Tina Sieberg-Shabbick v. Michael Shabbick

• Court: District Court of Appeal of Florida
• Decided: April 24, 2024
• Docket: 2022-1694
• Status: Published

Opinion

Third District Court of Appeal State of Florida

Opinion filed April 24, 2024. Not final until disposition of timely filed motion for rehearing.

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No. 3D22-1694 Lower Tribunal No. 17-739-K ________________

Tina Sieberg-Shabbick, Appellant,

vs.

Michael Shabbick, Appellee.

An Appeal from the Circuit Court for Monroe County, Bonnie J. Helms, Judge.

Sandy T. Fox, P.A., Sandy T. Fox and Alisha B. Savani, for appellant.

Young, Berman, Karpf & Karpf, P.A., and Andrew S. Berman, for appellee.

Before LOGUE, C.J., and EMAS and GORDO, JJ.

GORDO, J. Tina Sieberg-Shabbick (“Former Wife”) appeals a final judgment of

dissolution of marriage from Michael Shabbick (“Former Husband”). We

have jurisdiction. Fla. R. App. P. 9.030(b)(1)(A). We affirm in all regards

but reverse the set-off granted by the trial court.

In the final judgment of dissolution of marriage, the trial court

awarded the Former Husband a set-off for the rental value of the marital

home. On appeal, the Former Wife argues the trial court erred by awarding

the set-off, or rental value offset, to the Former Husband because the

Former Husband failed to plead the matter in any pleading or motion. We

agree.

It is well-established that “[i]n the answer a party must state

affirmatively any matter constituting an avoidance or affirmative defense or

any other affirmative defense as allowed by law.” Fla. Fam. L. R. P.

12.110(d). “A party waives all responses and objections that the party does

not present either by motion . . . or, if the party has made no motion, in a

responsive pleading.” Fla. Fam. L. R. P. 12.140(h)(1). “When a defense is

not raised by a motion or pleading, the trial court is without jurisdiction to

consider and decide the issue.” Udell v. Udell, 950 So. 2d 528, 529 (Fla.

4th DCA 2007). “The defense at issue in this case, setoff, is just such an

2 affirmative defense which must be raised in a motion or a pleading in order

to be considered and decided by the trial court.” Id. at 529-30.

Here, rather than pleading set-off in a motion or pleading, the Former

Husband raised the issue for the first time in his pre-trial catalogue.

Because the Former Husband failed to raise the matter as an affirmative

defense or file a motion for such relief, we find the trial court erred by

awarding him the set-off. See Jojo’s Clubhouse, Inc. v. DBR Asset Mgmt.,

Inc., 860 So. 2d 503, 504 (Fla. 4th DCA 2003) (“A motion for set-off is an

affirmative defense.”); Udell, 950 So. 2d at 530 (“[Appellee] failed to plead

setoff, or rental value offset, in his Answer, Affirmative Defenses, and

Counter-Petition, or in any other pleading or motion. As such, the trial court

was without jurisdiction to consider and decide the rental value offset issue.

Consequently, the trial court erred by awarding a rental value offset to

[Appellee].”).

Further, we find the set-off issue was not tried by consent or waiver

as the record reflects the Former Wife promptly objected to the Former

Husband’s argument. See Aburoumi v. Espinosa, 305 So. 3d 825, 826

(Fla. 5th DCA 2020) (“When issues not raised by the pleadings are tried by

express or implied consent of the parties, they shall be treated in all

respects as if they had been raised in the pleadings.” (quoting Fla. R. Civ.

3 P. 1.190(b))); Byers v. Callahan, 848 So. 2d 1180, 1184 (Fla. 2d DCA

2003) (“[I]mplied consent does not exist when the opposing party objects to

the argument or the introduction of evidence.”); LRX, Inc. v. Horizon

Assocs. Joint Venture ex rel. Horizon-ANF, Inc., 842 So. 2d 881, 887 (Fla.

4th DCA 2003) (“An issue is tried by consent when there is no objection to

the introduction of evidence on that issue.”). As the trial court’s set-off

award is in derogation of established Florida law, we reverse. See

Defreitas v. Defreitas, 398 So. 2d 991, 992 (Fla. 4th DCA 1981) (“Florida

law clearly holds that a trial court lacks jurisdiction to hear and determine

matters which are not the subject of appropriate pleadings and notice.”);

Rotta v. Rotta, 34 So. 3d 107, 108 (Fla. 3d DCA 2010) (“A judgment upon a

matter entirely outside of the issues made by the pleadings cannot stand.”

(quoting Dysart v. Hunt, 383 So. 2d 259, 260 (Fla. 3d DCA 1980))).

Affirmed in part; reversed in part and remanded for further

proceedings consistent with this opinion.