Third District Court of Appeal
State of Florida
Opinion filed April 24, 2019.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-1990
Lower Tribunal No. 14-28193
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Jorge Luis de Diego,
Appellant,
vs.
Janai Barrios,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Valerie R.
Manno Schurr, Judge.
Francisco J. Vargas, P.A., and Francisco J. Vargas; Giel Family Law, P.A.,
and Michael M. Giel (Jacksonville), for appellant.
Isenberg Family Law Group, and Douglas Isenberg and Erica Whittler, for
appellee.
Before EMAS, C.J., and FERNANDEZ, J., and LAGOA, Associate Judge.
PER CURIAM.
Jorge Luis de Diego (“Former Husband”) appeals from two orders: (1) the
trial court’s order imposing an equitable lien in favor of Janai Barrios (“Former
Wife”) on the parties’ marital home that Former Husband claims as homestead
property; and (2) the trial court’s order denying Former Husband’s motion to
disqualify the trial judge. We affirm the trial court’s denial of the motion for
disqualification without further discussion. However, for the reasons discussed
below, we reverse the trial court’s order imposing the equitable lien.
I. FACTUAL AND PROCEDURAL BACKGROUND
Former Husband and Former Wife were married in June 2004 and have two
minor children from their marriage. In June 2014, Former Wife petitioned for
dissolution of marriage. At the time of the dissolution, Former Husband was
disabled and received Social Security income of approximately $850 per month,
and Former Wife earned income of $1636 per month.
On February 23, 2016, the trial court entered a Final Judgment of
Dissolution of Marriage (the “Final Judgment”), which found that the property the
parties lived in during their marriage—although titled solely in Former Husband’s
name and purchased before the marriage—had become marital property.1 The trial
court awarded $140,000—half of the marital home’s appraised value of
1The trial court found that because the “property was mortgaged in its entire value
twice,” Former Wife “signed and appeared on the Mortgage Note on both
occasions,” and “[b]oth mortgages were paid off during the parties’ marriage using
marital funds,” the property was a marital asset.
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$280,000—to Former Wife in equitable distribution to be paid by Former Husband
within ninety days of the Final Judgment. The trial court further reserved general
jurisdiction “for the purposes of enforcing, construing, interpreting, or modifying
the terms of [the] Final Judgment.” Former Husband never appealed the Final
Judgment.
Almost a year later, on February 20, 2017, Former Wife filed an unsworn
Motion to Compel for Contempt and to Enforce Final Judgment (the “Motion to
Enforce”), alleging that Former Husband had willfully “failed and refused to
comply with the Final Judgment and pay the Former Wife” and “remained living
in the home [while] the Former Wife was displaced” and that she was “unable to
retain a new residence for herself and [the parties’] children without her share of
the equity in the marital home.” Based on these allegations, Former Wife
requested that the trial court enter an order requiring Former Husband to pay
Former Wife the $140,000 awarded by the Final Judgment within five days or,
alternatively, requiring Former Husband to either refinance or sell the home to pay
Former Wife. In response to the Motion to Enforce, Former Husband alleged that
he was unable to pay due to his “limited resources, nominal disability income, and
having no significant assets other than his homestead property” and that the trial
court lacked the authority to order the sale or refinancing of the marital home, as it
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would improperly modify the property rights set forth in the Final Judgment and
violate the Florida Constitution’s homestead exemption.
On May 2, 2017, the trial court held a hearing on the Motion for
Enforcement, but rescheduled the hearing for June 16, 2017, to research which
forms of relief were available to Former Wife for enforcement of the Final
Judgment. At the rescheduled hearing, of which this Court only has a partial
transcript, the trial court found that Former Husband’s failure and refusal to pay
Former Wife for over a year was egregious conduct sufficient to warrant the
imposition of an equitable lien on the marital home. At this hearing, however, the
trial court did not take any evidence or testimony from the parties, including
testimony the Former Husband sought to proffer about his alleged willingness to
pay approximately a quarter of his monthly disability income to Former Wife and
his inability to refinance the marital home.
The trial court subsequently entered an order granting the Motion to
Enforce, except as to finding Former Husband in contempt of court. The order
imposed an equitable lien on the marital home in favor of Former Wife, giving her
the right to foreclose on and sell the home at a public sale unless Former Husband
paid Former Wife $140,000 plus statutory interest within ninety days of the
hearing date. The trial court additionally found Former Wife was entitled to her
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attorney’s fees and costs based on Former Husband’s egregious conduct. This
appeal ensued.
II. STANDARD OF REVIEW
We review an order imposing an equitable lien on homestead property for an
abuse of discretion. See Randazzo v. Randazzo,
980 So. 2d 1210, 1213 (Fla. 3d
DCA 2008).
III. ANALYSIS
On appeal, Former Husband contends that the trial court abused its
discretion in imposing an equitable lien on the marital home he claims as
homestead property. We are compelled to agree.
The Florida Constitution provides that a homestead “shall be exempt from
forced sale under process of any court, and no judgment, decree or execution shall
be a lien thereon.” Art. X, § 4(a)(1), Fla. Const. Despite this plain and
unambiguous language, case law provides that “‘[h]omestead property may be
subjected to equitable liens where fraud, reprehensible or egregious conduct is
demonstrated.’” Randazzo v. Randazzo,
980 So. 2d 1210, 1212 (Fla. 3d DCA
2008) (alteration in original) (quoting Sell v. Sell,
949 So. 2d 1108, 1112 (Fla. 3d
DCA 2007)); see also Palm Beach Savings & Loan Ass’n v. Fishbein,
619 So. 2d
267, 270 (Fla. 1993) (stating “that where equity demands it this Court has not
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hesitated to permit equitable liens to be imposed on homesteads beyond the literal
language of article X, section 4”). We are compelled to follow this precedent.
In Randazzo, the trial court awarded the former husband the monetary value
of his interest in the marital home, to be paid within ninety days of the final
judgment of dissolution, in exchange for signing a quitclaim deed to transfer his
interest in the home to the former wife. See id. at 1211. “However, when the 90-
day deadline arrived, the [f]ormer [w]ife neither made payment nor requested an
extension for good cause,” and the former husband moved to enforce the judgment.
Id. The trial court granted the motion, finding that the former wife’s conduct was
sufficiently egregious to impose an equitable lien on the marital home. Id. The
former wife filed for bankruptcy and stayed the dissolution proceedings, but then
sold the marital home and purchased another homestead with the proceeds. Id.
Because of the former wife’s conduct, the trial court imposed an equitable lien on
her new homestead property. Id. This Court affirmed the equitable lien, finding
that the trial court did not abuse its discretion in concluding that the former wife’s
conduct was sufficiently egregious to warrant an equitable lien on her new
homestead. See id. at 1212-13.
Former Wife contends that based on Randazzo, the trial court was correct in
finding that Former Husband’s conduct was sufficiently egregious to justify the
imposition of an equitable lien on the marital home. A review of the record,
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however, shows that the trial court’s factual findings regarding Former Husband’s
conduct are not supported by competent, substantial evidence, but instead are
based solely on allegations in Former Wife’s unsworn Motion to Enforce and
arguments made by the parties’ counsels at the motion hearing. Indeed, the trial
court did not take any sworn testimony or evidence at the hearing, nor did Former
Wife file any sworn affidavit to substantiate the allegations made in her Motion to
Enforce. “[W]hen an equitable lien is sought against homestead real property,
some fraudulent or otherwise egregious act by the beneficiary of the homestead
protection must be proven.” Isaacson v. Isaacson,
504 So. 2d 1309, 1310-11 (Fla.
1st DCA 1987). Because the record contains no evidence of conduct supporting
the application of the judicially created exception to the constitutional homestead
protection, we find that the trial court abused its discretion in imposing an
equitable lien on the marital home. See Nadrich v. Nadrich,
872 So. 2d 994, 995-
96 (Fla. 4th DCA 2004) (“[T]he court did not make any finding that the husband is
using the newly acquired homestead itself as an ‘instrument of fraud’ or as a means
to escape his support obligation to his wife. . . . [T]his record lacks the
particularized evidence and findings detailed there.”); Partridge v. Partridge,
790
So. 2d 1280, 1283-84 (Fla. 4th DCA 2001) (finding that former wife’s affidavit
attached to her motion for summary judgment was factually and legally
insufficient to invoke the egregious conduct exception for placing an equitable lien
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on the homestead); cf. Radin v Radin,
593 So. 2d 1231, 1233 (Fla. 3d DCA 1992)
(noting that the trial court’s finding of egregious conduct was “supported by
substantial competent evidence” in the record). We express no opinion as to
whether Former Husband’s alleged conduct rises to the level of egregiousness that
might warrant the imposition of an equitable lien on his homestead property under
Randazzo and other related cases.
Accordingly, we reverse the trial court’s order granting Former Wife’s
Motion to Enforce. On remand, if the trial court reconsiders imposing an equitable
lien on the marital home based on Former Husband’s alleged conduct, it should
make specific findings based on evidence and testimony procured at a hearing.
Reversed and remanded for further proceedings.
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