RICHARD H. LOCKETT, Appellant,
STEPHANIE M. LOCKETT, Appellee.
FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Nick
A. Neumaier, Tampa, for Appellant.
Singer of Allen Dell, P.A., Tampa, for Appellee.
H. Lockett (the Husband) challenges the trial court's
final judgment of dissolution of his marriage to Stephanie M.
Lockett (the Wife). We reverse the final judgment to the
extent that it entered a default against the Husband as to
the issue of alimony. We also reverse the trial court's
child support award and remand for recalculation.
Additionally, we dismiss for lack of jurisdiction the portion
of this appeal that challenges the trial court's
determination that the Wife is entitled to attorney fees. In
all other respects, we affirm.
March 25, 2014, the Wife filed her petition for dissolution
of marriage, and on June 5, 2014, the Husband filed his
answer and counterpetition, in which he sought alimony.
Between that time and the final hearing on May 19, 2015, the
Wife filed two motions to compel the Husband to comply with
her discovery requests and three motions seeking to hold the
Husband in contempt for his failure to comply with various
trial court orders concerning discovery as well as other
matters. In the Wife's third contempt motion, she
requested that the trial court strike the Husband's
pleading for alimony as a sanction for his noncompliance.
final hearing, the trial court heard argument on the
Wife's request and orally ruled that it was finding the
Husband "in contempt" and striking his alimony
pleading as a sanction for his failure to comply with its
previous discovery order. Accordingly, the court refused to
allow the Husband to provide evidence or make argument as to
his entitlement to alimony. In its written final judgment,
the court found that the "Husband has failed to comply
with Court Orders compelling discovery in this matter"
and concluded that the "Husband's disobedience of
Court Orders raises just cause for this court to render a
judgment of default against [the] Husband." As such,
with regard to alimony, the final judgment ruled that
"[n]o alimony shall be paid by either party to the other
as spousal support, whether temporary, permanent, or
Husband argues on appeal that this was error because the
trial court failed to make a finding on the record that he
was willfully or deliberately noncompliant with its discovery
orders. We agree.
Florida Rule of Civil Procedure 1.380(b)(2)(C) states:
"If a party . . . fails to obey an order to provide or
permit discovery . . . the court in which the action is
pending may make . . . [a]n order striking out pleadings or
parts of them . . . or rendering a judgment by default
against the disobedient party."
The standard by which [orders of dismissal or default for
failure to comply with discovery requirements] shall be
reviewed is whether there was an abuse of discretion. . . .
Yet, it is for the very reason that the trial judge is
granted so much discretion to impose this severe sanction
that we have determined that the subject order should
contain an explicit finding of willful noncompliance.
Commonwealth Fed. Sav. & Loan Ass'n v.
Tubero, 569 So.2d 1271, 1273 (Fla. 1990) (emphasis
added) (answering affirmatively the certified question of
whether "an express written finding of willful or
deliberate refusal to obey a court order to comply with
discovery under [rule] 1.380 [is] necessary to sustain the
severe sanctions of dismissal or default against a
noncomplying plaintiff or defendant"); see also Neal
v. Neal, 636 So.2d 810, 812 (Fla. 1st DCA 1994)
("An express written finding of willful or deliberate
refusal to obey a court order to comply with discovery is
necessary to sustain the severe sanctions of dismissal or
default against a noncomplying plaintiff or
defendant."); cf. Patton v. Dep't of
Health & Rehab. Servs., Office of Child Support Enf't
ex rel. D.A.R., 620 So.2d 1107, 1109 (Fla. 2d DCA 1993)
("The failure to include specific reasons for the
imposition of sanctions, though reversible error if attacked
on plenary appeal, does not render a judgment 'void'
as that term is used in . . . rule 1.540."). However,
"no 'magic words' are required but rather only a
finding that the conduct upon which the order is based was
equivalent to willfulness or deliberate disregard."
Commonwealth Fed. Sav. & Loan, 569
So.2d at 1273.
instant case, the trial court's order fails to include an
express finding that the Husband acted deliberately and
willfully in failing to comply with the court's discovery
orders. That omission is especially problematic here where
the Husband did file some discovery but the Wife contended
that his responses were insufficient or meaningless.
Accordingly, we reverse the portion of the final judgment
that renders a default judgment against the Husband as to the
issue of alimony and remand for further
proceedings. On remand, the trial court may
"reconsider the sanction imposed in order to determine
whether there was a deliberate or willful disregard of the
[trial court's] discovery order[s]." See Tubero
v. Chapnich, 552 So.2d 932, 935 (Fla. 4th DCA 1989),
approved, Commonwealth Fed. Sav. &
Loan, 569 So.2d 1271.
Husband also argues on appeal that the trial court erred in
calculating child support. We agree, and the Wife concedes,
that the trial court erred in failing to apply the
substantial timesharing formula set forth in section
61.30(11)(b), Florida Statutes (2015). See also
§ 61.30(1)(a) (mandating that the formula in subsection
(11)(b) be used "whenever any of the children are
required by court order or mediation agreement to spend a
substantial amount of time with either parent"). We also
conclude, and the Wife again concedes, that the trial court
erred by splitting the children's health care expenses
equally instead of on a pro rata basis and in imposing an
equal division of school ...