APPEAL: The Appellate Court's Decision

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

July Term 2013

WIFE'S NAME,

Appellant,

v.

HUSBAND'S NAME,

Appellee.

No. XXXX-XXXX

[ July 24, 2013 ]

PER CURIAM.

     XXXXXXX,  the  wife,  appeals  a  final  judgment  of  dissolution  of marriage entered after the trial court struck her pleadings for refusing to comply  with  certain  discovery  orders  and failing  to  attend  a  court-ordered  video  deposition.   We  reverse,  because the trial  court  erred  by striking  the  wife’s  pleadings and  entering  a   final  judgment  without affording  the  wife  an opportunity  to  be  heard  and offer  mitigating  or extenuating evidence.

     XXXXXXX, the husband, was arrested and charged with aggravated assault  for  allegedly threatening  his  wife  with  a wine  bottle.   The  wife obtained  a   Temporary  Injunction  for  Protection  Against  Domestic Violence and later  an Agreed  Permanent  Injunction  Against  Domestic Violence.   Shortly  thereafter,  the  wife  left  Florida  and relocated  to another state.  The husband filed a petition for dissolution of marriage. After filing his petition, he served the wife with the standard family law interrogatories.   She failed to timely  comply  with the  request,  and the trial  court  compelled  her  to  respond  to  the  interrogatories.   The wife requested a protective order allowing her to omit her current home and work  address  from  the  interrogatories.   As  grounds,  she  asserted  that she  feared  further  abuse from  her  husband  if  she  disclosed  this information.   As to the  other  requested  information,  she  indicated  her
willingness to comply.

     The trial  court  denied the  wife’s motion,  but immediately thereafter, counsel  for  the  wife  ore  tenus moved  to  have  the  husband’s counsel barred from providing the husband with the wife’s current home or work address.  Counsel for the husband agreed not to provide his client with the wife’s current home address but argued that his client needed access to  his  wife’s  current  work  address.   The  trial  court  entered  an agreed order  as  to  the  wife’s  current  home  address  but denied  the  ore  tenus request to have her work address omitted.

     When the wife  failed  to  respond  to  the  husband’s standard interrogatories, the trial court held another hearing and warned the wife that her pleadings would be stricken and a default entered against her if she  failed  to  comply  with  the  discovery  request.   The trial  court  also ordered the wife to attend a video deposition scheduled to take place in Washington D.C.  Counsel for the husband would attend the deposition telephonically from his office in West Palm Beach.  The husband would not be attending the deposition.

     Minutes  after  the  trial  court’s  deadline  for  complying  with  its discovery  orders,  counsel  for  the  wife  provided  the  husband  with  a partial  response to his interrogatories.   She  still  refused to provide her current  home  or  work  address.   The wife  also  failed  to  attend  the deposition after learning that her husband could be aware of the location where she would be appearing.

     The  trial  court  held  a hearing  on the husband’s Motion  to Strike Wife’s  Pleadings  Based  on Wife’s  Refusal  to  Comply  with  Order  on Husband’s Motion  for  Contempt,  and  Wife’s  Refusal  to  Attend  Court Ordered  Deposition.   Counsel  for  the  wife  asked the  trial  court  not  to strike  the  wife’s  pleadings  without  first  conducting  an evidentiary hearing.  She argued that her  client “for lack  of a better way to put it, [suffers  from]  extreme  paranoia  she  claims  as  a result  of the  domestic violence she suffered.”  The trial court denied her  request for a hearing and granted the husband’s motion to strike the wife’s pleadings, stating: “The Wife  acted  and  continues  to  act  in  a   deliberate,  willful,  and contumacious  manner,  whereby  she  continues  to  act  in  defiance  and disobedience of numerous orders issued by this court.”  The court struck all of the wife’s pleadings, including her Counter-petition for Dissolution of Marriage,  and ordered the  wife to  pay the  husband’s attorney’s  fees and costs as a sanction.  The court then conducted a trial and entered a judgment of dissolution of marriage.

     The  wife  argues  that  the  trial  court  erred  by striking  her  pleadings without  a   hearing  to  determine  if  her  conduct  warranted  such an extreme  sanction.   We  agree.   Sanctions  imposed  pursuant  to  Florida Rule of Civil Procedure 1.380 are reviewed for an abuse of discretion, and a trial  court may  exercise  its  discretion  by striking  a  party’s  pleadings “where  evidence  shows  deliberate  and contumacious  disregard  of  the court’s  discovery  orders.”  Belle  Glade  Chevrolet-Cadillac  Buick  Pontiac Oldsmobile,  Inc.  v.  Figgie,  54  So.  3d  991, 996  (Fla.  4th DCA  2010) (citations omitted).  However, the striking of pleadings is the severest of penalties and should  only be exercised under “extreme  circumstances.” America’s Yate de Costa Rica v. Armco Mfg., Inc., 82 So. 3d 882, 885-86 (Fla. 4th DCA 2011) (quoting Cook v. Custom Marine Distrib., Inc., 29 So. 3d 462, 462 (Fla. 4th DCA 2010)).  If the trial  court  can impose a less severe sanction as a viable alternative, then it should use the alternative. Id.

     In  any  case, the trial  court  should have  granted the  request  by the wife’s  counsel  to  hold  an evidentiary  hearing  before  striking  the  wife’s pleadings.  See,  e.g., Kuechenberg v. Creative  Interiors, Inc., 424 So. 2d 145, 146  (Fla.  4th DCA  1982) (“The trial  court  erred  by not  affording appellants an opportunity to explain their failure to make discovery even after being ordered to do so.  An evidentiary hearing held after  remand will  correct this  error.”);  accord Wildwood  Props.,  Inc.  v.  Archer  of  Vero Beach,  Inc., 621  So.  2d  691, 692  (Fla.  4th DCA  1993) (“A  party  to  be sanctioned  for  discovery  violations  must  first  be given  notice  and an opportunity to be heard and offer mitigating or extenuating evidence as to why discovery did not take place.”).

     Accordingly,  we  reverse  the  order  striking  the  wife’s  pleadings  and remand for an evidentiary hearing to determine whether the wife’s failure to obey the discovery orders rose to the level of disobedience which would justify the  severe  sanction  of  striking pleadings  or whether  some lesser sanction would suffice.

     Because we are reversing the order striking the pleadings,  we  must  also reverse  the  final  judgment  of  dissolution  of marriage.  See Wildwood, 621 So. 2d at 692.  This moots the remaining issues on appeal.

Reversed and Remanded.

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^[1]  We  note that  Florida  Supreme  Court  Approved  Family  Law  Form  12.980(h) allows a party who has been the victim of domestic violence to file a request for a  confidential  address.  See  In  re  Amendments  to  Florida  Rules  of  Judicial Admin.,  Florida  Rules  of  Civil  Procedure,  Florida  Rules  of  Criminal  Procedure, Florida Probate Rules, Florida Rules of Traffic Court, Florida Small Claims Rules, Florida Rules of Juvenile Procedure, Florida Rules of Appellate Procedure, Florida Family Law Rules of Procedure—E-Mail Service Rule, 102 So. 3d 505, 570 (Fla. 2012).   A  battered  spouse may  omit  certain  details  from  his  or  her  financial affidavit and request that these details be kept confidential by the court.  Id.

TAYLOR, CIKLIN, JJ., and ROBINSON, MICHAEL A., Associate Judge, concur.

*            *            *

     Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach  County;  XXX XXXXX,  Judge;  L.T.  Case  No.
2011XXXXXXXXX.

     Wife, Pro Se.

     Asshat Rat Lawyer, Jupiter, for appellee.

     XXXX,  Attorney  General  of Maryland,  and XXXX,  Assistant  Attorney  General,  Baltimore,  Maryland,  XXXX, Assistant Attorney General, Annapolis Maryland, and XXXX,  Okeechobee,  for  Amicus  Curiae-Office  of the  Secretary  of State, State of Maryland.

Not final until disposition of timely filed motion for rehearing.

AMAZEMENT AT MARYLAND'S AMICUS BRIEF

I cannot even begin to properly express my gratitude to the State of Maryland for filing an exceptional Amicus Brief in support of my case on appeal.  I received a copy of it a few days ago and have been completely floored by the powerful arguments Maryland makes in regards to courts disclosing the residential address of a domestic violence victim who participates in an Address Confidentiality Program (ACP).  If you do not already know the facts of my case, read a summary HERE.

It remains to be seen whether or not the appellate court in Florida will take Maryland's points into consideration.  We are both asking Florida to set a legal precedent which has not been ruled on in any US court before (although the third footnote in a New Jersey Supreme Court Sacharow v. Sacharow certainly alludes to it).  It could equally be stated that we are asking Florida NOT to set a legal precedent that allows courts to order domestic violence victims to disclose their new addresses to their abusers.  Maryland successfully lays out the significant danger that could be caused by such a precedent being set.

One of Maryland's points that I hadn't even considered is one I consider may carry the most weight of all:

"Finally, and most troubling, failure by a Florida court to protect Maryland Address Confidentiality Program participants' locations from disclosure will invite a perverse type of forum shopping.  Abusers from across the country will interpret such an action as an indication that Florida courts are unlikely to conceal the location of any non-Florida domestic violence victim.  Accordingly, those who are dead-set on tracking down their victims may relocate to Florida, establish residence there, and file an action in a Florida court that entails disclosure of their victim's address.  Thus, no matter where domestic violence victims relocate, and no matter whether the state where they relocate has an address confidentiality program, they will not be able to protect themselves from having their whereabouts disclosed, so long as their abusers can avail themselves of Florida courts.  This result must be avoided, both as a matter of public policy and as a matter of public safety."

Maryland makes some other very strong arguments:

1. Maryland plainly informs Florida that if it refuses to cooperate in maintaining the confidentiality of a domestic violence victim's address while participating in their program, Florida will be the FIRST entity who has failed to do so.  That's a very powerful message to Florida.
2. Maryland argues that failing to maintain my address confidentiality will "implicate Florida courts in creating a threat to a[n ACP] Program participant's physical safety."  Maryland clearly tells Florida that my fears for safety were sufficient for a Florida court to enter an Injunction for Protection Against Domestic Violence, which was also sufficient for my enrollment in their ACP.  Maryland states:  "It is not an exaggeration to say that non-enforcement of the Maryland Address Confidentiality Program will put participants' lives at risk, as well."  Pretty strong words -- which are, of course, completely justifiable.
3.  Maryland informs Florida that there are 36 states with ACPs and that if Florida fails to protect my location from disclosure, they will set a legal precedent which will endanger the thousands of participants in ALL of the ACPs throughout the country.
4. Maryland further informs Florida that "[w]ithout confidence in courts to protect their whereabouts, many of these participants may be deterred from seeking needed relief for themselves and justice for their abusers."  In other words, if we cannot protect our location, domestic violence victims may not report crimes.
5. Maryland also discusses comity as one of the "founding principles of American law, enshrined in the Privileges and Immunities Clause of the Constitution."  Comity is a principle designed to ensure that citizens of one state will be on equal footing with those of another state during legal cases.
   
   Maryland tells Florida: "Given that Florida shares Maryland's strong interest in protecting domestic violence victims through address confidentiality, and given that Florida has even enacted its own program to advance that interest, it would plainly violate the norms of comity for Florida to decline to give effect to Maryland's parallel address confidentiality program.  Doing so would deprive the Address Confidentiality Program participant of an advantage of her Maryland citizenship by removing the value of the Program's protection even in Maryland, because her abuser would now be able to track her down there.  Denying comity would also deprive the Program participant of the very same advantage of citizenship she would have enjoyed if she were a Florida citizen, thereby placing her on unequal footing with Florida citizens and effectively discriminating against her on the basis of her state of residence."

In my opinion after reading and re-reading the Brief, Maryland is very clearly telling Florida that its victim (me) relocated to Maryland for her own safety and Maryland is doing all that it can to protect me.  Florida, therefore, has no right to go against Maryland's efforts, and that doing so, will put domestic violence victims in ACPs all over the country (including in its own state) at risk.  Not only that, but Florida may become a laughing stock inviting abusers to move there so they can track down their victims.  

This brief is so powerful and I do not believe Florida can ignore it.  But courts are always reluctant to set precedents.  If they find against me on this point, I suspect Maryland may well have given me grounds to appeal this further; to at least the Florida Supreme Court, and perhaps even the US Supreme Court.  Maryland basically made a federal case out of it.  

Researching and writing the briefs for this appeal has been one of the MOST difficult things I have ever done in my entire life.  There were many times I almost gave up.  Knowing that this case was NOT just about me kept me going.  If my life amounts to nothing else, and even if I lose the rest of the appeal, if I can be a part in ensuring that victims of domestic violence can maintain their locations confidential from their abusers, then my life will have had meaning.  While I have no desire to be a martyr, my fight -- and Maryland's amazing assistance -- may well ensure that many lives are saved.

Thank you Maryland for doing the right thing.

The State of Maryland's Amicus Curiae Brief

IN THE DISTRICT COURT OF APPEAL

OF THE STATE OF FLORIDA, FOURTH DISTRICT

CASE NO. 4D12-XXXX

L.T. CASE NO. 502011XXXXXXXXXXXXNB

[Wife’s Name],

Appellant,

v.

[Husband’s Name],

Appellee

BRIEF OF AMICUS CURIAE OFFICE OF THE SECRETARY OF STATE
FOR THE STATE OF MARYLAND IN SUPPORT OF APPELLANT

Attorney General of Maryland                                                  
Assistant Attorney General                                                     
Other Assistant Attorney General                                              
Counsel to Amicus Curiae Office of the                                   
Secretary of State for the State of Maryland

Florida Attorney
Counsel of Record for Amici
                     

---

TABLE OF CONTENTS

STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE

SUMMARY OF ARGUMENT

ARGUMENT

     I.       COMITY DEMANDS COOPERATION WITH MARYLAND'S STATUTORY
              CONFIDENTIALITY PROTECTIONS FOR DOMESTIC VIOLENCE VICTIMS 

     II.      FLORIDA'S FAILURE TO PROTECT MARYLAND ACP PARTICIPANTS'
              LOCATIONS FROM DISCLOSURE WILL PUT THEIR PHYSICAL SAFETY AT RISK

     III.    FLORIDA'S FAILURE TO PROTECT MARYLAND ACP PARTICIPANTS'
              LOCATIONS FROM DISCLOSURE WILL PUT THE PHYSICAL SAFETY OF
              DOMESTIC VIOLENCE VICTIMS ACROSS THE COUNTRY AT RISK

CONCLUSION

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TABLE OF AUTHORITIES

Cases

1 Bouvier's Law Dictionary
Aetna Casualty & Surety Co. v. Enright,
     258 So. 2d 472 (Fla. Dist. Ct. App. 3d Dist. 1972)
Austin v. New Hampshire,
     420 U.S. 656 (1975)
Dep 't of Children & Families v. V. V.,
     822 So. 2d 555 (Fla. Dist. Ct. App. 5th Dist. 2002)
Flash, Lewis & Co. v. Conn,
     16 Fla. 428 (Fla. 1878)
Hague v. C.I.O.,
     307 U.S. 496 (1939)
Herron v. Passailaigue,
     110 So. 539 (Fla. 1926)
Hicklin v. Orbeck,
     437 U.S. 518 (1978)
In re Certification of Need for Additional Judges,
     889 So. 2d 734 (Fla. 2004)
In re Report of the Comm'n on Family Courts,
     646 So. 2d 178 (Fla. 1994)
Paul v. Virginia,
     15 U.S. 168 (1869)
Reinish v. Clark,
     765 So. 2d 197 (Fla. Dist. Ct. App. 1st Dist. 2000) 
State v. Sheldon,
     332 Md. 45 (Md. 1993)
Stephens v. State,
     659 So. 2d 1303 (Fla. Dist. Ct. App. 1st Dist. 1995) 
Thomas v. Cleveland Mun. Sch. Dist.,
     2006 U.S. Dist. LEXIS 6484 (N.D. Ohio Feb. 21, 2006)
Husband v. Wife, No. 502011XXXXXXXXXXXXNB, Final Judgment
     of Dissolution of Marriage with Property But No Dependent or Minor
     Children (Fla. Cir. Ct., 15th Jud. Cir., Palm Beach County, June 18, 2012)
Husband v. Wife, No. 502011XXXXXXXXXXXXNB, Final Judgment
     of Injunction for Protection against Domestic Violence without Minor
     Children (Fla. Cir. Ct., 15th Jud. Cir., Palm Beach County, Mar. 15, 2011)
Husband v. Wife, No. 502011XXXXXXXXXXXXNB, Motion in Opposing [sic]
     of Motion to Strike (Fla. Cir. Ct., 15th Jud. Cir., Palm Beach County, May 29, 2012)

Statutes

23 Pa. Cons. Stat. Ann. §§ 6701-6713
750 Ill. Comp. Stat. 61/1
Ariz. Rev. Stat. § 11-484 & § 16-153
Ark. Code Ann. § 27-16-811
Cal. Gov't Code §§ 6205-6211
Colo. Rev. Stat. Ann. §§ 24-21-201 - 24-21-214
Conn. Gen. Stat. § 54-240 et seq.
Del. Code Ann. tit. 21, § 305 & tit. 15, § 1303
Fla Stat. § 741.30(3)(b)
Fla. Stat. § 741.401
Fla. Stat. §§ 741.401 - 741.465
Idaho Code Ann. § 19-5701 - 19-5708
Ind. Code § 5-26.5-1-1 et seq.
Kan. Stat. Ann. §§ 75-451 - 75-458
La. Rev. Stat. Ann. §§ 44:51 - 44:52
Mass. Gen. Laws ch. 9A, §§ 1-7
Md. Code Ann., Fam. Law §§ 4-519 - 4-530
Md. Code Ann., Family Law § 4-513
Md. Code Ann., Family Law § 4-522
Md. Code Ann., Family Law § 4-526
Md. Code Ann., Family Law §§ 4-519-4-530
Me. Rev. Stat. Ann. tit. 5, § 90-B
Minn. Stat. §§ 5B.01 - 5B.09
Miss. Code Ann. § 99-47-l
Mo. Ann. Stat. §§ 589.660 - 589.683
Mont. Code Ann. §§ 40-15-115 - 40-15-120
N.C. Gen. Stat. § 15C-1 et seq.
N.H. Rev. Stat. Ann. §§ 7:41 - 7:48
N.J. Stat. Ann. §§ 47:4-1 - 47:4-6
N.M. Stat. § 40-13-11
Neb. Rev. Stat. §§ 42-1201 - 42-1210
Nev. Rev. Stat. § 217.462
Okla Stat. tit. 22, § 60.14
Or. Rev. Stat. §§ 192.820 - 192.868
R.I. Gen. Laws §§ 17-28-1 - 17-28-8
Tenn. Code Ann. § 10-7-504
Tex. Code Crim. Proc. Ann. art. 56.81 - 56.93
Va. Code Ann. § 24.2-418 & § 2.2-515.2
Vt. Stat. Ann. tit. 15, §§ 1150 - 1160
W. Va. Code §§ 48-28A-101 - 48-28A-110
Wash. Rev. Code §§ 40.24.010 - 40.24.090
Wis. Stat. § 6.47

Other Authorities

The National Center for Victims of Crime, State Address Confidentiality Programs (2009), available at: http://www. victimsofcrime.orgldocs/src/state-address-confidentiality-programs.pdf?sfvrsn=0

Rules

Fla. R. Jud. Adm. 2.420(d)(2)

Regulations

COMAR 01.02.11.03E
COMAR 01.02.11.03F
Constitutional Provisions
U.S. Const. art. IV, § 2, cl. 1

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STATEMENT OF IDENTITY AND INTEREST OF AMICUS CURIAE

      Amicus curiae is the Office of the Secretary of State for the State of Maryland. The Office of the Secretary of State administers the Maryland Safe at Home Address Confidentiality Program ("Program"), Md. Code Ann., Family Law §§ 4-519 - 4-530, which since its creation in 2006 has provided victims of domestic violence residing in Maryland a means of keeping their residential address confidential from their abusers.  Victims who qualify to be participants in the Program are provided with a substitute address (a P.O. Box) to use as their legal address for dealings with State and local government agencies.  In addition, the Address Confidentiality Program provides free mail forwarding for first-class mail and legal papers.  Appellant [Wife] has been a Program participant since September 2011.

     The State of Maryland has a strong interest in ensuring the effectiveness of the Address Confidentiality Program, both within the state and across state lines so that participants may be sufficiently protected from the serious physical harm that could result from exposing their residential address to their abusers.  Accordingly, the Office of the Secretary of State works continuously with government agencies, schools, businesses, and courts to keep participants' residential address confidential.  If an agency or court were to require the disclosure of a participant's address, these efforts would be for naught, and lives would be put at substantial risk.

SUMMARY OF ARGUMENT

     With the Maryland Safe at Home Address Confidentiality Program, the State of Maryland has provided a critical tool for victims of domestic violence to use to shield their location from their abusers.  The effectiveness of the shield depends on the cooperation of government agencies, schools, businesses, and courts.  If any one of those entities fails to cooperate and the victim's location is consequently revealed, the entire value of the protection is lost.

     By statute, Maryland state and local agencies must abide by the Address Confidentiality Program upon the request of a Program participant, Md. Code Ann., Family Law § 4-526, but the Program relies on voluntary cooperation from those entities that state law does not reach. These include insurance companies, credit card companies, and utility companies operating both inside and outside Maryland, and courts operating outside Maryland.  If this Court or the court below orders disclosure of the residential address of a Program participant such as [Wife] for any reason, e.g., as part of a discovery request, or to any person, even to opposing counsel alone, it will mark the first time an entity has declined to cooperate with the Program.  It will also mark a major departure from longstanding principles of comity that operate among state courts.

     More importantly, failure by a Florida court to protect the confidentiality of a Program participant's residential address may put that participant's physical safety at risk.  The participant in this case, [Wife], was granted a court-ordered Final Judgment of Injunction for Protection against Domestic Violence without Minor Children as a result of alleged threats of physical violence against her. Husband v. Wife, No. 502011XXXXXXXXXXNB (Fla. Cir. Ct., 15th Jud. Cir., Palm Beach County, Mar. 15, 2011).  These alleged threats, sufficiently serious to convince a Florida court of the need to take immediate protective action, were also sufficiently serious to qualify her for enrollment in the Maryland Address Confidentiality Program after she relocated there.  As the entry of the Injunction for Protection attests, [Wife’s] fear for her physical safety is not unfounded, and she understandably considers her continued safety to be dependent on the confidentiality of her whereabouts. Indeed, the lower court's Final Judgment of Dissolution of Marriage with Property But No Dependent or Minor Children, Husband v. Wife, No. 502011XXXXXXXXXXXXNB (Fla. Cir. Ct., 15th Jud. Cir., Palm Beach County, June 18, 2012), which [Wife] understood to require disclosure of her residential address, caused her to relocate yet again.  Circumstances like these illustrate the importance of cooperating with the Program.  Finally, failure by a Florida court to protect the confidentiality of an ACP participant's residential address will send a signal to participants in Address Confidentiality Programs across the country that these programs are not dependable, that the participants therefore are not safe, and that their abusers need only find a sympathetic ear in another jurisdiction's court if they want to obtain their victim's address and track her down.  As a matter of both public policy and public safety, this Court should not allow such a precedent to be set.

ARGUMENT

I.      COMITY DEMANDS COOPERATION WITH MARYLAND'S STATUTORY CONFIDENTIALITY PROTECTIONS FOR DOMESTIC VIOLENCE VICTIMS.

     Comity among the states is one of the founding principles of American law, enshrined in the Privileges and Immunities Clause of the Constitution. U.S. Const. art. IV, § 2, cl. 1 ("The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States."). As the Florida District Court of Appeals for the First District has written:

The Privileges and Immunities Clause sets out "a norm of comity" or "substantial equality of treatment." . . . See Austin v. New Hampshire, 420 U.S. 656, 660 & 665, 43 L. Ed. 2d 530, 95 S. Ct. 1191 (1975).  The Founding Fathers deemed it critical to unite the citizens of the various states into one union, and "it was undoubtedly the object of the clause in question to place the citizens of each state upon the same footing with citizens of other states, so far as the advantages resulting from citizenship in those states are concerned." Paul v. Virginia, 15 U.S. 168, 180, 19 L. Ed. 357 (1869).

     Reinish v. Clark, 165 So. 2d 197, 207 (Fla. Dist. Ct. App. 1st Dist. 2000); see Hicklin v. Orbeck, 437 U.S. 518, 523-24 (1978).  States maintain comity by enforcing laws passed by other states to ensure the fair and safe treatment of their citizens. Doing so "place[ s] the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned," Paul v. Virginia, 15 U.S. at 180, and also prevents states from discriminating against citizens of other states in favor of their own.  Id.; see Hague v. C.I.O., 307 U.S. 496, 511 (1939).  Generally, a state only disregards comity when applying comity would contradict its own laws or be injurious to its citizens. See Flash, Lewis & Co. v. Conn, 16 Fla. 428, 428 (Fla. 1878) ('"Courts of justice in one State will, out of comity, enforce the laws of another State when by such enforcement they will not violate their laws or inflict an injury on some one of their own citizens.”’) (quoting 1 Bouvier's Law Dic. 244); Aetna Casualty & Surety Co. v. Enright, 258 So. 2d 4 72, 4 75 (Fla. Dist. Ct. App. 3d Dist. 1972).

     Maintaining comity is particularly important in the area of domestic relations. See, e.g., Herron v. Passailaigue, 110 So. 539, 542 (Fla. 1926) (discussing the importance, as a matter of comity, of giving "full force and effect" to decrees of other states involving domestic relations ''unless there is some good and valid reason to the contrary"); Dep 't of Children & Families v. V. V., 822 So. 2d 555, 558 (Fla. Dist. Ct. App. 5th Dist. 2002) (finding that "principles of comity" demanded that a parental termination judgment from another state be recognized when "[n]o paramount rule of public policy dictates otherwise").  Accordingly, state laws and regulations pertaining to domestic relations, such as the statutorily-created confidentiality program at issue here, should be followed in other states, absent special circumstances.  Cf. Thomas v. Cleveland Mun. Sch. Dist., 2006 U.S. Dist. LEXIS 6484, *13 (N.D. Ohio Feb. 21, 2006) ("Considerations of comity require the court to consider the confidentiality interests outlined under state law'').

     As explained above, Maryland provides domestic violence victims address confidentiality protection by statute, through the Maryland Safe at Home Address Confidentiality Program. Md. Code Ann., Family Law§§ 4-519-4-530. This protection is given only to those who provide credible, independently evaluated evidence of actual or threatened physical violence.  Id § 4-522 (Program applicants must provide some evidence that they or a person under their care are a victim of domestic violence and a statement that disclosure of their actual address would endanger their safety of the safety of their child); COMAR 01.02.11.03F; see § 4-513 (defining “victim of domestic violence"). Through administering the Address Confidentiality Program, Maryland furthers its compelling interest in protecting the health and safety of its citizens.  See State v. Sheldon, 332 Md. 45, 63 (Md. 1993) ("To be sure, the State has a compelling interest in protecting the social welfare of all its citizens.").

     Florida also provides domestic violence victims address confidentiality protection by statute, through a similar address confidentiality program. Fla. Stat. §§ 741.401-741.465.  It also provides these victims express statutory protection when filing a petition for injunction for protection against domestic violence.  Fla Stat. § 741.30(3)(b) (a petitioner "may furnish [her] address to the court in a separate confidential filing if, for safety reasons, the petitioner requires the location of the current residence to be confidential"); see Fla. R. Jud Adm. 2.420( d)(2).  In creating these statutory protections, the State of Florida has recognized the importance of protecting the health and safety of domestic violence victims within its borders. See Fla. Stat. § 741.401 (legislative findings about the need to protect from disclosure the locations of "persons attempting to escape from actual or threatened domestic violence" through relocation); see also In re Report of the Comm'n on Family Courts, 646 So. 2d 178, 182 (Fla. 1994) (“we recognize the extreme importance of having domestic violence issues addressed in an expeditious, efficient, and deliberative manner").

     Given that Florida shares Maryland's strong interest in protecting domestic violence victims through address confidentiality, and given that Florida has even enacted its own program to advance that interest, it would plainly violate the norms of comity for Florida to decline to give effect to Maryland's parallel address confidentiality program.  Doing so would deprive the Address Confidentiality Program participant of an advantage of her Maryland citizenship by removing the value of the Program's protection even in Maryland, because her abuser would now be able to track her down there.  Denying comity would also deprive the Program participant of the very same advantage of citizenship she would have enjoyed if she were a Florida citizen, thereby placing her on unequal footing with Florida citizens and effectively discriminating against her on the basis of her state of residence. See Paul v. Virginia, 15 U.S. at 180.  Surely no justification for this departure from comity can be identified here.

II.      FLORIDA'S FAILURE TO PROTECT MARYLAND ACP PARTICIPANTS' LOCATIONS FROM DISCLOSURE WILL PUT THEIR PHYSICAL SAFETY AT RISK.

     Failure by a Florida court to enforce Maryland's Address Confidentiality Program will not only threaten comity; it will implicate Florida courts in creating a threat to a Program participant's physical safety. Program participants are enrolled only after they provide credible evidence of actual or threatened physical violence.  See Md. Code Ann., Family Law § 4-513 ("'victim of domestic violence' means an individual who has received deliberate, severe, and demonstrable physical injury, or is in fear of imminent deliberate, severe, and demonstrable physical injury from a current or former spouse, or a current or former cohabitant").  For too many Program participants, their abusers have struck before and are determined to strike again.  Address confidentiality is therefore one of the only meaningful tools they have to break free from patterns of abuse and seek safe shelter.

     From the point of view of Maryland's domestic violence victims, this protection is critical to their continued physical safety.  Nearly 1,000 individuals - including hundreds of children - have sought the protection of Maryland's Address Confidentiality Program since its inception in October 2006, with hundreds enrolling every year.  The value of address confidentiality protection to those who participate is demonstrated by their high re-enrollment rate:  The Maryland Address Confidentiality Program operates on four-year terms, and on average at least fifty percent of Program participants re-enroll after their initial term has expired.  Non-enforcement of the Maryland Program by courts in other states would put the physical safety of hundreds of men, women, and children at risk, and compel many of them to relocate, often at great personal cost.

     It is not an exaggeration to say that non-enforcement of the Maryland Address Confidentiality Program will put participants' lives at risk, as well.  Many Program participants bear the bruises and scars of attempts on their lives, and, all too frequently, their abusers are willing and able to make those attempts eventually succeed.  [Wife]'s enrollment in the Program came after an alleged attempt on her life by her former husband, an act she claims was the latest in a series of physically abusive actions spanning several years.  This pattern of alleged abuse, when brought to the attention of Florida courts, warranted the issuance of an Injunction of Protection against Domestic Violence without Minor Children and eventually a Final Judgment of Protection.  Stories like hers are all too common among the Maryland Address Confidentiality Program participants.  Without a dependable, court supported means of protecting their locations from disclosure, these participants cannot be assured of their safety. Surely, Florida courts wish to avoid this outcome, particularly for a former Florida resident like [Wife]. See In re Certification of Need for Additional Judges, 889 So. 2d 734, 738 (Fla 2004) (discussing the value of "the court system to help ensure [domestic violence victims'] safety"); Stephens v. State, 659 So. 2d 1303, 1304 (Fla. Dist. Ct. App. 1st Dist. 1995) ("The hidden epidemic of domestic violence is a serious public safety and criminal justice problem which requires the courts to use a full range of available resources and tools.") (internal quotation and citation omitted).

III.      FLORIDA'S FAILURE TO PROTECT MARYLAND ACP PARTICIPANTS' LOCATIONS FROM DISCLOSURE WILL PUT THE PHYSICAL SAFETY OF DOMESTIC VIOLENCE VICTIMS ACROSS THE COUNTRY AT RISK.

     Finally, failure by a Florida court to enforce Maryland's Address Confidentiality Program will also threaten the physical safety of domestic violence victims all over the country, not just those in Maryland.  In addition to Florida, thirty-six states have enacted address confidentiality programs of some form, with thousands of enrollees, and the effectiveness of all of these programs depends on their enforcement in other jurisdictions.  If Florida declines to protect the confidentiality of a Maryland victim's address, it will send a signal to address confidentiality program participants in all thirty-six states that their addresses are not truly safe from disclosure, and that, therefore, they are not truly safe. Worse, this signal will be sent by the judiciary, the very institution that many of these participants may be relying on to obtain divorces from their abusers, child custody, and other legal remedies.  Without confidence in courts to protect their whereabouts, many of these participants may be deterred from seeking needed relief for themselves and justice for their abusers.

     For Floridian domestic violence victims desperate to relocate to safety in a place far from their abusers, non-enforcement of another state's address confidentiality program may suggest the need for them to stay put in Florida if they want address confidentiality protection, no matter the other safety risks involved. Interstate relocation by domestic violence victims is currently quite common, with [Wife] being just one example. The Maryland Address Confidentiality Program alone has dozens of participants who enrolled after relocating to Maryland from another state, and dozens more who have relocated to states outside Maryland while still remaining enrolled in Maryland's Program. Non-enforcement of a state's address confidentiality program in another state will discourage program participants from crossing state lines to escape their abusers, thereby further limiting victims' ability to pursue alternatives to enhance their security.

     Finally, and most troubling, failure by a Florida court to protect Maryland Address Confidentiality Program participants' locations from disclosure will invite a perverse type of forum shopping.  Abusers from across the country will interpret such an action as an indication that Florida courts are unlikely to conceal the location of any non-Florida domestic violence victim.  Accordingly, those who are dead-set on tracking down their victims may relocate to Florida, establish residence there, and file an action in a Florida court that entails disclosure of their victim's address.  Thus, no matter where domestic violence victims relocate, and no matter whether the state where they relocate has an address confidentiality program, they will not be able to protect themselves from having their whereabouts disclosed, so long as their abusers can avail themselves of Florida courts.  This result must be avoided, both as a matter of public policy and as a matter of public safety.

CONCLUSION

     For the reasons stated, the Office of the Secretary of State for the State of Maryland urges this Court to honor Maryland's Address Confidentiality Program by preventing the court-ordered disclosure of [Wife]’s residential address.  Protecting the confidentiality of her address throughout these proceedings will best ensure her physical safety, the safety of Florida domestic violence victims who may need to relocate out of state, and the safety of domestic violence victims already under the protection of other states' address confidentiality programs.

                                                                           Respectfully submitted,

                                                                           Florida Attorney

                                                                           Assistant Attorney General
                                                                           Other Assistant Attorney General
                                                                           Counsel to the Office of the Secretary of State
                                                                           for the State of Maryland

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^[1]  See Husband v. Wife, No. 502011XXXXXXXXXXXXNB, Motion in Opposing [sic] of Motion to Strike (Fla. Cir. Ct., 15th Jud. Cir., Palm Beach County, May 29, 2012) ([Wife] describing her understanding that compliance with discovery requests would require her to disclose her location, endangering her safety).

^[2]  It bears emphasis that all Program participants must meet the financial burden of relocation as a condition of initial enrollment in the Program.  COMAR 01.02.11.03E ("To be designated as a participant in the Program, the individual shall ... [h]ave recently relocated or intend to relocate within 30 days from the date of application to an address unknown to the abuser").  The need to relocate again because an address is divulged would create additional economic strain on what are usually already-strained finances.

     As mentioned above, see supra n.l, the lower court's rulings regarding compliance with discovery requests, which [Wife] understood as requiring disclosure of her residential address, caused her to relocate at her own expense for fear of her continued safety and the inability of the Address Confidentiality Program to protect the confidentiality of her whereabouts under the circumstances. Husband v. Wife, Motion in Opposing [sic] of Motion to Strike, No. 502011XXXXXXXXXXXXNB (Fla. Cir. Ct., 15th Jud. Cir., Palm Beach County, May 29, 2012), at para 5.

^[3]  Ariz. Rev. Stat. § 11-484 & § 16-153; Ark. Code Ann. § 27-16-811, Cal. Gov't Code §§ 6205-6211; Colo. Rev. Stat. Ann. §§ 24-21-201-24-21- 214; Conn. Gen. Stat. § 54-240 et seq.; Del. Code Ann. tit. 21, § 305 & tit. 15, § 1303; Fla. Stat. §§ 741.401-741.465; Idaho Code Ann. § 19-5701-, 19-5708; 750 Ill. Comp. Stat. 6111; Ind. Code § 5-26.5-1-1 et seq.; Kan. Stat.  Ann. §§ 75-451-75-458; La. Rev. Stat. Ann. §§ 44:51-44:52; Me. Rev. Stat. Ann. tit. 5, § 90-B; Md. Code Ann., Fam. Law §§ 4-519-4-530; Mass. Gen. Laws ch. 9A, §§ 1-7; Minn. Stat. §§ 5B.01-5B.09; Miss. Code Ann. §  99-47-1; Mo. Ann. Stat. §§ 589.660-589.683; Mont. Code Ann. §§ 40-15-115--40-15-120; Neb. Rev. Stat. §§ 42-1201-42-1210; Nev. Rev. Stat. § 217.462; N.H. Rev. Stat. Ann. §§ 7:41-7:48; N.J. Stat. Ann. §§ 47:4-1- 47:4-6; N.M. Stat. § 40-13-11; N.C. Gen. Stat. § 15C-1 et seq.; Okla. Stat. tit. 22, § 60.14; Or. Rev. Stat. §§ 192.820-192.868; 23 Pa. Cons. Stat. Ann. §§ 6701-6713; R.I. Gen. Laws§§ 17-28-1-17-28-8; Tenn. Code Ann. § 10-7-504; Tex. Code Crim. Proc. Ann. art. 56.81-56.93; Vt. Stat. Ann. tit. 15, §§ 1150-1160; Va. Code Ann. § 24.2-418 & § 2.2-515.2; Wash. Rev. Code §§ 40.24.010-40.24.090; W. Va. Code §§ 48-28A-101-48-28A-110; Wis. Stat. § 6.47.  

^[4]  See The National Center for Victims of Crime, State AddressConfidentiality Programs (2009), available at: http://www. victimsofcrime.orgldocs/src/state-address-confidentiality-programs.pdf?sfvrsn=0.

GUIDE TO THE APPEAL POSTS

In Florida, an appeal is comprised basically of "the record" and briefs filed by each party. The record is all documents that were filed with the trial court (i.e., motions, notices, evidence, etc.) and transcripts of all hearings (at least, those that were recorded/transcribed).  Oral argument in front of the judges may be requested, and the appellate court may allow it.  (I did not request oral argument because I would place my life in jeopardy if I traveled to Florida and my ex-husband knew where I would be at a given time.)

The person who files the appeal is called the "Appellant."  The other party is called the "Appellee." The Appellant has the right to file an Initial Brief of 50 pages or less.  The Brief must reference the record, not contain anything that is not in the record, and it must consist of specific sections.  The Appellee also has the right to file an Answer Brief of 50 pages or less, which contains the same sections (but the Appellee generally creates a Counterstatement to Appellant's Statement).  Finally, the Appellant has the right, if desired, to have the last word in a Reply Brief.  It can not be longer than 15 pages, and can only rebut points made by Appellee in its Answer Brief.  It can not introduce any new points.

An Amicus Curiae (Latin for "friend of the court") is someone who is not a party to a case but offers information that bears on the case and which may assist the court in making its rulings. This usually takes the form of an Amicus Brief, which introduces concerns regarding the legal effects of the court's decision, and how it may affect other parties -- not just the parties to the case.   In my case, the Secretary of State of Maryland, through the Maryland Attorney General, has become involved as Amicus Curiae and filed an Amicus Brief.

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For a quick summary of the case and its importance, read:  Brief Summary of the Case
To learn why it's a landmark case, read: A landmark case that will set a legal precedent

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THE APPELLATE BRIEFS

My Initial Brief (in full)  (coming soon)
His Answer Brief (in full)
My Reply Brief (in full)
Maryland's Amicus Brief (in full)

Grouped By Sections:
To make the briefs easier to read, I've divided up the sections of the briefs and grouped them together as individual posts for each section of the three briefs.  First, there's a section from my Initial Brief, followed by that section from his Answer Brief, and, finally, that section from my Reply Brief.  Instead of separating each of the Initial Brief's and Answer Brief's Summary of the Arguments sections, I've added them into each Issue section with a subheading of "Summary".

In addition, I've added Maryland's Amicus Brief which is summarized HERE.  And, my thoughts on his Reply Brief are HERE.

STATEMENT OF THE CASE AND FACTS

My Statement of the Case and Facts from my Initial Brief.
His Counterstatement of the Case and Facts from his Answer Brief.
My Reply Brief's mention of his Counterstatement from my Reply Brief.

THE ISSUES:  My appeal consists of four issues:

I.  DENIAL OF MY MOTION FOR PROTECTIVE ORDER (seeking protection of my home address, employer name and address and name of domestic violence agency)

My First Issue from my Initial Brief.
His Answer on this Issue from his Answer Brief.
My Reply on this Issue from my Reply Brief.
Maryland's points supporting this issue.


II.  STRIKING MY PLEADINGS

My Second Issue from my Initial Brief.
His Answer on this Issue from his Answer Brief.
My Reply on this Issue from my Reply Brief.


III.  AWARDING SANCTIONS (attorney's fees and costs) I COULD NOT AFFORD TO PAY

My Third Issue from my Initial Brief.
His Answer on this Issue from his Answer Brief.
My Reply on this Issue from my Reply Brief.


IV.  LACK OF EQUITABLE DISTRIBUTION AND HIS FRAUD ON THE COURT

My Fourth Issue from my Initial Brief.
His Answer on this Issue from his Answer Brief.
My Reply on this Issue from my Reply Brief.

CONCLUSIONS

Conclusions:  All in one post -- my conclusion from my Initial Brief, his from his Answer Brief, and my second conclusion from my Reply Brief.

NOTE:  In the briefs, the record is referenced as 1 R. [page no.] or 2 R. [page no.] and the transcripts of hearings are referenced as 1 Tr. [page no.], etc., etc.  (There are only 5 transcripts that were recorded in my case.)

(50 or 15 pages may sound like a lot.  But the briefs must be in 14 pt font size, double-spaced, and with 1 inch margins all around (left, right, top, center).  In a normal font, single-spaced, they are much much shorter!)

MARYLAND'S AMICUS BRIEF

Maryland's Brief in support of my First Argument.

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The State of Maryland's Involvement

I was accepted to and participate in Maryland's Address Confidentiality Program.  Read about their efforts to help in this appeal HERE, and read their letter to the Appellate Court HERE.  Maryland has now been granted leave to file as an Amicus Curiae (friend of the court) and has filed an Amicus Brief which can be read HERE.

APPEAL: THE CONCLUSIONS - MINE, HIS, AND MINE AGAIN

Excerpted from my Initial Brief, his Answer Brief, and my Reply Brief, these are the Conclusions.  I've grouped them all together rather than creating three separate pages.  

MY CONCLUSION (from my Initial Brief)

For all of the above-mentioned reasons, Appellant contends that the trial court’s June 18, 2012 Final Judgment should be reversed and remanded for further proceedings, and assigned to a different judge who understands domestic violence and its ramifications.

However, Wife’s primary interest lies in maintain her physical safety. Her greatest desire is to be able to live her life in peace, free from further abuse by her now ex-husband. The Final Judgment provides Husband the legal right to track her down, locate her, and collect upon the Judgment, garnishing her wages and bank accounts, as his counsel threatens. If Husband were to discover the name and address of Wife’s employer and her current home address, Wife’s greatest fear is that Husband may murder her. Therefore, Appellant merely requests relief as to the attorney’s fees and the equitable distribution equalizing sum and that the judgment concerning these amounts be overturned as soon as possible.

HIS CONCLUSION (from his Answer Brief)

The Husband respectfully submits that this Court should affirm the trial Court’s Order and Final Judgment. In so far as the Appellant has requested that the case be “assigned to a different judge who understands domestic violence and its ramifications,” appellee would strenuously object as there is nothing in the record to indicate the presiding judge does not understand domestic violence or its ramifications, nor is this relevant in this particular case.

MY REPLY BRIEF CONCLUSION (from my Reply Brief)

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.

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My commentary on the above:

I think it should be interesting to anyone reading that all I'm asking for is to have the monetary judgment against me overturned.  I'm entitled to my share of the marital assets, at least (and more, since I bought them all).  I really should be entitled to some kind of alimony (bridge the gap or rehabilitative).  But I'm not asking for any of that.  The only thing I want is to be free of this man and the terror he has brought to my life.  Everything else is only money and stuff.  He'd never give it back anyway.  I've made a new life, against all odds, and I'd just like the freedom to live it.  I don't have much, but I'm not being abused anymore and I like it.  I'll never stop looking over my shoulder and even if I win this appeal, it may not stop him coming after me in some other way.  But, at least, if the monetary judgement is overturned, he won't have a legal way to track me down and find me.  

The shocking part of all of this is that this man -- a convicted felon who served time in the federal penitentiary for defrauding investors, a man who filed for bankruptcy in 2004, a man who's now been divorced either 3 or 4 times, basically, a complete loser who came to the marriage with nothing -- walked away with a beautiful house in Florida, a profitable business, a valuable Corvette and two other vehicles, ALL of which were bought by me.  A large chunk of his legal fees were withdrawn from my account, and he charged several months of business expenses to my account, while profiting from all the income during that period.  He lived rent-free with a mistress.  Talk about a free ride!  One would think he would have said "enough" and walked away with all the marital assets without going for more once he had my pleadings stricken.  Wasn't that enough, after all?  But an abusive man is NOT even remotely reasonable.  I have no money and he knows that.  He took everything I ever had.  Being awarded this judgment and pursuing me to collect on it will not be profitable for him.  It will probably cost him more in legal fees than he would EVER collect.

There's only one reason he wants to pursue this judgment, and it's to find me and harm/harass me further, and probably kill me.  And that's what abusers do.  

APPEAL: THE ISSUES: 4th ISSUE - MY REPLY TO HIS ANSWER

Excerpted from my Reply Brief, this is my final counter to his Answer on the Fourth Issue of my appeal.

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 were stricken. 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 or participating in the final hearing; and, as the trial 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 of the dissolution. Wife did not relocate for 10 weeks after the dissolution petition was filed. Obviously, Husband is not being truthful on this point. Wife responded to that 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.”

APPEAL: THE ISSUES: 4th ISSUE - HIS ANSWER

Excerpted from his Answer Brief, this is his counter to my fourth issue.  Interesting enough, his Summary (contained in a section called Summary of the Arguments -- required under the Florida Appellate Rules of Procedure) is almost identical to his actual argument.  He has one more sentence in the first paragraph of the summary (last sentence) than he has included in his argument.  So much for one being a summary!  Also, he changes the word "should" (in his summary) to "could" in his argument (last paragraph of each).

He must have thought he did such a fabulous job that he didn't have to rewrite it.  And yes, he's a lawyer, and I'm not.  (Pardon me mocking him, but he truly is a joke of a lawyer.  However, if I had to recommend a divorce lawyer in that part of Florida, I'd recommend him because he's ruthless!)

Once again, he includes attacks about "objectionable" and "bizarre" allegations.

As usual, I counter in my Reply Brief here.


IV.  The Trial Court Did Not Commit Error in regards to the Former Wife’s Objectionable and bizarre allegations that Former Wife was barred from participating from the Final Hearing; in attributing funds that no longer existed, and in denying Wife’s Motion for Reconsideration.

Summary

There is nothing in the record to indicate in the record that the Trial Court ever barred the Former Wife from participating in the Final Hearing. The Former Wife contradicts herself in her own Amended Initial Brief. On one hand she states “After Wife’s pleadings were stricken, she was defaulted. However, Wife was never served with any notice of the final hearing. The hearing occurred on the original trial date, set before her pleadings were stricken (emphasis added), but could have been set by Husband any time.” The Former Wife admits that she had knowledge of the original trial date in her own Initial Brief.

Even in the Former Wife’s Motion for Reconsideration of Final Judgment, she makes absolutely no claim that she did not receive proper notice. 2 R. 256-313. In fact, in her motion, she claims that Husband’s counsel informed her that “she was thereby prohibited from participating in any further proceedings”, a claim which is completely false and not supported by the record.

The Former Wife simply seeks to re-litigate issues in her Amended Initial Brief that should have been addressed at the Lower Tribunal in the proper course of litigation. The Former Wife simply cannot re-litigate her case in the guise of an Initial Amended Brief in the course of an appeal.

Argument

There is nothing in the record to substantiate that the Trial Court ever barred the Former Wife from participating in the Final Hearing. The Former Wife contradicts herself in her own Amended Initial Brief. On one hand she states “After Wife’s pleadings were stricken, she was defaulted. However, Wife was never served with any notice of the final hearing. The hearing occurred on the original trial date, set before her pleadings were stricken (emphasis added), but could have been set by Husband any time.”

Even in the Former Wife’s Motion for Reconsideration of Final Judgment, the Wife makes absolutely no claim she did not receive proper notice. 2 R. 256-313. In fact, in her motion, she claims that Husband’s counsel informed her that “she was thereby prohibited from participating in any further proceedings”, a claim which is completely false and unsubstantiated. It is clear that the Former Wife was never barred from attending the Final Hearing, and will do and say whatever she feels is necessary at any particular time, in an attempt to re-litigate her case. The Lower Tribunal has the discretion to deny Wife’s Motion for Reconsideration.

The Former Wife simply seeks to re-litigate issues in her Amended Initial Brief that could have been addressed at the Lower Tribunal in the proper course of litigation. The Former Wife simply cannot re-litigate her case in the guise of an Initial Amended Brief in the course of an appeal.

APPEAL: THE ISSUES: 4th ISSUE - LACK OF EQUITABLE DISTRIBUTION AND FRAUD

Excerpted from my Initial Brief, this is the fourth and final issue I raise.  He answered this issue here, and I countered his answer here.

IV. The trial court committed reversible error in barring Wife from participating in the final hearing; in not considering the family business in equitable distribution, and in denying Wife’s Motion for Reconsideration demonstrating Husband’s fraud. 

Summary

Wife was denied her due process right to be heard as a defaulted party at the final hearing. The equitable distribution table did not include any of the funds Husband withdrew and charged to the business account. Those funds were attributable to him. It also did not include the most valuable asset of all – the family business, [Name of Family Business] – which Husband had diverted for his own benefit in the early weeks after his arrest. Husband not only committed fraud in not including the aforementioned funds and business, but also perjured himself on the stand claiming that Wife withdrew the funds from a joint account, that she was still in possession of the funds, and that the distribution of assets gave each party an equal share of the assets. The trial court was aware of the family business from the onset of proceedings, but never inquired as to why it was not included in the distribution of assets. This was clearly an abuse of discretion.

Argument

1. Wife had a right to be heard at the final hearing 

It is well settled in Florida case law that a defaulted party has a due process entitlement to notice and an opportunity to be heard as to the presentation and evaluation of evidence necessary to a judicial determination of the amount of unliquidated damages. Pierce v. Anglin, 721 So.2d 781 (Fla. 1st DCA 1998). A party must be afforded an opportunity to defend.  Wife was provided no such opportunity.  Pursuant to Rules 1.500(e) and 1.440 of the Florida Rules of Civil Procedure, if claims are “unliquidated,” a trial is required with at least thirty days’ notice to the defaulted party, at which time the party must prove his/her specific claims.

After Wife’s pleadings were stricken, she was defaulted. However, Wife was never served with any notice of the final default hearing. The hearing occurred on the original trial date – which had been set before her pleadings were stricken – but could have been set by Husband at any time after Wife's pleadings were stricken. Wife was not aware the default hearing would proceed on the date set before her pleadings had been stricken. In fact, she received no notice of any date on which the default hearing would occur. Both her attorney and Husband's attorney informed Wife that she was prohibited from attending.  During the hearing, the trial court stated “So there’s really no other voice here, anyway.” (2 Tr. 4, lines 18-19) and did not even inquire as to whether Wife had been noticed about the hearing occurring. The trial court should not have proceeded without ensuring that Wife had received notice.

2. The Valuation Date, the Business

The family business, [Name of Family Business], was discussed during hearings, for example, the motion for contempt hearing (4 Tr. 4, lines 16-19) and business checking statements were hotly contested during discovery pleadings. Husband testified that the parties separated on March 13, 2011 (2 Tr. 7, line 21)^[1]. The valuation date of the assets was March 22, 2011, barely nine days after they separated. Husband did not establish his own business until March 29, 2011 (1 R. 38-39 & 139). Therefore, the business, [Name of Family Business], should have been included in the distribution of assets.

The trial court erred in not inquiring about the business or asking if there were any other assets of the marriage, and erred in denying Former Wife’s Motion for Reconsideration ((2 R. 256-313) which clearly demonstrated that the business was omitted from Husband’s schedule of assets, and, as such, fraud had been committed during the final hearing (2 R. 256-313).

3. Funds Wife withdrew were no longer in existence

Wife’s financial affidavit dated February 22, 2012 (1 R. 63-69), demonstrated that the funds withdrawn from her personal business checking account no longer existed and had been used, both by Husband, without her consent, or for Wife’s reasonable living and relocation expenses.

Dissolution was pending for sixteen months prior to the final hearing, and Wife was unemployed and without income from April through November of 2011, and again, from January through February of 2012. Additionally, Wife had incurred additional expenses in relocating to the state of Maryland after Husband shut off water in her home, making it impossible for her to continue living therein.

Husband filed a Motion for Return of Status Quo of Marital Funds on March 22, 2011 (1 R. 29-30), regarding Wife’s withdrawal of the funds the trial court attributed to her. Wife responded, stating:

“At no time during the parties’ ten (10) year marriage did the parties have a joint business checking account. The account from which Wife removed funds was an account established by Wife in 1999, prior to the marriage, under the name “[Name of Wife's Business].” (1 R. 76)

As demonstrated in Wife's Motion for Reconsideration, Husband withdrew from and charged to Wife’s personal business checking account in substantial amounts without her consent, between the date of his arrest on March 14, 2011 and May 6, 2011, the date on which Wife closed the account. On three separate occasions, Husband charged his legal fees to the "Law Office of [Asshat Rat Lawyer]" to Wife’s personal business checking account in the total amount of $7,500 (1 R. 140 & 2 R. 258). Husband charged substantial business expenses to Wife’s personal business checking account (1 R. 140) after he had diverted the marital business for his own benefit (1 R. 38-43 & 139). Husband instructed the customers of the marital business “[Name of Family Business]” to pay his new business “[Husband's New Business]” and to place stop payments on checks issued to “[Name of Family Business]” and to place charge backs on payments made by credit card.

Florida appellate court decisions are clear that marital assets depleted to pay for reasonable living expenses, absent a finding of misconduct or intentional dissipation, cannot be attributed to Wife in the schedule of equitable distribution of assets. Tillman v. Altunay, 44 So.3d 1201, 1203 (Fla. 4th DCA 2010); Sheehan v. Sheehan, 943 So. 2d 818, 822 (Fla. 4th DCA 2006); Roth v. Roth, 973 So.2d 580, 585 (Fla. 2nd DCA 2008); Segall v. Segall, 708 So.2d 983, 986 (Fla. 4th DCA 1998).

Indeed, Husband’s misconduct in diverting income from the family business “[Name of Family Business]” to his new similarly named business “[Husband's New Business]” should have been considered by the trial court, and would have been raised by Wife, if her pleadings had not been stricken and/or she had been allowed to participate in the final hearing. Husband’s withdrawals should also have been considered and attributed to him.

4. Husband committed fraud 

The trial court should have granted Wife’s motion for reconsideration (2 R. 256-313), and, in light of Husband’s fraud which permeated the entire proceeding of the final hearing and resulted in Wife being ordered to pay even more of Husband’s attorney’s fees than she had already paid, and an “equalizing” sum which granted Husband all the assets plus more, the trial court should actually have stricken his pleadings. Cox v. Burke, 706 So.2d 43 (Fla. 5th DCA 1998); Kornblum v. Schneider, 609 So. 2d 138 (Fla. 4th 1992); Desimone v. Old Dominion Insurance Co., 740 So. 2d 1233 (Fla. 4th 1999); Savino v. Florida Drive In Theatre Management, Inc., 697 So. 2d 1011 (Fla. 4th 1995)

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^[1] The parties actually separated on March 14, 2011, the date of Husband’s arrest for domestic violence against his Wife, wherein he was charged with aggravated assault with a deadly weapon.

APPEAL: THE ISSUES: 3rd ISSUE: MY REPLY TO HIS ANSWER

Excerpted from my Reply Brief, this is my final counter to his Answer in regards to the Third Issue.

NOTE:  His lawyer's name has been replaced with the title I prefer to call him "Asshat Rat Lawyer".

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 for an entire litany of motions^[1] (2 Tr. 15, lines 6-16) should be granted 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”. Husband was ordered to pay sanctions to Wife in the amount of $350 in the Order Compelling [Husband’s] Discovery (1 R. 142).

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 ^[1](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 in this Reply Brief, 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.

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^[1] Testimony of Asshat Rat Lawyer: “These are the fees and costs that, in our perspective, were due to frivolous litigation, vexatious litigation, litigation basically which was clearly not required but for the difficulty of the wife.

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 16-18.

APPEAL: THE ISSUES: 3rd ISSUE: HIS ANSWER

Excerpted from his Answer Brief, this is his Answer to my Third Issue.  My Reply is here.

III.  THE TRIAL COURT DID NOT ERR IN AWARDING SANCTIONS TO THE HUSBAND WHICH WIFE COULD NOT AFFORD TO PAY

Summary

The Trial Court has the discretion to order sanctions based on the vexatious and overly litigious actions of the Former Wife. Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997); Mettler v. Mettler, 569 So. 2d 496 (Fla. 4th DCA 1990); Diaz v. Diaz, 727 So. 2d 954 (Fla. 3d DCA 1999). The Court found that the Former Wife engaged in vexatious or overly litigious conduct by refusing to obey numerous discovery orders, and refusing to attend a court ordered video deposition. The Court awarded the Husband fees and costs caused by the Wife’s bad behavior. There is absolutely nothing in the record to indicate the Wife could not afford to pay attorney’s fees and costs, and in fact, the Former Wife never testified at a single hearing, never put on any testimony, never put on any witnesses, and refused to attend the Final Hearing. The Former Wife seeks to introduce evidence in her Appeal that was never introduced as evidence in the record. “To a woman who had to borrow $2,500 to retain an attorney, that is a small fortune.” This does not appear anywhere in the record, and appears only in the Wife’s Amended Initial Brief.

Argument

The Former Wife, argues that the Former Husband was awarded sanctions which she could not afford to pay. There is nothing in the record that indicates whether or not the Former Wife could afford to pay sanctions. In fact, Appellee cannot ascertain from the Wife’s Initial Brief, exactly what the Former Wife is even addressing. The Former Wife does make mention that in her brief, “The trial court was aware that Wife could not afford to pay her attorney,” but this does not appear anywhere in the record and was never entered into as evidence,” therefore cannot be considered on appeal. The Former Wife does go on to say in her brief, “but it (Court) failed to even inquire as to Wife’s financial circumstance at any point during the final hearing.” Apparently, the Appellant does not understand that it is not up to the Court to inquire of anything. It is up to the party (or her counsel) to have the evidence introduced into the record. Finally, no evidence was entered into the record at trial, because the Former Wife simply chose not to appear at the trial.

The Trial Court has the discretion to order sanctions based on the vexatious and overly litigious actions of the Former Wife. Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997); Mettler v. Mettler, 569 So. 2d 496 (Fla. 4th DCA 1990); Diaz v. Diaz, 727 So. 2d 954 (Fla. 3d DCA 1999). The Court found that the Former Wife engaged in vexatious or overly litigious conduct by refusing to obey numerous discovery orders, and refusing to attend a court ordered video deposition. The Court awarded the Former Husband fees and costs caused by the Former Wife’s bad behavior. There is absolutely nothing in the record to indicate the Former Wife could not afford to pay attorney’s fees and costs, in fact, the Former Wife never testified at a single hearing, never put on any testimony, never put on any witnesses, and refused to attend the Final Hearing. The Former Wife seeks to introduce materials in her Appeal that were never introduced as evidence in the record. In the Wife’s Amended Initial Brief, she states, “To a woman who had to borrow $2,500 to retain an attorney, that is a small fortune.” This does not appear anywhere in the record, and appears only in the Wife’s Amended Initial Brief.