Opinion
Nos. 88-1266, 89-0715 and 89-0717.
October 10, 1989.
Appeal from the Circuit Court, Dade County, Allen Kornblum, J.
Edward C. Vining, Jr. and Thomas B. Scott, Miami, for appellant.
Roy D. Wasson, Miami, for appellee.
Before NESBITT, BASKIN and GERSTEN, JJ.
This is an appeal from (1) a post-dissolution order awarding personal property, and, (2) a probate order approving a claim for the award of the same personal property. These orders provided the former wife with assets to pay her attorney fees in the original dissolution proceeding. We reverse.
A brief history of the original dissolution judgment is necessary to place this appeal in context. Henning Jensen, the former husband, appealed the final order of dissolution of marriage and, shortly thereafter, died. His estate, through its personal representative, became a substituted party on appeal.
The final judgment of dissolution of marriage, after dividing up all of the Jensen's property, provided as follows:
8. This Court hereby reserves jurisdiction as to the disposition of the above-referenced silver in the approximate amount of One Hundred Forty Thousand ($140,000.00) Dollars.
9. The Court hereby further reserves jurisdiction respecting the Wife's claim for attorneys' fees and costs.
Subsequently, this court rendered its decision in Gustafson v. Jensen, 515 So.2d 1298 (Fla. 3d DCA 1987). On appeal, we affirmed the final judgment of dissolution except for the trial court's reservation of jurisdiction to award attorney fees to the wife. On the subject of attorney fees, this court clearly stated:
[I]t was error on the trial court's part to reserve jurisdiction over the proposed award of Mrs. Jensen's attorney fees. Where the parties were left in equitable positions following dissolution, and there was no showing that such reservation would not result in prejudice, each party should assume responsibility for the fees incurred while pleading his or her cause.Gustafson v. Jensen, 515 So.2d at 1301.
The epicenter of this appeal, again brought by the husband's estate, is what the trial court did after receipt of our decision, by ordering the award of $103,000.00 in silver bullion to the wife. The black and white of the transcript is so clear, so elucidating in regard to the trial court's reasoning, that there are no shadows to obfuscate the trial court's intent. The trial court stated:
THE COURT . . . This is the hearing on fees. This is the Court.
"I said, no, I'm not going to give you the silver, because that's the only liquid asset to pay attorneys fees."
That's what I had in mind.
. . . .
I did intend to have him use that silver, because that's the only liquid he had. I didn't want him to mortgage it or sell it in order to pay attorneys fees, so I said I'm reserving jurisdiction, keep that silver, you are going to use that to pay attorneys fees when we make the determination how much the fees are.
If it was otherwise, if I thought that both parties should pay their own fees, I probably would have divided it up differently.
. . . .
I'm going to do what I originally intended to do.
. . . .
MR. VINING: The judgment says 140, approximately.
THE COURT: It was an approximation. And my thinking at that time was that he keep that and pay Mrs. Jensen's fee and whatever other fees he might have of his own, and that's the reason I said, all right, hold onto that $140,000. So, I think, at least to the extent of the fee that I awarded — of course, the silver is gone now — but that should at least be paid over to Mrs. Jensen.
MR. WASSON: Your Honor, the attorneys fees is $103,000.
THE COURT: Okay, I think that sum should be paid over to Mrs. Jensen.
MR. VINING: Your [sic] understand what Your Honor is doing? You are smiling in the face of the Court, because the District Court says no fee awards. She's got plenty of money and Your Honor is doing indirectly what the District Court indicated should not be done.
THE COURT: I think this Court knew what I intended. I am telling them on the record what I intended. I don't know if it's clear.
MR. VINING: I won't quarrel with that statement. I think it wasn't clear, that's why we are arguing it.
THE COURT: I want to make it as clear as possible on this record now, what I intended to do.
MR. VINING: So rather than divide it, Your Honor is going to award $103,000 out of the silver?
THE COURT: Yes, because it was intended for that to be utilized for her attorneys fees.
MR. VINING: With the reservation of the decision, do what the District Court has told you not to do and give her $100,000 to pay her fees; is that what you are doing?
THE COURT: Either that or give her the whole $140,000.
Thereafter, the trial court awarded the wife $103,000.00 in silver bullion. This amount was exactly the same amount the trial court had concluded the wife was entitled to in attorney's fees. The issue of the wife's entitlement to attorney's fees was settled by this court in Gustafson v. Jensen, 515 So.2d at 1301. It is axiomatic that a trial court lacks the power to deviate from the terms of an appellate mandate. Brunner Enterprises, Inc. v. Department of Revenue, 452 So.2d 550 (Fla. 1984); Milton v. Keith, 503 So.2d 1312 (Fla. 3d DCA 1987); Wood v. Manatee Bay Corporation, 386 So.2d 320 (Fla. 2d DCA 1980). Therefore the trial court erred in substituting its judgment for the judgment of this court. Reversed.
NESBITT, J., concurs.
Initially, the trial court reserved jurisdiction to decide the wife's claim for attorney's fees. We decided that was error. Gustafson v. Jensen, 515 So.2d 1298 (Fla. 3d DCA 1987). The trial court also reserved jurisdiction over $140,000. On remand, the court awarded $103,000 of that amount to the wife. That ruling correctly interpreted our mandate.
I disagree with the majority view that the trial court failed to follow our mandate. Trial courts are presumed to obey the law; their rulings are clothed with a presumption of correctness. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979). There is no clearer indication of a trial court's purpose than its own statement of what it seeks to accomplish. Following our remand, the trial court stated that it had withheld the $103,000 in silver bullion, the only liquid asset, to insure that the husband did not dissipate or spend the funds and that the money "should at least be paid to Mrs. Jensen," if it could not go to her attorney. The court stated:
. . . I intended at the time to divide everything as equally and equitably as I could, but allowing him to retain enough to pay attorneys fees and, therefore, if he was not to pay fees, I would have divided it differently. It just seems to be unfair to do otherwise.
The majority opinion creates an inequitable scenario. When the court reserved jurisdiction over funds in order to award Mrs. Jensen attorney's fees, it did not distribute $140,000 worth of silver. Ordinarily, the trial court would have made an equitable distribution of that sum within the exercise of its discretion. When the cause was remanded to the trial court following our mandate, the trial court decided that because our mandate precluded attorney's fees, it would award the reserved sum to Mrs. Jensen for her own use. The majority, however, gives it all to the husband.
The majority has overlooked the fact that the trial court never intended the entire amount reserved to be a windfall to Mr. Jensen or his estate. In fact, the trial court indicated it considered awarding the wife the larger sum of $140,000 instead of the $103,000 it finally awarded. The issue before us in this appeal is whether the trial court followed our mandate at the April 27, 1988 hearing conducted after remand. The trial court complied fully — it awarded undistributed funds to Mrs. Jensen instead of to her attorneys.
The estate did not file a claim for the $140,000 over which the court retained jurisdiction.
This court may not substitute its judgment or close its eyes to the inequity its ruling creates. I would affirm.