Third District Court of Appeal
State of Florida
Opinion filed February 17, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D19-2377
Lower Tribunal No. 03-1740
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Dulce Schuenzel,
Appellant,
vs.
John Schuenzel,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, David H.
Young, Judge.
Mary Raymond, for appellant.
Nancy A. Hass, P.A., and Nancy A. Hass (Fort Lauderdale), for
appellee.
Before SCALES, LOBREE and BOKOR, JJ.
SCALES, J.
Dulce Schuenzel (the “Former Wife”) appeals a trial court order that
grants the motion of John Schuenzel (the “Former Husband”) to distribute
funds derived from the sale of the parties’ house. We affirm the trial court’s
factual determinations relating to the distribution of the proceeds because
they are supported by competent substantial evidence. We dismiss for lack
of jurisdiction that portion of the Former Wife’s appeal challenging the trial
court’s determination that the Former Husband is entitled to attorney’s fees,
and we reverse that portion of the order granting the Former Husband
entitlement to prejudgment interest and remand the issue to the trial court to
properly calculate the interest amount.
I. Relevant Background
The parties were divorced in 2003, and their marital settlement agreement
(the “MSA”) was adopted by the trial court as part of the final dissolution
decree. Pursuant to the MSA, the Former Wife was required to make the
mortgage, insurance, and tax payments on the couple’s home. Despite the
Former Wife’s obligation to make these payments pursuant to the terms of
the MSA, the Former Husband, to protect his credit, made multiple such
payments from July 2006 until March 2010.
The record reflects that, after the parties’ divorce, the Former Wife and
the parties’ son lived in the house until approximately July 2008, when the
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they moved out of the house and the parties began renting the house. After
the house was sold in 2016, the net proceeds from the sale ($275,105.68,
after certain court-ordered disbursements) were held in trust by the Former
Husband’s attorney. The Former Husband’s motion sought, among other
things, an order authorizing his counsel to distribute the sale proceeds to the
parties, with the trial court making appropriate adjustments that would take
into consideration the mortgage, insurance, and tax payments the Former
Husband had made.
The Former Wife asserted below that the Former Husband was not
entitled to a credit for such payments, that the Former Wife was entitled to
all of the rental proceeds derived from the parties’ rental of the house, and
that the Former Wife had made certain repairs to the house for which she
should be credited.
The trial court conducted a multi-day evidentiary hearing and, on July
9, 2019, entered a detailed order that directed the Former Husband’s
counsel to distribute $175,303.89 of the funds to the Former Husband. The
trial court’s order found that the Former Husband had made mortgage,
insurance, and tax payments totaling $66,558.42 for which the Former Wife
was responsible pursuant to the MSA. The order determined that the Former
Husband was entitled to prejudgment interest on this $66,558.42, though not
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from the 2006-2010 period during which the Former Husband had made the
payments, but starting from July 2008, the date the tenant moved into the
house. The order also determined the Former Husband was entitled to
attorney’s fees based on the default provision of the MSA, but did not affix
an amount of fees. The trial court denied the Former Wife’s motion for
rehearing. The Former Wife timely appeals both orders.
II. Issues on Appeal
On appeal the Former Wife makes four arguments. First, she argues
that she was not afforded due process because the Former Husband’s
distribution motion did not adequately put her on notice that the trial court
would adjust distribution payments based upon the Former Husband’s
mortgage, insurance, and tax payments. Second, she argues that the trial
court erred by attributing only half of the rent collected to the Former Wife.
Third, she argues that the trial court erred by awarding prejudgment interest
to the Former Husband for the total amount of his mortgage, insurance, and
tax payments. Fourth, the Former Wife argues that the trial court erred by
determining the Former Husband was entitled to attorney’s fees for the
Former Wife’s breach of the MSA.
III. Analysis
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Without further elaboration, we conclude both that the Former Wife
was afforded due process, and that the trial court’s distribution
determinations were supported by competent substantial evidence. We
thereby dispose of the Former Wife’s first two arguments.
We next address that portion of the trial court’s order determining that
the Former Husband is entitled to attorney’s fees based on the default
provision in the MSA. Because the trial court’s order merely grants
entitlement to fees, without liquidating the amount of such fees, we lack
jurisdiction to adjudicate this issue and dismiss the appeal without prejudice
to the Former Wife timely appealing any final order awarding fees to the
former husband. Yampol v. Turnberry Isle S. Condo. Ass’n,
250 So. 3d 835,
837 (Fla. 3d DCA 2018).
Finally, we are compelled to reverse that portion of the trial court’s
order determining that the Former Husband is entitled to prejudgment
interest on the $66,558.42 in mortgage, insurance, and tax payments, with
such interest accruing from “July 2008 when the tenant moved into the
house.” Our de novo review 1 of the record indicates that the Former Husband
1
Our standard of review of an award of prejudgment interest is de novo.
Conway v. Conway,
111 So. 3d 925, 928 (Fla. 1st DCA 2013).
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made these payments – which were required by the MSA to be made by the
Former Wife – between July 2006 and March 2010.
The purpose of prejudgment interest is to make the plaintiff whole from
the date of the loss, to compensate him for losing the use of his money during
that period. Catalfumo v. Catalfumo,
704 So. 2d 1095, 1100 (Fla. 4th DCA
1997). Once the finder of fact sets the amount of damages, “the damages
are retroactively considered liquidated damages, and the plaintiff is entitled
to prejudgment interest back to the date that the damages were due.” Capitol
Env’t Servs., Inc. v. Earth Tech, Inc.,
25 So. 3d 593, 597 (Fla. 1st DCA 2009).
Hence, prejudgment interest on the Former Husband’s mortgage, insurance,
and tax payments should be calculated separately for each payment. These
calculations should be based on the date of each payment made by the
Former Husband that, pursuant to the terms of the MSA, should have been
made by the Former Wife. 2
2
The order on appeal does not calculate or quantify the prejudgment interest
to which the former husband is entitled. Rather, it states, in relevant part, as
follows: “. . . said interest shall be calculated by counsel for the Former
Husband and sent to counsel for the Former Wife within 30 days of the entry
of the instant Order.” Hence, the trial court obviously intends to enter a
separate order that authorizes the distribution of additional funds to the
Former Husband for prejudgment interest. Unlike an order merely granting
entitlement to attorney’s fees – which is not appealable, see
discussion supra
– an order granting entitlement to prejudgment interest may be appealed,
and the entitlement determination may be reviewed, if it is clear from the face
of the order that entitlement to prejudgment interest has been determined.
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Affirmed in part; dismissed in part; reversed in part and remanded with
instructions.
See Westgate Miami Beach, LTD v. Newport Operating Corp.,
55 So. 3d
567, 574-75 (Fla. 2010).
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