DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
LISA MARIE MACCI, P.A.,
Appellant,
v.
STACY D. JAEGER and ROBERT M. JAEGER, D.O.,
Appellees.
No. 4D16-2838
[December 6, 2017]
Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Howard K. Coates, Judge; L.T. Case No.
2009DR013546XXXXNB.
Lisa Marie Macci of Lisa Marie Macci, P.A., Boca Raton, for appellant.
Stacy D. Jaeger, Wellington, pro se.
Rick Ruz, Coral Gables, for appellee Robert M. Jaeger.
GERBER, C.J.
The former wife’s attorney appeals from the circuit court’s final order
essentially denying the attorney’s motion to enforce a retaining lien against
the former husband’s undifferentiated arrearage of both alimony and child
support held in the attorney’s trust account. We affirm.
The former wife’s attorney’s agreement to provide legal services in the
former wife’s dissolution action stated, in pertinent part:
It is specifically agreed that the Law Firm shall have and is
hereby granted all general, possessory and retaining liens and
all equitable, special and attorney’s charging liens upon the
client’s interest in any and all real, personal and intangible
property within the jurisdiction of the court for any balance
due, owing and unpaid and such lien or liens shall be related
back to the date of this agreement and shall be superior in
dignity to any other lien subsequent to the date hereof.
The former husband became delinquent on alimony and child support.
The former wife’s attorney provided services towards obtaining the
arrearage, which the former husband deposited into the former wife’s
attorney’s trust account. The former husband’s deposit of the arrearage
was not differentiated between the alimony and child support.
The former wife’s attorney then sought to enforce a retaining lien
against the undifferentiated arrearage held in her trust account. However,
a magistrate recommended that the circuit court order the former wife’s
attorney to release the undifferentiated arrearage to the former wife.
The former wife’s attorney filed an exception to the magistrate’s report
and recommendation. The attorney again sought to enforce a retaining
lien against the undifferentiated arrearage held in her trust account.
The circuit court accepted the magistrate’s report and
recommendation, and denied the former wife’s attorney’s motion to enforce
the retaining lien. The circuit court’s ruling relied upon an earlier opinion
which we issued in this dissolution action, holding that “a charging lien
may not apply against an award of past due undifferentiated support
accruing during the pendency of the divorce proceedings.” Jaeger v.
Jaeger,
182 So. 3d 697, 698 (Fla. 4th DCA 2015) (“Jaeger I”). The circuit
court concluded that our holding on the charging lien also should apply to
a retaining lien.
This appeal followed. The former wife’s attorney argues that the court
erred in relying on our holding in Jaeger I, because no case prohibits an
attorney from applying a retaining lien against undifferentiated support.
In response, the former wife and the former husband argue that the
reasons for prohibiting an attorney from applying a charging lien against
undifferentiated support also should prohibit an attorney from applying a
retaining lien against undifferentiated support.
We agree with the former wife and the former husband. In Jaeger I, we
relied on Fuqua v. Fuqua,
558 P.2d 801 (Wash. 1977), for the following
reasoning, which remains applicable here:
We see no reason to allow assertion of a lien against support
monies which are, after long delay, made available to children
who have been deprived of the benefit of adequate support on
a regular basis. The fact that such children may have
managed to get along, though deprived of adequate support
for some time, certainly does not compel the conclusion that
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those support monies are in any way less important to the
welfare of the children involved than they were at the time
awarded. Indeed, it is quite likely that the back support would
be needed to satisfy indebtedness incurred by the custodian
on behalf of the family during the period in which the family
was without adequate support.
....
[T]he trial court concluded that those funds were commingled
and not readily severable. Once having determined that an
attorney’s lien could not be asserted against child support, the
trial court concluded that the lien in question, even if
purportedly limited in its application to maintenance alone,
could not properly be asserted against any portion of the
commingled fund. We find the trial court’s conclusion that
this fund was not readily severable to be amply supported by
the record. We also agree that an attorney’s lien may not be
asserted against any portion of funds paid in satisfaction of a
judgment which includes commingled child support.
Id. at 805-06.
Similar to our holding in Jaeger I, even if the retaining lien could have
been enforced against that portion of the undifferentiated arrearage which
constituted alimony, the magistrate also found that the award was for the
necessities of life for the spouse. “A trial court is bound by a [magistrate’s]
factual findings and recommendations unless they are clearly
unsupported by the evidence and clearly erroneous.” Glaister v. Glaister,
137 So. 3d 513, 516 (Fla. 4th DCA 2014) (citation omitted). Although the
circuit court did not reject the magistrate’s findings of fact, competent
substantial evidence supported the magistrate’s findings.
Based on the foregoing, we affirm the circuit court’s acceptance of the
magistrate’s report and recommendation, and denial of the former wife’s
attorney’s motion to enforce a retaining lien against the undifferentiated
arrearage.
Affirmed.
MAY and LEVINE, JJ., concur.
* * *
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Not final until disposition of timely filed motion for rehearing.
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