Our CFL course teaches you all about different types of property transactions that can affect divorce settlement agreements. They’re often less about who you know, and more about what you know.
In these and other aspects of divorce cases, evidence can be crucial for making a correct verdict. The recent Florida appeals court case of Rokosz v. Haccoun decided whether to vacate lis pendens (written notice of a lawsuit over real estate) as a motion for reconsideration. It became an issue because the trial court had denied the ex-husband the right to due process in not letting him present evidence that certain real estate was exempt.
In 2016, Sarah Haccoun, filed for divorce. She and her husband, Aaron Rokosz, entered into a partial mediated settlement agreement (MSA) that equitably distributed their assets and liabilities, provided that Sarah waived alimony, and resolved child support issues. However, they didn’t resolve other matters, including Sarah’s claim for attorney’s fees.
By May 2018, the trial court entered a partial final judgment of dissolution of marriage, approved the partial MSA, and kept jurisdiction to enforce it and try the remaining issues.
Pursuant to the partial MSA, Aaron received condominiums in New York City and Hialeah, Florida. The partial MSA provided that a “lis pendens” on the Hialeah property would remain to secure the payment of Sarah’s attorney’s fees, if awarded. Following the equitable distribution of the New York City condominium to Aaron, he and his father entered into a 1031 exchange to swap it for properties his father owned: a condo in Pompano Beach and 159 land parcels in Duval County, Florida.
In August 2018, Sarah filed a motion for lis pendens. She argued that through entering into the 1031 exchange with his father, Aaron violated the status quo order. She also asked that the court grant lis pendens on the Pompano Beach condominium and the Duval County land to prevent Aaron from disposing of his assets before a judgment on her attorney’s fees. Following an evidentiary hearing, the trial court granted Sarah’s motion for lis pendens, finding that Aaron’s transfer of the New York condominium and the Duval County parcels to his father violated the status quo order.
That September, Aaron filed a motion to discharge, arguing that the Pompano Beach property was his homestead. Therefore, under the Florida Constitution, the property was exempt from levy or forced sale to enforce Sarah’s claim for attorney’s fees and costs.
At the evidentiary hearing on Aaron’s motion to discharge lis pendens, Sarah objected to his presentation of exhibits to show that the Pompano Beach condominium was his former homestead.
Ultimately, Aaron didn’t testify. Afterward, the trial court entered an order denying his motion to discharge the lis pendens, noting that it classified it as a motion for reconsideration of the issues raised in Sarah’s motion for lis pendens.
Aaron’s “non-final” appeal followed. He argued that he was denied his right to due process because he wasn’t given a meaningful opportunity to be heard on his motion to discharge lis pendens, based on the trial court’s error in treating it as a motion for reconsideration under Sarah’s lis pendens request.
District Court of Appeal of Florida, Third District Ruling
The appeals court sided with Mr. Rokosz, citing Florida law that the lis pendens reconsideration was “a possible violation of due process de novo.” The ruling added that “It is well settled in this state that a trial court has inherent authority to reconsider . . . any of its interlocutory rulings prior to entry of a final judgment or final order in the cause.”
In moving to discharge lis pendens, Aaron didn’t ask the trial court to reconsider the ruling. Instead, he wanted to release the lis pendens on the Pompano Beach condominium, arguing that it was his exempt homestead. (The motion didn’t address the Duval County land.) The trial court, therefore, erred in treating the motion to discharge lis pendens as a motion for reconsideration of its order granting Sarah’s lis pendens motion.
Because of the error and the lack of an evidentiary hearing, the appeals court decided Aaron wasn’t given “a full and fair opportunity to be heard, his right to procedural due process was violated.”
The appeals court remanded the case for an evidentiary hearing on the motion to discharge lis pendens. Our CFL course features a range of financial matters in divorce, including real estate transactions. In your studies, you get an edge over attorneys who lack the knowledge and skill to handle such deals. Find out more about how the course can advance your career in our free information packet today.