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Quillen v. Quillen

Florida Court of Appeals, First District

May 3, 2018

Yvette D. Quillen, former wife, Appellant,
v.
William E. Quillen, former husband, Appellee.

         Not final until disposition of any timely and authorized motion under Fla. R. App. P. 9.330 or 9.331.

          On appeal from the Circuit Court for Duval County. John I. Guy, Judge.

          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 Appellee.

          Jay, J.

         Yvette 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.

         I.

         Before 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.

         A.

         In 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 Wife."

         Accordingly, 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.

         "Motions" 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).

         In the 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 DCA 2003))).

         Instead, 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 ...


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