Yvette D. Quillen, former wife, Appellant,
William E. Quillen, former husband, Appellee.
final until disposition of any timely and authorized motion
under Fla. R. App. P. 9.330 or 9.331.
appeal from the Circuit Court for Duval County. John I. Guy,
William S. Graessle and Jonathan W. Graessle of William S.
Graessle, P.A., Jacksonville, for Appellant.
Michael J. Korn of Korn & Zehmer, P.A., Jacksonville; and
Homer A.C. Bliss of Homer A.C. Bliss, P.A., Jacksonville, for
D. Quillen ("former wife") appeals the trial
court's order dismissing her Supplemental Petition for
Modification and Amended Motion for Civil Contempt and
Enforcement. The trial court determined-based on the
"four corners" of the parties' Consent Final
Judgment of Dissolution of Marriage and its "clear and
unambiguous" language-that the alimony obligation of
William E. Quillen ("former husband") terminated
once the parties' youngest child reached the age of
majority. Thus, it dismissed the former wife's original
Motion for Civil Contempt and Enforcement. In
addition-because it concluded there were "no outstanding
alimony obligations"-the trial court held that the
former wife's Supplemental Petition for Modification and
Amended Motion for Civil Contempt and Enforcement were
"moot and therefore dismissed." For the reasons
that follow, we reverse and remand for further proceedings.
reaching the merits of this appeal, we must first address the
procedural posture of the case as it existed below. It is
necessary that we do so to address the events that led to the
trial court's decision to grant the motion to dismiss the
motion for civil contempt and enforcement.
November 2016, the former wife filed her Motion for Civil
Contempt and Enforcement. In her motion, the former wife
alleged that a Consent Final Judgment of Dissolution of
Marriage (alternatively, "CFJ") had been approved
and entered on May 2, 2003, obligating the former husband to
pay her $500 per month in alimony, while requiring the former
wife to pay the former husband $500 per month in child
support. She further asserted that the provisions of the CFJ
addressing alimony and child support provided that the former
husband's alimony obligation would be offset by the
former wife's support obligation "and vice
versa." The former wife then alleged that the
parties' youngest child had reached the age of majority
in September 2011, "thereby eliminating any claim to an
offset of the alimony obligation owed to the Former
the former wife claimed that the former husband's alimony
obligation had remained "fully due since October,
2011" through the date of the former wife's motion,
yet the former husband failed to honor that obligation.
Therefore, the former wife contended that she was entitled to
recover the accrued alimony arrearage from the former
husband, as well as ongoing monthly alimony in the amount
awarded in the CFJ. She also alleged that the former husband
should be held in contempt for his failure to meet his
monthly alimony obligation. The CFJ was not appended
to the motion.
in family practice matters are controlled by Florida Family
Law Rule of Procedure 12.100(b), which has its counterpart in
Florida Rule of Civil Procedure 1.100(b). Rule 12.100(b)
provides that "[a]n application to the court for an
order must be made by motion which must . . . state with
particularity the grounds therefor, and must set forth the
relief or order sought." It is a tenet of motion
practice that-while written responses to motions are not
required-when the non-moving party opposes a motion, it may
file a response or a memorandum of law in opposition to the
motion. See generally The Florida Bar Continuing
Legal Education Materials, Florida Civil Trial
Preparation: Motion Practice (Eighth ed. 2017).
present case, however, the former husband did not file a
response or a memorandum of law in opposition to the former
wife's motion. Instead, he filed a "motion to
dismiss" the former wife's motion, arguing that the
plain and unambiguous language of the CFJ established that no
alimony obligation existed once the youngest child reached
the age of majority and the former wife's child support
obligation ceased. In essence, then, the former husband filed
a defensive motion. But defensive motions are-by
rule-directed only to pleadings. See Philip
J. Padovano, 5 West's Florida Practice Series, Civil
Practice § 7:27 (2017-18 ed.) ("[A] party may
move to dismiss a pleading if the motion to dismiss asserts a
defense that can be raised by motion . . . ."). And,
more pertinent to the present discussion, "a motion is
not a pleading." Bruce J. Berman & Peter D.
Webster, 4 West Florida Practice Series, Civil
Procedure § 1.100:6 (April 2017) (footnote
omitted); see also Boca Burger, Inc. v. Forum, 912
So. 2d 561, 567 (Fla. 2005) ("[A] motion to dismiss is
not a 'responsive pleading' because it is not a
'pleading' under the rules. See Fla. R. Civ.
P. 1.100(a)."); Green v. Sun Harbor Homeowners'
Ass'n, 730 So. 2d 1261, 1262-63 (Fla. 1988)
(correcting a statement that the term "pled"
included filing motions); Viering v. Fla. Comm'n on
Human Relations, 128 So. 3d 967, 969-70 (Fla. 1st DCA
2013) ("Motions are not pleadings."); N.S. v.
Dep't of Children & Families, 119 So. 3d 558,
561 (Fla. 5th DCA 2013) (emphasis in original) ("It is
well settled that '[a] motion is not a
pleading.'" (quoting Sardon Found. v. New
Horizons Serv. Dogs, Inc., 852 So. 2d 416, 421 (Fla. 5th
Florida Family Law Rule of Procedure 12.140(b), as does its
equivalent in Florida Rule of Civil Procedure 1.140(b),
requires "[e]very defense in law or fact to a claim for
relief in a pleading must be asserted in the
responsive pleading, if one is required, but the following
responses may be made by motion at the option of the
pleader: . . . (6) failure to state a cause of action . . .
." (Emphasis added.) In the best light, the former
husband's motion to dismiss might be viewed as moving to
dismiss for failure to state a cause of action. But it
nonetheless remained ...