IN THE DISTRICT
COURT OF APPEAL
OF THE STATE OF FLORIDA, FOURTH DISTRICT
CASE NO.: 4D12-XXXX
L.T. CASE NO.: 2011XXXX
[Wife’s Name],
Appellant,
v.
[Husband’s Name]
Appellee.
______________________________________________________________
APPELLEE’S AMENDED
ANSWER 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
Email
TABLE OF CONTENTS
Page
Table of Citations
..........................................................................................................
3
Counterstatement of the Case and Facts
.......................................................................... 4
Summary of the Arguments ...........................................................................................
10
The Argument/Issues
....................................................................................................
14
I. The Trial Court Did Not Deny Former Wife’s
Motion For Protective Order in Regard to Her
Home and Work Addresses ..................................................................
14
II. The
Trial Court Did Not Commit Error
in Striking Former Wife’s Pleadings .....................................................
16
II. THE TRIAL COURT DID NOT ERR IN AWARDING
SANCTIONS TO THE HUSBAND WHICH WIFE
COULD NOT AFFORD TO PAY ....................................................... 25
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 ............................................................................
25
Conclusion ................................................................................................................
28
Certificate of Service
.................................................................................................
29
Certificate of Compliance with Font Requirement ........................................................
29
TABLE OF CITATIONS
Cases:
Diaz v. Diaz, 727 So. 2d 954 (Fla. 3d DCA 1999).
................................................... 26
Ham v. Dunmire, 891 So. 2d 492 (Fla. Supreme Court 2004)
.................................... 21
Kelly v. Schmidt, 613 So. 2d 918 (Fla. 5th DCA 1993)
.............................................. 21
Mettler v. Mettler, 569 So. 2d 496 (Fla. 4th DCA 1990)
........................................... 26
Poling v. Palm Coast
Abstract & Title, Inc.
357 So. 2d 464 (Fla. 2nd DCA 1978) .......................................................................
20
Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997)
............................................................. 26
Statutes:
Florida Family Law Rules of
Procedure 12.380 ....................................................... 10, 16
Florida Rules of Civil Procedure 1.380
.......................................................... 10, 16, 20, 24
COUNTERSTATEMENT
OF THE CASE AND FACTS
This is an Answer Brief to an appeal
from a Final Judgment of Dissolution of Marriage filed by Appellant, [Wife’s
Name - misspelled] (Wife, Former Wife, or Appellant). The Former Husband, [Husband’s
Name], (Husband, Former Husband, or Appellee) filed a Petition for Dissolution
of Marriage on March 22, 2011 in the Circuit Court of the Fifteenth Judicial
Circuit in and for Palm Beach County, Florida. 1 R. 1-4. After a hearing, a
Final Judgment was entered on June 18, 2012. 2 R. 250-254.
It is apparent from the Statement of
the Case and Facts of the Appellant’s Initial Brief that the Former Wife
continues to completely distort and/or fabricate the facts in a self-serving
and legally insufficient manner. During the entire course of this litigation,
the Former Wife was represented by a total of five (5) different successive
attorneys. Finally, on June 13, 2012, the Former Wife’s last attorney withdrew
only 5 days prior to trial, whereby the Former Wife continued to represent
herself pro se.
Throughout the litigation, and
throughout this Appeal, Appellant attempted to present herself as a “domestic
violence victim.” There is absolutely nothing in any court record recognizing
the Former Wife as such. In fact, the parties entered into an Agreed Final
Judgment of Injunction (2 R. 210-218) which specifically states “By agreement of the parties, the Court makes
no findings of fact.” This Agreed Final Judgment of Injunction is not the
subject of this Appeal and has no bearing on this Appeal. The subject
injunction did not prohibit the Husband from having knowledge of the
Wife’s whereabouts. In fact, at the time the parties entered into the Agreed
Injunction, the Wife was residing in the marital home located in Palm Beach
County, Florida, in which she remained for many months, until such time as she
unilaterally liquidated the parties’ marital funds, and fled to an unknown
location. Once the Wife abandoned the marital home, she simply alleged that she
was an “abused spouse,” in an attempt to prevent the Husband from defending
against her claims against him in the dissolution action. The Husband could not
adequately defend himself against the Wife’s claims for spousal support,
equitable distribution, and attorney’s fees, while she continued to refuse to
provide mandatory discovery, refused to submit to deposition, and refused to
provide discovery regarding the marital funds she absconded with.
On or
about February 16, 2012, after receiving inadequate discovery from the Wife,
the Husband filed an ex parte Motion to Compel Discovery. 1 R. 61-62. The Court
granted an Order Compelling Discovery on February 22, 2012, ordering the Former
Wife to fully comply with the Request for Standard Family Law Interrogatories
and Requests to Produce, within ten (10) days from the date of the order. 1R.
70-70.
On
April 9, 2012, the Former Husband filed a Motion for Contempt (1 R. 131-133) as
the Former Wife still refused to comply with the prior Order on the Motion to
Compel. On May 2, 2012, Former Husband filed a Motion to Compel Attendance at
Video/Teleconference Deposition Duces Tecum. 1 R. 190-192. On May 10, 2012, the
Court issued an Order Compelling Wife’s Attendance at Video/Teleconference
Deposition Duces Tecum. 1 R. 195-195. The Court specifically ordered, “The Wife
shall appear in person for Deposition Duces Tecum via Video/Teleconference on
Wednesday, May 23, 2012, from 9:00 am to 12:00 noon.”
Because
the Wife had relocated to the Washington DC area, and because she continued to
make unfounded claims that she was in fear for her life, the Husband agreed to
accommodate the Wife and arranged for video deposition, at his costs. It was
arranged that the Husband and his counsel would appear by video in West Palm
Beach, and the Wife could appear at in the deposition in offices located in the
Washington DC area. The time, date and place were coordinated by the Husband’s
counsel and the Wife’s counsel, and the amended notice of deposition (amended
only as to the location of the Washington DC location) was duly noticed on May
16, 2012. 2 R. 224-225.
Additionally,
on May 11, 2012, the Court issued an Order on Husband’s Motion for Contempt (1
R. 196-199), ordering the Wife to provide specific delineated missing discovery
material to the Husband’s counsel. After numerous warnings, the Court
specifically ordered the following: “If the Wife, [WIFE’S NAME], does not
provide the above listed discovery by the time proscribed, May 21, 2012 by
5:00 p.m., the Wife’s pleadings, including her Counter Petition and Motion
for Temporary Relief, will be stricken in their entirety”. 1 R. 196-199.
This order was not objected to nor was it appealed.
On May
14, 2012, the Wife, in a last ditch effort in an attempt to circumvent the
Court’s prior Order on the Husband’s Motion for Contempt, filed a Motion for
Protective Order (2 R. 208-218), seeking to block standard discovery
information already ordered by the Court to be provided to the Husband. On May
17, 2012, counsel for the Wife and for the Former Husband entered into an Agreed
Order on Wife’s Motion for Protective Order (2R. 223 – 223), whereby the
Wife agreed that she will provide her home address to the Former Husband’s
counsel, but Former Husband’s counsel would not disclose the Former Wife’s
address to the Former Husband. It is relevant to note that Former Husband
continued to reside in Palm Beach County, Florida, and the Former Wife had
relocated permanently to the Washington, D.C. area. Therefore, the parties
resided hundreds of miles apart from one another.
The
Wife ultimately refused to attend the Video deposition as previously ordered by
the Court, and on May 24, 2012, the Husband filed a 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. Wife’s counsel
filed a “Motion In Opposing of Motion to Strike” (sic). 2 R. 226-240.
On May
29, 2012, the Court issued an Order granting the Husband’s Motion to Strike
Wife’s Pleadings (2R. 241-242), 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 but not limited to her
Counter-Petition for Dissolution of Marriage, and Wife’s Motion for Temporary
Relief, and ordered Wife to pay Husband’s attorney’s fees and costs incurred by
the necessity of bringing the action.
Pursuant
to the Order Setting Trial entered on January 19, 2012, on June 18, 2012 (1 R.
60-60), a final hearing was held, with the Husband, and Husband’s counsel in
attendance. The Wife chose not to appear. The Court signed the Final Judgment
of Dissolution of Marriage on June 18, 2012. 2 R. 250-254.
The
Former Wife the filed a Motion for Reconsideration of Final Judgment on June
28, 2012, which was never served on opposing counsel. The Motion for
Reconsideration was denied on July 10, 2012. 2 R. 314-314.
Former
Wife then filed an Appeal and Appendix, which were struck by the Appellate
Court based on the Former Husband’s Motion to Strike, because the Former Wife
had in fact submitted an improper and incomplete record to the Court. The
Former Wife then filed her Amended Brief and Appendix, of which this Answer
Brief is filed in response thereto.
SUMMARY OF THE ARGUMENT
1. The Trial Court Did Not Deny
Former Wife’s Motion For Protective Order in
Regard to Her Home and Work Addresses.
The
Trial Court did not deny the Wife’s Motion For Protective Order. 2 R. 223-223.
In fact, the parties entered into an Agreed Order, whereby the Wife’s Motion
for Protective Order was granted in part. The Wife agreed to disclose her
address to Former Husband’s counsel, and Former Husband’s counsel agreed not to
disclose Former Wife’s address to the Former Husband. There is no issue here,
since the resulting Order on Wife’s Motion for Protective Order was an Agreed
Order, the Wife has absolutely no legal basis to appeal it. The parties entered
in to the Agreed Order via their respective counsel, and there was no objection
filed as to this Agreed Order, nor was a Motion to Vacate Order ever filed.
2. The Trial Court Did Not Commit Error in Striking Former
Wife’s Pleadings
The
trial court has discretion in striking the pleadings of a party for refusing to
comply with court orders. Florida Family Law Rules of Procedure 12.380, and
Florida Rules of Civil Procedure 1.380 specifically governs and allows a Court
to strike pleadings if a party fails to answer a questions as ordered, or fails
to respond to examination. In this matter, the Wife refused to obey numerous
direct orders of the Court, specifically ordering the Wife to provide discovery
to the Husband in order for him to properly defend himself against the Wife’s
claims in her Counter-Petition for Dissolution. The Wife was ordered to provide
discovery in an Order on a Motion to Compel. 1 R. 61-62. The Wife refused to
comply, and was then ordered to provide a very specific list of designated
discovery materials to counsel for the Husband. 1 R. 131-133. The Wife refused
to comply again.
The
Wife was specifically ordered to appear at a video/deposition, coordinated by
counsel for both parties (1 R. 195-195.), of which she again refused to attend.
On May 11, 2012, the Court issued an Order on Husband’s Motion for Contempt (1
R. 196-199.), ordering the Wife to provide specific missing discovery materials
to the Husband’s counsel. The Court specifically ordered as follows: “If the
Wife, [WIFE’S NAME], does not provide the above listed discovery by the time
proscribed, May 21, 2012 by 5:00 p.m., the Wife’s pleadings, including
her Counter Petition and Motion for Temporary Relief, will be stricken in
their entirety”. (1 R. 196-199.) The Wife did not object to this Order. The
Wife simply refused to comply again. Therefore, the Court exercised allowable
discretion, and because of the Wife’s numerous refusals to obey court orders,
and the Wife’s refusal to attend a Court Ordered deposition, the Lower Tribunal
exercised discretion that was well within its’ authority, and properly struck
the Wife’s pleadings.
3. The Trial Court Did Not Commit Error in Awarding Sanctions to
Husband
Regardless of Whether the Wife
Could Afford to Pay or Not
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.
4. 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.
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
I. The Trial Court Did Not Deny Former Wife’s Motion For
Protective Order in
Regard
to Her Home and Work Addresses
The
Trial Court did not deny the Wife’s Motion For Protective Order. 2 R. 223-223.
The Former Wife chooses to ignore the fact that the parties entered into an
Agreed Order, whereby the Wife’s Motion for Protective Order was granted in
part. The Wife agreed to disclose her address to Former Husband’s counsel, and
Former Husband’s counsel agreed not to disclose Former Wife’s address to the
Former Husband. There is no issue here, since the resulting Order on Wife’s
Motion for Protective Order was an Agreed Order, the Wife has absolutely no
basis to appeal it.
The
Motion For Protective Order was not even filed by the Former Wife until May 14,
2012, which was approximately one month prior to the scheduled trial date. The
filing of the Motion For Protective Order was a transparent, frivolous attempt
to prevent the Husband from obtaining discovery which was material and
necessary to the proper defense of the Wife’s claims for spousal support,
equitable distribution and attorney’s fees and costs. The Wife’s living
expenses and her employment information was material to the Husband’s defenses.
On the one hand, the Wife wanted the Husband to pay her support, but then she
refused to disclose her living situation, her expenses, her income, and most importantly,
refused to allow the Husband to discover whether or not her assertions as to
her claims for the items were true and correct. The court had already ordered
the Wife to provide this information to the Husband time and time again. The
Wife brought her Motion for Protective Order simply for the purpose of avoiding
and evading production of mandatory discovery to the Former Husband, discovery
which had been previously ordered to be provided to the Husband. The Former
Wife sought to avoid providing answers to Standard Family Law Interrogatories
under Florida Family Law Rules of Procedure form 12.930(b). Former Wife was
duly served with Request for Standard Family Law Interrogatories and Request to
Produce on March 22, 2011. 1 R. 7-14; 1 R. 15-15. She refused to comply with
the requested disclosure in the time and manner prescribed by law, never filed
any objections, nor did she request any extension of time.
The
Former Wife, in her Amended Initial Brief, attempts to paint herself as an
alleged victim of domestic violence. This is either simply a self-serving
portrait of the Wife, or the ravings of a delusional individual, as there is
absolutely nothing in the record indicating that she is a victim of domestic
abuse. Even if there was, the designation would be completely irrelevant, as
the parties entered into an agreed order as to the Wife’s Motion for Protective
Order. The Wife, in her Amended Initial Brief, simply seeks to introduce new
evidence to the court…she does not reference anything in the record other than
her own unsubstantiated claims. Finally, since the Order was an Agreed Order,
the Former Wife simply has no basis to appeal it.
II. The Trial Court Did Not Commit Error in Striking Former Wife’s
Pleadings
Florida
Family Law Rules of Civil Procedure 12.380 states
that Florida Rule of Civil Procedure 1.380 shall govern the failure to
make discovery in family law matters and related sanctions. Under Fla.R.
Civ.P.Rule 1.380(b)(2), if a party…fails to obey an order to provide or
permit discovery…the court in which the action is pending may make any of the
following orders:…(C) An order striking out pleadings or parts of them…or
rendering a judgment by default against the disobedient party.
In
this case, the Former Wife consistently, continuously and willfully refused to
obey numerous direct orders of the Lower Tribunal, in ordering the Former Wife
to provide discovery to the Former Husband. The Former Wife was served with
Request for Standard Family Law Interrogatories, and Request to Produce on or
about March 22, 2011. 1 R. 7-14; 1 R. 15-15. The Former Wife failed to comply
with the requested disclosure in the time and manner prescribed by law, did not
object, nor did she request an extension of time. On or about February 16,
2012, the Former Husband filed an ex parte Motion to Compel Discovery. 1 R.
61-62. The Court granted an Order Compelling Discovery (1 R. 70-70) on February
22, 2012, ordering the Former Wife to fully respond to the Request for Standard
Family Law Interrogatories and Requests to Produce, within ten (10) days from
the date of the order.
On
April 9, 2012, the Former Husband filed a Motion for Contempt (1 R. 131-133.) as
the Former Wife still refused to comply with the prior Order on the Motion to
Compel. Additionally, on May 2, 2012, Former Husband filed a Motion to Compel
Attendance at Video/Teleconference Deposition Duces Tecum. 1 R. 190-192.
On May
10, 2012, the Court granted the Motion to Compel Attendance At
Video/Teleconference Deposition Duces Tecum and issued an Order Compelling
Wife’s Attendance at Video/Teleconference Deposition Duces Tecum. 1 R. 195-195.
As the Court was well aware of the Former Wife’s prior refusals to provide
discovery, at the hearing to compel Wife’s deposition, the Court specifically
ordered, “The Wife shall appear in person for Deposition Duces Tecum via
Video/Teleconference on Wednesday, May 23, 2012, from 9:00 am to 12:00 noon.”
The Court Order was not objected to at the time it was issued. The Court and
counsel for the Former Husband made specific provisions in an attempt to
accommodate the Former Wife. Since Former Wife had not disclosed her address,
the Court ordered, “Because the Wife resides out of State of Florida and has
not disclosed her address, the Wife shall appear at a location designated by
Wife’s counsel. Wife’s counsel shall coordinate with Husband’s counsel, and
arrange for the location of the Wife’s video/teleconference deposition which
shall be initiated by the Husband’s counsel and scheduled and coordinated
through U.S. Legal Support or any other licensed court reporting agency as
selected by Husband’s counsel”. 1 R. 195-195.
On May
11, 2012, the Court issued an Order on Husband’s Motion for Contempt (1 R.
196-199), ordering the Wife to provide specific delineated missing discovery
material to the Husband’s counsel. After numerous warnings, the Court
specifically ordered as follows: “If the Wife, [WIFE’S NAME], does not provide
the above listed discovery by the time proscribed, May 21, 2012 by 5:00 p.m.,
the Wife’s pleadings, including her Counter Petition and Motion for Temporary
Relief, will be stricken in their entirety”. This Order was not objected
to by Wife’s counsel.
On May
14, 2012, the Wife, in an attempt to circumvent the Court’s prior Order on the
Husband’s Motion for Contempt, filed a Motion for Protective Order (2 R.
208-218), in a transparent attempt to block standard discovery information
already ordered by the Court to be provided to Former Husband. Counsel for the
Former Wife and counsel for the Former Husband entered into an Agreed Order
on Wife’s Motion for Protective Order, whereby the Former Wife agreed that she
would provide her home address to the Former Husband’s counsel, but Former
Husband’s counsel could not disclose the Former Wife’s address to the Former
Husband.
The Former Wife did not attend
the court ordered deposition as ordered to by the Court, even though she was
scheduled to appear in an office in the Washington, DC area, and the Former
Husband was appearing in an office located in West Palm Beach, Florida. These
locations had been coordinated by counsel for the parties. Former Wife’s
counsel did not appear in person at the scheduled deposition, and instead
called the deposition offices at the required time, informing the Former
Husband’s counsel that her client refused to attend the deposition as ordered.
On May 24, 2012, the Husband
filed a 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. Wife’s counsel filed a “Motion In Opposing of Motion to
Strike” (sic). 2 R. 243-245.
On May
29, 2012, after a hearing with counsel for both parties present, the Court
stated, “Well, it’s not really an extreme remedy, because that’s what I said I
was going to do without strict compliance with the prior order, particularly
with the deposition. And if I recall, we had a long discussion about getting
that set up. We talked about doing it on a Saturday to accommodate her and a
temporary job that I believe she had. It’s a video deposition. It’s not like
she’s live in the room with somebody. So I’m going to grant his motion and
strike her pleadings.” 3 TR. Pg. 4, L. 18 – pg. 5. L.2. The Court issued an
Order granting the Husband’s Motion to Strike Wife’s Pleadings (2R. 241-242),
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 but not limited to her Counter-Petition for Dissolution of
Marriage, and Wife’s Motion for Temporary Relief, and ordered Wife to pay
Husband’s attorney’s fees and costs incurred by the necessity of bringing the
action.
In
fact, sanctions Under Fla.R. Civ.P.Rule 1.380(b)(2) were contemplated
specifically for cases of this nature…where a party continuously and
deliberately refuses to obey an order of the court. Former Wife, argues that
the striking of a party’s pleadings as a sanction for discovery misconduct is
“the most severe of penalties and must be employed only in extreme
circumstances,” Poling v. Palm Coast Abstract & Title, Inc. 357 So.
2d 464 (Fla. 2nd DCA 1978), and as such, should not have been stricken. This
case is one of those extreme circumstances, whereby based on the deliberate,
willful, and contumacious manner of the Former Wife, and her acting in defiance
and disobedience of numerous orders issued by the court, the sanction was
clearly appropriate. Former Wife argues in Ham v. Dunmire, 891 So. 2d
492 (Fla. Supreme Court 2004), that the severity of the sanction must be
commensurate with the violation. The Former Wife’s absolute refusal to comply
with court orders to provide standard discovery, and refusal to attend her
deposition as ordered, severely prejudiced the Former Husband, particularly
when the Former Wife was seeking remedies including equitable distribution and
temporary and permanent spousal support. The lower tribunal deemed that the
sanction was clearly appropriate under the circumstances.
Appellant
argues that under Kelly v. Schmidt, 613 So. 2d 918 (Fla. 5th DCA 1993)
the Court’s authority to sanction is not unbridled and must be commensurate
with the offense if numerous, less onerous sanctions are available. There
simply were no less onerous sanctions available…the fact is the Former Wife
simply refused to comply with discovery obligations, after receiving order
after order from the Court. The Former Wife states that striking her Motion for
Temporary Relief would have been appropriate. This case was set for trial on
June 18, 2012. In a bizarre move, counsel for the Former Wife set a Temporary
Relief hearing for June 1, 2012, which was barely two weeks prior to trial.
Striking a temporary relief hearing as such a late date only two weeks prior to
trial, would have absolutely no effect on the Former Wife, and would not act as
any type of sanction against her.
Although
the Former Wife, in her Amended Initial Brief complains that “the trial court
was obviously frustrated with the number of times it had to intervene as a
result of Husband filing motion after motion,” and that the “Husband had still
not fully complied with discovery,” it is clear from the record that the Former
Wife was acting in a deliberate, willful, and contumacious manner, acting in
defiance and disobedience of numerous orders issued by this court. In fact, the
trial court was not frustrated with the Husband…the Court was obviously
frustrated with the Wife’s continued efforts to interfere with providing
mandatory required discovery to the Husband. It is also clear from the record
that the Former Husband had no outstanding discovery requests, no outstanding
orders on any motions to compel, and no findings of contempt against him.
The
Former Wife argues in her Section (2) that she was in substantial compliance
with discovery. The record is clear that she was not in compliance with
discovery on any level. In reviewing the Husband’s Motion to Strike (2 R.
226-240), there were numerous discovery materials which were specifically not
provided by the Wife. The Wife refused to give any information regarding her
assets, her residence, where she worked, what she earned, what her living
expenses were…all while making claims for equitable distribution and temporary
and permanent support from the Husband. Most importantly, she simply refused to
submit to deposition, even after the Court and the Former Husband went to great
lengths and expense to accommodate her.
Next,
in the Former Wife’s Section (3) she argues that she did not have the
opportunity to be heard at the hearing on the Former 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 for
Sanctions and Striking her pleadings. The hearing was duly noticed and was indeed
attended by Wife’s counsel. The Court addressed this argument and stated,
“Well, it’s not really an extreme remedy, because that’s what I said I was
going to do without strict compliance with the prior order, particularly with
the deposition. And if I recall, we had a long discussion about getting that
set up. We talked about doing it on a Saturday to accommodate her and a
temporary job that I believe she had. It’s a video deposition. It’s not like
she’s live in the room with somebody. So I’m going to grant his motion and
strike her pleadings.” 3 TR. Pg. 4 L. 18 – P. 5 L. 2. There was no objection to
the prior order by counsel, so the Court was well within its authority to
strike the Wife’s pleadings.
In
Former Wife’s Section (4), she now argues that the discovery records that she
was ordered to provide were not in her possession or control. This is nowhere
in the record. The Former Wife is attempting to use her appeal to continue
arguing her case. Nowhere in the record does it indicate that the Former Wife
filed any response indicating any records were not in her possession or
control. She simply refused to provide the records as ordered.
The
Former Wife in her Section (5) argues that her counsel was only minutes late in
transmitting a set of disclosures, pursuant to the trial court’s order. The
Former Wife omits the fact that the few items she did transmit, were
insufficient, incomplete, and that she continued to omit material discovery
materials as she was previously ordered to by the court. Again, the Wife did
not comply with the Court’s order to provide discovery.
The
Former Wife in her paragraph (6) argues that “the trial court was silent in
regards to the penalty to be imposed if the Wife failed to appear at the
deposition.” Under Fla.R. Civ.P.Rule 1.380(b)(2) If a party…fails to
obey an order to provide or permit discovery…the court in which the action is
pending may make any of the following orders:…(C) An order striking out
pleadings or parts of them…or rendering a judgment by default against the
disobedient party.” There is no provision in the rule, that the court must
specifically warn a party of the available sanction which may be imposed. This
is a moot point anyway. In this instance, the Former Wife was well aware of the
Court’s impatience with her. After numerous warnings, the Court specifically
ordered as follows: “If the Wife, [WIFE’S NAME], does not provide the above
listed discovery by the time proscribed, May 21, 2012 by 5:00 p.m., the
Wife’s pleadings, including her Counter Petition and Motion for Temporary
Relief, will be stricken in their entirety.” 1 R. 196-199 In fact, the
Former Wife was duly warned by the court that her continued disobedience to
court orders would result in the striking of her pleadings. The Wife did not object
or appeal to the Court’s order.
III. THE TRIAL COURT DID NOT ERR IN AWARDING SANCTIONS TO THE
HUSBAND WHICH WIFE COULD NOT AFFORD TO PAY
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.
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.
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.
CONCLUSION
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.
Respectfully Submitted,
___________________________
Asshat Rat Lawyer, Esq.
Florida Bar No.
Attorney for Appellee
Address
Phone
Fax
Email
AMENDED CERTIFICATE OF SERVICE
I
HEREBY CERTIFY that on December 5, 2012, a digital copy of the foregoing was
transmitted to the Court by electronic filing to efiling@flcourts.org and
the original and copies were hand-delivered to the Court. I further certify
that a true and correct copy was served by email to the following party:
[Wife’s
Name]
Email: [Wife’s Email]
By:
_____________________________
Asshat Rat Lawyer, Esq.
CERTIFICATE OF COMPLIANCE
In
accordance with the requirements of Rule 9.210(a)(2) of the Florida Rules of
Appellate Procedure, this Brief is prepared in Times New Roman 14 point font.
_________________________
Asshat
Rat Lawyer
I was pretty shocked by Asshat Rat Lawyer's Answer Brief. I mean, he's a practicing lawyer, and that's the best he could do? He's a seasoned and experienced divorce lawyer. His Florida Bar record shows that he was admitted in Florida on 4/25/1996. It also shows he graduated from law school in New York in 1991. New York Bar's records indicate he was admitted the same year. That's 20 years of experience. 
I could only find one appellate case in which Asshat Rat has ever submitted a Brief before. It was a pretty straightforward case involving temporary attorney's fees being awarded to his client, a 77 year old man. His client's wife -- a very wealthy 82 year old woman who filed for annulment not long after the wedding -- argued her husband had waived his right to fees during an annulment hearing. Her husband claimed he had the right to attorney's fees based on an antenuptial agreement which the wife stated was entered into with coercion and overreaching. Because the husband retained Asshat Rat to defend against the wife's claims regarding the agreement, the appellate court affirmed the lower court's decision that he was entitled to temporary attorney's fees. I guess that because Asshat Rat won that case, he believes he is a qualified appellate lawyer! 
"It is apparent from the Statement of the Case and Facts of the Appellant’s Initial Brief that the Former Wife continues to completely distort and/or fabricate the facts in a self-serving and legally insufficient manner."
I was also surprised at Asshat Rat's apparent lack of familiarity with the record. His glaring inaccuracies are not difficult to verify, and that's what clerks of appellate courts do, and do very well. 
On FOUR different occasions, he refers to the ONE and ONLY court warning I ever received regarding striking my pleadings. He claims that court warned me "numerous" times and "time and time again". Does he think that including the ONE and ONLY warning four times will be persuasive? 
I will give him some credit. He caught the ONE item mentioned in my brief which is NOT in the record. I made the statement "To a woman who had to borrow $2,500 to retain an attorney, that is a small fortune." That should have been in the transcript of one hearing as it was stated in court -- but he told his court reporter when to come on the record, and that transpired beforehand. I owned that error in my Reply Brief. 
