded that she never agreed “to relinquish jurisdiction of this action.” She also moved the court to set aside that part of paragraph 7 divesting the court of jurisdiction as “against law, equity, public policy and for extrinsic fraud” so that the former wife would not “be denied [the] opportunity to obtain child support past due.”

Following a hearing, on March 25, 2013, the circuit judge entered an order denying former husband’s motion to dismiss for lack of jurisdiction. As to former wife’s argument that she never agreed to the provision at issue, the trial court determined that the language in the Agreed Order was “clear and unambiguous,” and that her claim was otherwise untimely raised. Nevertheless, relying upon the “well established law that parents may not contract away the rights of their child for support,” the court, pursuant to Rule 1.540(b)(4), struck the provision relinquishing jurisdiction over the money judgment, reasoning as follows:

[T]his Court finds that the language contained in the Agreed Order Containing Money Judgment ... relinquishing this Court of its jurisdiction over the Money Judgment for child support and related child expenses was not in the best interests of the child as it deprived the parents and/or child of the ability to enforce the Money Judgment in the state in which the child resides. Therefore, this language is void as against public policy and that portion of the Money Judgment is stricken and set aside.

The circuit court erred on both procedural and substantive grounds. First, the provision in the Agreed Order did not violate public policy because it did not preclude the former wife from seeking enforcement of the money judgment by instituting an action on a judgment in the civil division of a Florida circuit court or commencing collection proceedings in New York. Second, even if the provision were “void as against public policy,” it rendered the Agreed Order merely “voidable,” so that relief was not authorized under Florida Rule of Civil Procedure 1.540(b)(4).

Paragraph 7 of the Agreed Order divested the court of jurisdiction over the $70,000 money judgment. We read that to mean that the former wife was precluded from pursuing collection remedies within the context of the ongoing case in the family division of the circuit court. Nothing in the Agreed Order prevented the former wife from filing an action on the $70,000 judgment in the civil division of a Florida circuit court and pursuing her collection remedies in the newly filed action.

“Every judgment gives rise to a common law cause of action to enforce it, called an action upon a judgment.” Burshan v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 805 So.2d 835, 840-41 (Fla. 4th DCA 2001). The “main purpose of an action on a judgment, a separate cause of action from the original judgment, [i]s to obtain a new and independent judgment” which will ‘facilitate the ultimate goal of securing satisfaction of the original cause of action.’ ” Corzo Trucking Corp. v. [1060]*1060West, 61 So.3d 1285, 1288 (Fla. 4th DCA 2011) (quoting Burshan, 805 So.2d at 841). As we wrote in Corzo,

[i]n defending an action on a judgment, a “defendant cannot avail himself of defenses which he might have interposed in the original action.” Restatement (First) of Judgments § 47 cmt. e. However, a defendant may “interpose defenses which have arisen since the rendition of the judgment, such as payment, release, accord and satisfaction, or the [s]tatute of [l]imitations.” Id.

61 So.3d at 1288. In addition to filing an action on a judgment in Florida, the former wife also might have used the $70,000 judgment to collect from the former husband in New York.2

For these reasons, contrary to the circuit judge’s conclusion, the Agreed Order did not “contract away” the right of the child for support or deprive the child of the ability to enforce the money judgment in Florida. The order was therefore not void as against public policy.

The second reason for reversal derives from the operation of Rule 1.540(b)(4), which allows for relief from a “void” judgment but not a “voidable” one. If paragraph 7 was void as against public policy, then the Agreed Order was merely “voidable.”

“ ‘The general purpose of [rule 1.540(b) ] is to enable the court to grant relief against an unjust decree ....’” Smith v. Frank Griffin Volkswagen Inc., 645 So.2d 585, 588 (Fla. 1st DCA 1994) (quoting Cutler Ridge Corp. v. Green Springs, Inc., 249 So.2d 91, 93 (Fla. 3d DCA 1971)). “As an exception to the rule of finality,” Rule. 1.540’s application is “narrow,” Molinos Del S.A. v. E.I. DuPont de Nemours & Co., 947 So.2d 521, 524 (Fla. 4th DCA 2006), and is constrained by the time restrictions contained in the rule. See Wright v. Scott, 658 So.2d 1215, 1215 (Fla. 1st DCA 1995).

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Cite This Page — Counsel Stack

Bluebook (online)
133 So. 3d 1056, 2014 WL 51645, 2014 Fla. App. LEXIS 154, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tannenbaum-v-shea-fladistctapp-2014.