In The District Court of Appeal
of The State of Florida, Fourth District
of The State of Florida, Fourth District
CASE NO. 4D12-XXXXL.T. CASE NO. 2011XXXX
[Wife’s Name],
Appellant,
v.
[Husband’s Name],
Appellee.
APPELLANT’S REPLY BRIEF
On Appeal from a Final Judgment of the Circuit Court of the
Fifteenth Judicial Circuit in and for Palm Beach County, Florida
Asshat Rat Lawyer Attorney for Appellee Address Phone Fax |
[Wife’s Name]
Appellant, Pro Se
Address
|
TABLE OF CONTENTS
Page
Table of Citations ……………………………………………………………...…..
Preface ……………………………………………………………………...….….
Argument ...……………………………………………………………………..…
I. The Trial Court Did Err in Denying Wife’s Protective
Order in Regards to her Home and Work Addresses ...………
Order in Regards to her Home and Work Addresses ...………
II. The Trial Court Did Commit Error in
Striking Wife’s Pleadings ...…………………………….....…
Striking Wife’s Pleadings ...…………………………….....…
III. The Trial Court Did Committed Error in
Awarding Sanctions to Husband Which Wife Could
Awarding Sanctions to Husband Which Wife Could
Not Afford to Pay...………………………………...………
IV. The Trial Court Did Commit Reversible Error in
Barring Wife from Participating in the Final
Hearing; in Attributing Funds to Wife which No
Longer Existed; and in Denying Wife’s Motion for
Reconsideration Demonstrating Husband’s Fraud ...……..…
Barring Wife from Participating in the Final
Hearing; in Attributing Funds to Wife which No
Longer Existed; and in Denying Wife’s Motion for
Reconsideration Demonstrating Husband’s Fraud ...……..…
Conclusion ...……………………………………………………………………...
Certificate of Service ...…………………………………………………………...
Certificate of Compliance with Font Requirement ...……………………………..
TABLE OF CITATIONS
Citation Page(s)
CASES
Charneco v. Gayda
72 So. 3d 199, 199 (Fla. 4th DC……………………..……………......................
72 So. 3d 199, 199 (Fla. 4th DC……………………..……………......................
Laughon v. Jacksonville Sheriff’s Office
Dist. Court, M.D. Fla. 2007………………………...…………………………...
Dist. Court, M.D. Fla. 2007………………………...…………………………...
Mettler v. Mettler
569 So. 2d 496 (Fla. 4th DCA 1990) …………………………...……………….
569 So. 2d 496 (Fla. 4th DCA 1990) …………………………...……………….
Rosen v. Rosen
696 So. 2d 697 (Fla. Supreme Ct. 1997) ……………………………………….
696 So. 2d 697 (Fla. Supreme Ct. 1997) ……………………………………….
Diaz v. Diaz
727 So. 2d 954 (Fla. 3d DCA 1999)…………………………………………….
727 So. 2d 954 (Fla. 3d DCA 1999)…………………………………………….
Leo’s Gulf Liquors v. Lakhani
802 So. 2d 337 (Fla. 3d DCA 2001)…………………………………………...
802 So. 2d 337 (Fla. 3d DCA 2001)…………………………………………...
PREFACE
Appellant, [Wife’s Name], may be referred to in this Initial Brief as “Appellant,” “Wife” or “Former Wife.” Appellee, [Husband’s Name], may be referred to as “Appellee,” “Husband” or “Former Husband.”
For purposes of this Reply Brief, the following abbreviations have the following meanings:
R. = Record on Appeal
R. = Record on Appeal
1 R. = Record on Appeal, Volume Number One
2 R. = Record on Appeal, Volume Number Two
2 R. = Record on Appeal, Volume Number Two
Tr. = Transcripts (from Record on Appeal, Volume Number Three)
1 Tr. = May 17, 2012 Transcript
2 Tr. = June 18, 2012 Transcript
3 Tr. = May 29, 2012 Transcript
4 Tr. = May 10, 2012 Transcript
5 Tr. = May 8, 2012 Transcript
2 Tr. = June 18, 2012 Transcript
3 Tr. = May 29, 2012 Transcript
4 Tr. = May 10, 2012 Transcript
5 Tr. = May 8, 2012 Transcript
Wife’s Brief = Appellant’s Amended Initial Brief
Husband’s Brief = Appellee’s Amended Answer Brief
ARGUMENT
Husband’s Brief is permeated with factual misrepresentations, discrepancies and invective towards Wife, designed to disparage her. As such, Husband’s counterstatement fails to comply with the requirements for an accurate, unbiased and supported recitation of the case. Therefore, Wife respectfully requests that this Court rely upon her Statement solely as it is not only accurate, but appropriately annotated consistent with the record.
I. The Trial Court Did Deny Wife’s Motion for Protective Order In Regards to Her Home and Work Addresses
Propriety Of Review
Husband appears to challenge the propriety of reviewing the trial court’s ruling (Husband’s Brief, pg.14) but such review is not prohibited in a plenary appeal. Charneco v. Gayda, 72 So. 3d 199, 199 (Fla. 4th DCA 2011) “Although I find the trial judge's order to be a departure from the essential requirements of law, I see no reason why the harm that will result from the order cannot be corrected on plenary appeal.” Following from that decision, the order in the instant case may also be reviewed during this plenary appeal.
The Order Was Never Stipulated To By Wife’s Counsel
Husband contends that the trial court did not deny the motion and that an Agreed Order was entered (Husband’s Brief, pg. 14). During the hearing, the trial court specifically found: “I’m going to deny the Motion for Protective Order.” (1 Tr. 5, lines 5-9) With Wife’s counsel’s insistence, the trial court asked Husband’s counsel, as a courtesy, if he would be willing to refrain from giving Wife’s address to his client (1 Tr. 6, lines 1-4 ). The trial court refused to protect Wife’s work address, and declared its findings an “agreed order” (1 Tr. 7, line 15). Wife’s counsel did not stipulate to the agreement and further objected in her Motion in Opposing (2 R. 243).
As adduced in her Brief (Wife’s Brief, pg. 24), disclosing Wife’s work address to an abusive Husband is tantamount to disclosing her home address. Wife does not drive and commutes via public transportation, which would allow Husband to easily follow her home. De facto, therefore, the motion was denied.
Geographical Distance Between The Parties
Husband makes note of the fact that Husband and Wife live hundreds of miles away from each other (Husband’s Brief, Pg. 7) as if to persuade that the geographical distance between them should have dissipated Wife’s fear of further abuse by Husband. Hundreds of years ago, when travel was arduous and difficult, Husband may have had a valid point. In modern times, Husband can literally board a plane and be on Wife’s doorstep within a couple of hours.
Certainly, Husband was aware of Wife’s residence while she lived in the marital home in Florida. He lived in the same home with her until he was arrested. Wife relocated ten weeks after his arrest to escape Husband’s further abuse[1] and financial misconduct[2] as detailed in Wife’s Brief (Wife’s Brief, pg. 25).
Domestic Violence
Husband contends that domestic violence was first alleged by Wife subsequent to her relocation (Husband’s Brief, pg. 5). Husband was arrested on March 14, 2011 for aggravated assault with a deadly weapon (2 R. 210-218, Wife’s Brief, pgs. 1-2). During the final hearing, Husband testified (2 Tr. 8, line 2) that Wife relocated during the first week of June, 2011 – which was ten weeks after his arrest for domestic violence.
Husband further contends there is no evidence of domestic violence in the record (Husband’s Brief, pg. 15). In reality, the record is abundant with references to the domestic violence Husband perpetrated against his Wife beginning with Husband’s filing of the related cases (1 R. 5-6) involving the criminal felony charges against him for domestic violence, and the Injunction for Protection Against Domestic Violence. The majority of Wife’s pleadings and one of Husband’s, along with 3 of the 5 hearings[3], refer either to domestic violence or the Injunction[4].
Timing of Filing
Husband speciously protests the timing of Wife’s Motion for Protective order filing (Husband’s Brief, pg. 14). Litigation was initiated by Husband in March 2011 (1 R. 1-4). The parties filed discovery requests upon each other respectively (1 R. 15-28). Neither party made any attempt to enforce discovery until almost a year later. There was no reason for a protective order of her address while Wife lived in the marital home, and since she worked for the family business for many years, there was no reason to protect her employer’s address. After Wife relocated because of Husband’s continuing abusive misconduct in regards to her mail and finances, it became necessary to protect her from any such further actions. Wife began working a temporary position and protection of her employer’s address became necessary (2 R. 208-218). Wife had good cause to seek protection (c.f. Laughon v. Jacksonville Sheriff’s Office, Dist. Court, M.D. Fla. 2007: “Nevertheless, if the party seeking protection can establish good cause for an untimely motion, the Court may grant relief the relief sought.”)
Wife’s Legal Representation During the Case
Husband contends Wife was represented by 5 successive attorneys (Husband’s Brief, pg. 4). In reality, the record demonstrates that Wife was represented by 3 attorneys prior to August 10, 2011 (1 R. 49; 1 R. 50; 1 R. 54). Thereafter, she represented herself pro se for more than 8 of the 16 months this action was pending[5]. Wife retained a 4th attorney[6] on April 16, 2012.
II. The Trial Court Did Commit Error in Striking Wife’s Pleadings
Neither party moved for discovery enforcement until almost a year after litigation commenced. Neither party complied until April 2012 (1 R. 178-189[7]). Subsequent to entry of the order compelling her discovery, Wife complied PRIOR TO the date Husband set for hearing on his Motion for Contempt. Nevertheless, Husband did not cancel the hearing.
Only One Warning About Striking Pleadings
During the hearing on May 10, 2012, the trial court issued its first and ONLY warning to Wife that if she did not supply missing items from discovery, her pleadings would be stricken. On April 19, 2012 (1 R. 136-137), the trial court ordered Husband to comply with discovery. If the trial court was frustrated with Wife as Husband alleges (Husband’s Brief, pg. 22), it should have been equally frustrated with Husband for committing an indistinguishable violation.
The Deposition
In the interim, Wife was ordered to appear at deposition (1 R. 195). Wife did not object because there was nothing in the order indicating Husband would be aware of the location at which she would appear. It was ordered that Wife’s counsel would coordinate the location because Wife had not disclosed her address (1 R. 195). On May 18 – just 4 days before the deposition date – Husband filed a notice showing the exact location and time at which Wife was to appear (2 R. 224-225). His notice was public record and, accordingly, Wife realized that Husband would be aware. This created a potentially hazardous situation for Wife. Nothing in the order (1 R. 195) indicates Husband would appear in West Palm Beach as Husband contends (Husband’s Brief, pg. 19). He could have traveled to the location and harmed his Wife.
As demonstrated in his own Motion to Strike (2 R. 245), and contrary to Husband’s contentions (Husband’s Brief, pg. 19), Wife’s counsel contacted Husband’s counsel at 4:00 p.m. the day BEFORE the deposition to notify him that Wife would not appear and to request a continuance at another location.
No Evidence of Absolute Refusal to Comply
There is no evidence in the record that Wife “absolute[ly]” refused to comply with discovery court orders (Husband’s Brief, pg. 21). In fact, she complied substantially. Nor did Wife receive “numerous warnings” that her pleadings would be stricken as Husband contends (Husband’s Brief, pg. 24). The court only ever warned Wife ONCE and that warning related strictly to items undisclosed (4 Tr. 3-4, lines 25 and 1-2).
Striking the Temporary Relief Motion Would Have Been Extreme
Florida appellate courts have found in cases detailed in Wife’s brief (Wife’s Brief, pgs. 29-30), striking pleadings is extreme and should be reserved for the most extreme cases. If a lesser sanction is available, it should be applied instead. Contrary to Husband’s Brief (Husband’s Brief, pg. 21), the lesser sanction of striking Wife’s Motion for Temporary Relief would also have constituted an extreme sanction, depriving her of representation at trial.
Substantial Compliance
Even a peremptory review of the record reveals Wife’s substantial compliance with discovery. Husband’s Request to Produce asks for 84 different items (1 R. 7-14). Husband’s Interrogatories require answers to 121 different questions (1 R. 16-28). En masse, his discovery requests total 205 items. The Order on Husband’s Motion for Contempt lists 19 of the original 205 items (1 R. 196-199). Husband’s subsequent Motion to Strike lists 8 items that Wife allegedly did not produce (2 R. 226-240); the final 2 of which refer to Wife’s disclosed – but redacted – residential lease and payroll checks.
Husband contends Wife “was not in compliance on any level,” (Husband’s Brief, pg. 22). In fact, by the time the Order on Husband’s Motion for contempt was entered, Wife had complied with 186 of the original discovery requests. At the time her pleadings were stricken, Wife had complied with 11 more. In total, Wife complied with 197 of 205 total discovery requests.
III. The Trial Court Did Commit Error in Awarding Sanctions to the Husband Which Wife Could Not Afford to Pay.
The record is replete with evidence that Wife could not afford to pay sanctions, for example, Wife’s Financial Affidavit (1 R. 63-69). Therefore, the “bite” of financial sanctions was too severe. One need only glance at her Financial Affidavit (1 R. 63-69) to realize that the only way she could afford an attorney would be if she borrowed the funds.
Wife’s Conduct Was Not Found to be Vexatious or Overly Litigious
While Mettler v. Mettler, 569 So. 2d 496 (Fla. 4th DCA 1990) may grant a trial court the right to sanction based on vexatious and overly litigious actions; Husband’s logic regarding Rosen v. Rosen 696 So. 2d 697 (Fla. Supreme Ct. 1997) and Diaz v. Diaz, 727 So. 2d 954 (Fla. 3d DCA 1999) is flawed (Husband’s Brief, pg. 26). In Rosen – the authority in the matter of attorney’s fees – the court ruled that all relevant circumstances are to be considered by the trial court. Moreover, in the instant case, there is no order – prior to the Final Judgment – finding Wife’s conduct as such.
More importantly, until the final hearing, sanctions were never ordered on the Motions to Compel Deposition, for Protective Order, or for Contempt. Husband’s counsel testified at the final default hearing that sanctions should be granted for an entire litany of motions[8] (2 Tr. 15, lines 6-16) because he viewed them as “frivolous”. In actuality, there are only 2 orders in the record for Wife to pay sanctions: the Order Compelling [Wife’s] Discovery (1 R. 23) in the amount of $350, and the Order Granting Husband’s Motion to Strike (2 R. 242) “amount due shall be reserved for the Final Hearing”.
The motion to strike is 3 pages long and the hearing lasted for 4 minutes. The deposition was scheduled for a 3 hour period. Husband’s counsel testified (2 Tr. 15, lines 16-18) that his office spent 15.35 attorney hours and 20.5 paralegal hours. The time Husband’s counsel alleges is unreasonable to begin with. But, more importantly, as previously stated, Husband charged $7,500 of his attorney’s fees to Wife’s account without her consent. Wife attached, as Exhibit I to her Motion for Reconsideration, the relevant bank statements showing these charges (2 R. 286 & 296). Unless the trial court assumed that Wife voluntarily agreed to pay the “Law Firm of Asshat Rat Lawyer” to represent Husband against her, one has to wonder why these charges were not addressed during the final hearing or upon the trial court's review of the Motion for Reconsideration.
Husband charged $7,500 of his legal fees to Wife’s account. He attributed those funds to Wife in his Equitable Distribution table requiring Wife to pay an “equalizing sum” which included those funds. He was awarded attorney’s fees in the amount of $10,155.50. Essentially, this judgment gives Husband the ability to double collect on $7,500 that should have been already attributed to him in his column of the Equitable Distribution table.
IV. The Trial Court DID Commit Error in barring Wife from Participating in the Final Hearing; in Not Considering the Business in Equitable Distribution; and in Denying Wife’s Motion for Reconsideration Demonstrating Husband’s Fraud.
Wife Was Informed She Was Prohibited From Participating In The Final Hearing After Her Pleadings Were Stricken
The record contains Wife’s Motion for Reconsideration, sworn under penalty of perjury declaration, (2 R. 290) that Wife was informed by both her own and Husband’s counsel that she was prohibited from participating in any final hearing.
Knowledge of the Default Hearing Date
The final default hearing occurred on the trial date set before Wife’s pleadings. As laid forth in Wife’s Brief, Husband could have proceeded to a final default hearing at any point after Wife’s pleadings were stricken. Husband’s counsel made no attempt to notify Wife that he would be proceeding on the original trial date. There was no way Wife could have known.
The Reason Wife Did Not Put On Evidence
There is only one reason Wife was unable to put on evidence and that is because she was prohibited from doing so. Husband’s argument that Wife seeks to re-litigate (Husband’s Brief, pg. 28) is akin to stating Wife arrived at the court house only to find the doors locked. Wife’s pleadings were stricken, she was informed that she was prohibited from attending the final hearing; and, as the court stated “So there’s really no other voice here, anyway.” (2 Tr. 4, lines 18-19).
Husband’s Fraud and the Family Business Never Addressed
In his Brief, Husband fails to address that he diverted the family business or that he omitted the business from the Equitable Distribution table – even though the date of valuation of the assets was March 22, 2011 – a date on which the business was still operated by both parties as detailed in Wife’s Brief (Wife’s Brief, pgs. 41-42).
Husband contends that Wife “unilaterally liquidated the parties’ marital funds” on the date she relocated (Husband’s Brief, pg. 5). In his Motion for Return of Status Quo, filed on March 22, 2011 (1 R. 29-30), he alleged Wife had removed funds prior to the date of filing. Wife did not relocate for 10 weeks thereafter. Obviously, Husband is not being truthful on this point. Wife responded to this motion, detailing how the funds were distributed between the parties (1 R. 110-119). Husband fails to address the funds he benefited from.
Husband also fails to address the fraud he committed upon the Court detailed in Wife’s Brief (Wife’s Brief, pg. 45). In Leo’s Gulf Liquors v. Lakhani, 802 So. 2d 337 (Fla. 3d DCA 2001), the appellate court addressed the importance of honesty on the stand. “Lawyers who advise their clients and/or witnesses to mince words, hold back on necessary clarifications, or otherwise obstruct the truth-finding process, do so at their own, and the client’s peril.”
CONCLUSION
Wife seeks only to be free of her abusive Husband. Although Husband was awarded all the marital assets (house, vehicles, business), Wife cannot afford to retain counsel, and therefore, a remand to the trial court would leave her in the same position as before: pro se. Wife respectfully requests that this court reverse the judgment as it pertains to attorney’s fees and the equalizing sum. Such a reversal would allow Wife to live in peace without the threat of her (now Ex) Husband tracking her down allegedly to collect on the judgment, but more than likely, to abuse her further, and perhaps even to murder her.
Respectfully submitted,
__________________________
[Wife’s Name], Appellant
Address
Email
[Wife’s Name], Appellant
Address
CERTIFICATE OF SERVICE
I hereby certify that on December 22, 2012, a digital copy of the foregoing was transmitted to the Court by electronic filing to efiling@flcourts.org and a copy was sent to the Court by overnight mail. I further certify that a true and correct copy was served by placing the same in a U.S. Mail box, postage prepaid, certified mail, to the following party:
Asshat Rat Lawyer
Address
Address
By: _____________________________
[Wife’s Name], Appellant, Pro Se
[Wife’s Name], Appellant, Pro Se
CERTIFICATE OF COMPLIANCE
I hereby certify that the lettering in this brief satisfies and complies with the font requirements of Rule 9.210(a)(2) of the Florida Rules of Appellate Procedure. It was generated in Times New Roman 14 point type.
By: ______________________________
[Wife’s Name], Appellant, Pro Se
[Wife’s Name], Appellant, Pro Se
[1] Turning off water and garbage collection in the marital home which made it impossible for Wife to continue to live therein (Wife’s Brief, pg. 4).
[3] Husband’s Motion for Return of Status Quo (1 R. 29-30); Wife’s Counter Petition (1 R. 34-35); Wife’s Motion to Dispense with Mediation (1 R. 47); Wife’s Financial Affidavit (1 R. 69); Wife’s Response to Motion for Return of Status Quo (1 R. 75-76); Wife’s Motion for Temporary Relief (1 R. 139 & 140); Wife’s Motion for Protective Order (2 R. 208); Wife’s Motion in Opposing (2 R. 243); Wife’s Motion for Reconsideration (2 R. 256).
[4] 1 Tr. 3, lines 20-23; 3 Tr. 4, lines 4-6; 5, 2 Tr. lines 6-8.
[5] Lawyer 1 and Lawyer 2 withdrew on April 26, 2011 and May 3, 2011, respectively. Lawyer 3 represented Wife until August 10, 2010.
[6] Lawyer 4
[7] With the exception that Wife filed a Financial Affidavit on February 22, 2012.
There was a motion to compel wife’s discovery. There was a motion to compel the wife’s deposition. There was a motion for wife’s contempt. There was a motion for protective order. There was wife’s video teleconference deposition no-show. There was a motion to strike the wife’s pleadings.”
2 Tr. 15, lines 6-16
2 Tr. 15, lines 6-16
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