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Lattanzio v. Hoffmann

Florida Court of Appeals, Third District

July 31, 2019

Claudio Lattanzio, Appellant,
v.
Jerika Hoffmann, Appellee.

         Not final until disposition of timely filed motion for rehearing.

          An Appeal from the Circuit Court for Miami-Dade County, Daryl E. Trawick, Judge. Lower Tribunal No. 15-27896

          Andrew M. Kassier, P.A., and Andrew M. Kassier, for appellant.

          Jerika Hoffmann, in proper person.

          Before EMAS, C.J., and FERNANDEZ and HENDON, JJ.

          HENDON, J.

         Claudio Lattanzio ("Husband") appeals from the final judgment of dissolution of marriage and a related order entered by the trial court after the entry of an earlier order striking the Husband's pleadings and entering a default against him for failing to attend an order to show cause hearing. For the reasons that follow, we reverse and remand for further proceedings.

         Jerika Hoffman ("Wife") filed a petition for dissolution of marriage and the Husband, through counsel, filed an answer to the petition. The Husband's counsel subsequently moved to withdraw as counsel and on March 8th, 2017, the trial judge entered the order granting counsel permission to withdraw. The order provided that the Husband could be served future notices and pleadings at the marital home.

         On March 15th, 2017, the trial court entered an ex parte Order on Mediator's Report, reflecting that the parties entered into a partial mediated settlement agreement ("partial MSA") the previous day.[1] The trial court's order states that the partial MSA will be incorporated into the final judgment of dissolution of marriage and that the parties are required to comply with all matters and/or issues resolved in the partial MSA. The partial MSA provides, among other things, that (1) the Wife's counsel was required, within five days, to provide the Husband with the names of three appraisers for the marital home and for the boat, and thereafter, the Husband, within five days, was required to inform the Wife's counsel which appraisers he had chosen, with the parties dividing the costs of the appraisal services; (2) the Husband agreed to move out of the marital home by April 13th, 2017; and (3) the Husband was required to comply with mandatory discovery before March 23rd, 2017.[2] There is no indication on the trial court's ex parte Order on Mediator's Report that the order was sent to the Husband, who at that point was proceeding pro se.

         On April 18th, , 2017 the trial court issued an order scheduling the case for final hearing, or, in the alternative, a case management conference for May 17th, 2017. The Husband failed to attend the May 17th hearing. On that same day, the trial judge entered and signed an order to show cause why the Respondent/Husband should not be held in contempt for failing to file and serve his choice of appraisers for the marital home and the family boat on counsel for the wife as previously ordered by the MSA. The terms of the order to show cause required the Husband to appear in court on May 24th at 10:30 a.m. to show why he should not be held in contempt or why other sanctions should not be imposed due to his lack of compliance.

         As supported by the Record on appeal, court documents show that the Order to Show Cause issued by the trial court on May 17th, 2017 was mailed not to the Husband at the marital home, but instead was mistakenly sent to the Husband's former counsel who had withdrawn as counsel for the Husband on March 8th 2017, over two months earlier.

         On May 24th, 2017, the Husband failed to appear at the order to show cause hearing. The trial court entered an order (1) finding that he was in willful noncompliance with the trial court's orders entered on March 15th, 2017 and May 17th, 2017, (2) striking the Husband's pleadings and entering a default against him, (3) ordering the Husband to vacate the marital home by June 1st, 2017, and (4) permitting the Wife to commission the appraisals of the marital home and the boat, and ordering the Husband to pay 50% of the appraisal costs.

         The final hearing was conducted on August 17th, 2017, with the Husband appearing pro se. At the final hearing, the remaining issues to be determined by the trial court were child support and the equitable distribution of the parties' marital assets and liabilities. At the commencement of the final hearing, the trial court stated that it had already stricken the Husband's pleadings, and therefore, the Husband could not present a defense.

         The trial court entered a final judgment of dissolution of marriage. The final judgment states that the Husband's pleadings were stricken and a default entered against him when he failed to attend the show cause hearing on May 24th, 2017 "despite due notice." In the final judgment, the trial court, among other things, determined that the Husband's 20% interest in DBAG Group Corp. was a marital asset, [3] distributed the parties' marital assets and liabilities, and awarded child support to the Wife based on income imputed to the Husband. The Husband filed a motion for rehearing of the ...


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