final until disposition of timely filed motion for rehearing.
appeal from a non-final order from the Circuit Court for
Miami-Dade County, Lower Tribunal No. 16-29823 Bernard S.
Abogados W, and Milvia Sierra, for appellant.
Yolanda Roca, in proper person.
SUAREZ, FERNANDEZ, and LINDSEY, JJ.
Roca ("Husband") appeals from the trial court's
non-final order granting Aura Yolanda Roca's
("Wife") motion to vacate and amend the
parties' marital settlement agreement ("MSA").
We vacate the non-final order and remand for an evidentiary
hearing pursuant to Casto v. Casto, 508 So.2d 330,
333 (Fla. 1987).
parties were married in 1997, and have two minor children. In
December 2016, the Husband filed for uncontested dissolution
of marriage. The petition was a form Petition for Dissolution
from the Family Court Self-Help Program, provided by a
private notary public who assisted the parties in filling out
the form. That form, along with the MSA, provided for
splitting marital property, distribution of debts, child
support, no alimony, and parental time-sharing. The form was
signed by both parties and notarized. When the parties went
to the courthouse and the Family Court clerk examined the
documents prior to filing, the Wife indicated she did not
agree with the "no alimony" provision of the MSA
and allegedly the clerk made a notation to that effect. That
document, however, was not filed. The original document that
indicated "no alimony" was filed. The Wife then
filed a motion to vacate the MSA.
hearing on the Wife's motion to vacate, the trial court
heard testimony from the notary who helped the couple prepare
the Petition and Settlement document, and heard testimony
from the Husband. The notary testified that she did not speak
English well, but could read and write English well. She
testified that she translated the MSA document from English
into Spanish so that the couple could better understand. The
implication is that she helped them fill out the form, then
notarized it. This is the document that indicates both
parties waive alimony, and the document that was eventually
filed with the court. At the end of the hearing, the judge
vacated the MSA and granted the Wife's motion to amend
based on the judge's determination that the notary was
"probably practicing law without a license" and
that "I'm not going to accept an agreement by a
notary that doesn't speak English, I'm not convinced
that all three people involved knew what was going on."
When asked by Petitioner's counsel to make a factual
finding on the record of fraud or duress, the judge said,
"I just did." The Husband appeals.
aside a post-nuptial Marital Settlement Agreement, the trial
court must make two inquiries. First, a spouse may set aside
or modify an agreement by establishing that it was reached
under fraud, deceit, duress, coercion, misrepresentation, or
overreaching. Casto, 508 So.2d at 333. Then,
[t]he second ground to vacate a settlement agreement contains
multiple elements. Initially, the challenging spouse must
establish that the agreement makes an unfair or unreasonable
provision for that spouse, given the circumstances of the
parties. To establish that an agreement is unreasonable, the
challenging spouse must present evidence of the parties'
relative situations, including their respective ages, health,
education, and financial status. With this basic information,
a trial court may determine that the agreement, on its face,
does not adequately provide for the challenging spouse and,
consequently, is unreasonable. In making this determination,
the trial court must find that the agreement is
"disproportionate to the means" of the defending
spouse. This finding requires some evidence in the record
to establish a defending spouse's financial means.
Additional evidence other than the basic financial
information may be necessary to establish the
unreasonableness of the agreement.
Once the claiming spouse establishes that the agreement is
unreasonable, a presumption arises that there was either
concealment by the defending spouse or a presumed lack of
knowledge by the challenging spouse of the defending
spouse's finances at the time the agreement was reached.
The burden then shifts to the defending spouse, who may rebut
these presumptions by showing that there was either (a) a
full, frank disclosure to the challenging spouse by the
defending spouse before the signing of the agreement relative
to the value of all the marital property and the income of
the parties, or (b) a general and approximate knowledge by
the challenging spouse of the character and extent of the
marital property sufficient to obtain a value by reasonable
means, as well as a general knowledge of the income of the
parties. The test in this regard is the adequacy of the
challenging spouse's knowledge at the time of the
agreement and whether the challenging spouse is prejudiced by
the lack of information.
Id. at 333 (citations omitted) (emphasis added).
None of this analysis occurred below. In fact, the transcript
of the hearing on the Wife's motion to vacate the MSA
fails to establish any evidence of fraud, duress, coercion,
deceit, misrepresentation or overreaching. There is also no
financial information, no suggestion that the arrangement is
unfair. At the time the MSA was filed, neither party was
represented by counsel. It is contrary to the sworn testimony
of the notary to conclude that she was practicing law without
a license or gave the couple legal advice of any sort. The
record does not suggest or establish that. As stated in
[t]he fact that one party to the agreement apparently made a
bad bargain is not a sufficient ground, by itself, to vacate
or modify asettlement agreement. The critical test in
determining the validity of marital agreements is whether
there was fraud or overreaching on one side, or, assuming
unreasonableness, whether the challenging spouse did not have
adequate knowledge of the marital property and income of the
parties at the time the agreement was reached. . . . Courts,
however, must recognize that parties to a marriage are not
dealing at ...