Moustafa Farghali v. Joyce Farghali

DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
FOURTH DISTRICT
MOUSTAFA FARGHALI,
Appellant,
v.
JOYCE FARGHALI,
Appellee.
No. 4D14-1364
________________________
MOUSTAFA FARGHALI,
Appellant,
v.
JOYCE FARGHALI,
Appellee.
4D15-1461
[March 9, 2016]
Appeals from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Amy L. Smith and Howard K. Coates, Jr., Judges; L.T. Case
No. 502013DR001696XXXXNB.
Troy William Klein, West Palm Beach, for appellant.
Ronald K. Lantz, North Palm Beach, for appellee.
FORST, J.
Appellant Moustafa Farghali (“Husband”) appeals two orders arising
from his divorce from Appellee Joyce Farghali (“Wife”). Husband’s two
appeals have been consolidated for the purposes of this opinion. We write
first to address the need for proper preservation of appellate issues in
equitable distribution cases. The remainder of the opinion will address
the distribution of Husband’s pension.
Case 14-1364
Husband’s first assertion on appeal is that the trial court erred in its
distribution of the marital property by failing to make specific factual
findings as to the disposition of several of the couple’s assets and
liabilities. However, Husband did not provide a trial transcript for
appellate review, nor did he alert the trial court to this alleged shortcoming
in a motion for rehearing. The First District has held “a party is not
entitled to complain that a judgment in a marital and family law case fails
to contain sufficient findings unless that party raised the omission before
the trial court in a motion for rehearing.” Simmons v. Simmons, 979 So.
2d 1063, 1064 (Fla. 1st DCA 2008); see also David v. David, 58 So. 3d 336,
338 (Fla. 5th DCA 2011) (“[T]he husband failed to preserve this error for
appellate review because he did not file a motion for rehearing in the trial
court raising the alleged inadequacy of factual findings.”).
Although we have not expressly adopted this rule before, we do so now.
As the First District pointed out in Simmons,
A trial judge who is made aware of the fact that a required
finding was omitted could easily redraft the judgment to
include that finding. In contrast, a trial judge who assumes
that the form of the judgment was acceptable and learns of
the alleged deficiency only after the appeal has been
concluded is not likely to be in a position to make the
appropriate findings. It would be unrealistic to assume that
a trial judge would remember, a year or so later, the value of
a car or boat or some item of personal property that was
included in an equitable distribution of property. In some
cases, the trial courts would be required to begin the process
anew, and that would only reward the party who failed to
make a timely objection.
Section 61.075(3)(b) requires the trial court to make a
finding of the individual value of significant assets but it does
not suggest that a failure to make such a finding is an issue
that can be raised for the first time on appeal. Like most other
legal issues, it must be preserved for review by a timely
objection and ruling in the trial court.
Simmons, 979 So. 2d at 1065. Because Husband failed to bring the
failure-to-make-findings issue to the trial court’s attention in a motion for
rehearing, and because there is no trial transcript to facilitate our review
of the decision below, we are compelled to affirm the trial court’s final
2
judgment of dissolution order.
Case 15-4161
After Husband’s first appeal had been perfected, it was brought to the
trial court’s attention that the Qualified Domestic Relations Order (QDRO)
used to distribute Husband’s pension plan was ineffectual for this type of
pension. The trial court entered a second order attempting to remedy this
error and clarify the distribution of this marital asset. Husband argues
the trial court was without jurisdiction to enter this new order. However,
“[w]hile [an] appeal is pending, the trial court retains jurisdiction ‘with
regard to those matters which do not interfere with the power and
authority of the appellate court or with the rights of a party to the appeal
which are under consideration by the appellate court.’” Jallali v.
Knightsbridge Vill. Homeowners’ Ass’n, 152 So. 3d 808, 810 (Fla. 4th DCA
2014) (quoting Palma Sola Harbour Condo., Inc. v. Huber, 374 So. 2d 1135,
1138 (Fla. 2d DCA 1979)). Here, it does not appear the trial court’s actions
materially altered the original judgment, as this change merely modifies
the terminology used to transfer the monies from Husband to Wife without
changing anything of substance. See McDonald v. McDonald, 731 So. 2d
132, 133 (Fla. 4th DCA 1999) (“An order which is the functional equivalent
of a QDRO secures those rights to the wife and places the husband in no
different position than if an actual QDRO were entered.”); Rumler v.
Rumler, 932 So. 2d 1165, 1167 (Fla. 2d DCA 2006) (“Equity empowers the
trial court to fashion an alternative remedy to safeguard the Wife’s interest
in the pension [when a QDRO is ineffective].”).
Unfortunately, even though the trial court’s intent appears to have been
to craft an alternative to the QDRO, the trial court’s language in the second
order leaves some ambiguities as to the exact method of dividing the
pension. Specifically, one possible reading allows for Husband to transfer
a portion of his monthly pension payments to Wife as they are received,
while another conceivable reading of the order implies Husband is to make
a lump sum payment to Wife. In order to address this ambiguity, we
remand the case to the trial court to enter a new order distributing
Husband’s pension plan in an equitable manner. Presumably, this can
best be accomplished by requiring Husband to pay to Wife half of his
monthly pension benefits upon receipt of said payments. A lump sum
distribution of some portion of the total estimated pension value is
inherently speculative and would almost certainly result in one spouse
obtaining greater financial benefits from the pension than the other.
Finally, we reverse the portion of the trial court’s order that made the
equitable distribution order enforceable through the court’s contempt
3
power. “[T]he contempt power of a court [cannot] be invoked for the
‘settlement of property rights as opposed to alimony, support or
maintenance of one to whom the duty is owed.’” Pineiro v. Pineiro, 988 So.
2d 686, 87 (Fla. 4th DCA 2008) (quoting Whelan v. Whelan, 736 So. 2d
732, 733 (Fla. 4th DCA 1999)). “Enforcement through contempt of debts
not involving support violates Article I, section 11 of the Florida
Constitution, which prohibits imprisonment for debt.” Id. “Payments for
equitable distribution . . . are not enforceable by contempt, ‘but only by
the usual remedies available to a creditor against his debtor.’” Pipitone v.
Pipitone, 23 So. 3d 131, 136 (Fla. 2d DCA 2009) (citations omitted) (quoting
Howell v. Howell, 207 So. 2d 507, 510-12 (Fla. 2d DCA 1968)). However,
“[i]f the substance of a provision requiring payment is found to be in the
nature of support, rather than an exchange for a property interest, the
failure to make the payment may be enforced by the remedy of civil
contempt.” Cummings v. Cummings, 37 So. 3d 287, 290 (Fla. 4th DCA
2010). In this case, the payments were ordered as part of an equitable
distribution scheme, not alimony or support. As such, the payments are
not enforceable by contempt.
Conclusion
We affirm the trial court’s February 2014 final judgment of dissolution
of marriage. We reverse the trial court’s March 2015 Order Granting
Former Wife’s Motion for Enforcement of QDRO insofar as it made the
equitable distribution order enforceable through the court’s contempt
power, and we remand to have the trial court enter a new order
distributing Husband’s pension plan in an equitable manner consistent
with this opinion.
Affirmed in part, Reversed and Remanded in part.
LEVINE and CONNER, JJ., concur.
* * *
Not final until disposition of timely filed motion for rehearing.
4