DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
RONALD FRENKEL,
Appellant,
v.
PAULA COSTA,
Appellee.
No. 4D19-1841
[October 7, 2020]
Appeal of nonfinal order from the Circuit Court for the Nineteenth
Judicial Circuit, Martin County; Michael J. McNicholas, Judge; L.T. Case
No. 17-DR-0000946.
Robin Bresky and Jonathan Mann of the Law Offices of Robin Bresky,
Boca Raton, for appellant.
John N. Bogdanoff and Christopher V. Carlyle of The Carlyle Appellate
Law Firm, Orlando, for appellee.
PER CURIAM.
Robert Frenkel (“husband”) appeals the trial court’s order denying his
motion to set aside an oral marital settlement agreement (“MSA”) reached
during a temporary relief hearing in the underlying divorce action.
Because the trial court failed to follow the dictates of Richardson v. Knight,
197 So. 3d 143 (Fla. 4th DCA 2016), we reverse.
During the hearing on Paula Costa’s (“wife”) motion for temporary relief,
wife’s attorney requested a short break because the parties had been
exploring a “comprehensive global settlement.” The parties returned more
than an hour later, indicating that they had reached an agreement. Some
terms of the agreement were read into the record, while the disposition of
other issues and assets were negotiated on the record. Wife’s attorney
represented that she wrote most of the agreement but needed to add the
“finishing touches” in light of the most recent input.
Thereafter, the trial court confirmed with the parties individually that
they agreed to the terms and provisions of the settlement as discussed
during the hearing and that their agreements were voluntary and not
coerced. The trial court did not, however, specifically ask the parties if
they discussed all the terms of the agreement with their attorneys or if
they had the opportunity to do so.
Wife later moved to enforce the oral MSA and husband filed a competing
motion to set aside the oral MSA. Both parties relied on our holding in
Richardson in support of their respective motions. Following a hearing
before the same trial judge who presided over the hearing during which
the oral agreement was announced, the trial judge determined the oral
MSA was enforceable and denied husband’s motion. In its order, the trial
judge took “judicial notice that, while on the bench, the Court observed
each party consulting with their attorneys during the recitation of the
Agreement.” This appeal follows.
In Richardson, we held that for an oral MSA to be valid and enforceable,
the trial judge must engage in a two-part
inquiry. 197 So. 3d at 145. First,
“the trial judge must obtain clear and unequivocal assent to the MSA from
each party on the record.”
Id. Second, the trial judge must “confirm that
each party has discussed the MSA with their attorney and fully
understands the terms.” Id.; see also Loss v. Loss,
608 So. 2d 39, 43
(Fla. 4th DCA 1992) (reiterating the importance of setting forth, on the
record, all the terms of an oral settlement agreement and the parties’
affirmative assent thereto, “particularly in the complexities of domestic
relations litigation”).
In the present case, although the trial court did obtain clear and
unequivocal assent to the MSA from each party, it failed to conduct the
second part of the inquiry and confirm whether each party consulted with
their respective attorneys or had the opportunity to do so. Cf. Roskind v.
Roskind,
552 So. 2d 1155, 1156 (Fla. 3d DCA 1989) (upholding an oral
settlement agreement where the wife was specifically asked whether she
“had an opportunity to speak to your attorneys regarding this
[agreement]”). The fact that the trial court later took judicial notice that it
observed each party consulting with their attorneys during the recitation
of the agreement did not serve to remedy this defect. This is especially
true considering a review of the transcript from that hearing reveals
husband spent most of the time speaking with his accountant, not with
his attorney.
We recognize that the inquiry required by the trial court on a settlement
for temporary relief need not meet the same requirements as those for an
oral MSA, or be as stringent as a plea colloquy in a criminal case. See Fla.
R. Crim. P. 3.172. However, as we expressed in Richardson, precedent
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requires the dual inquiries outlined
above. 197 So. 3d at 144–45 (citing
Chovan v. Chovan,
90 So. 3d 898, 900-01 (Fla. 4th DCA 2012);
Loss, 608
So. 2d at 46 n.1;
Roskind, 552 So. 2d at 1155-56). This is particularly
important in a case such as this one where the parties appeared before the
trial court for a temporary relief hearing, generally not a point where they
would anticipate complete settlement of the case.
We therefore reverse this matter and remand the case for further
proceedings.
Reversed and remanded.
DAMOORGIAN, CIKLIN and KLINGENSMITH, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
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