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Hess v. Hess

Florida Court of Appeals, Second District

October 11, 2019

SONDRA HESS, Appellant,
v.
CHAD HESS, Appellee.

         NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DETERMINED

          Appeal from the Circuit Court for Hillsborough County; Chet A. Tharpe, Judge.

          Theodore J. Rechel and Deborah M. Schmitt of Rechel & Associates, P.A., Tampa, for Appellant.

          Mark A. Neumaier, Tampa, for Appellee.

          Smith, Judge.

         Sondra Hess, the former wife, appeals a final judgment of dissolution of marriage and the denial of her motion to set aside a marital settlement agreement based upon the former husband's failure to disclose income in the form of disability benefits on his financial affidavit. The trial court erred in commenting, prior to receiving any evidence, that there was no fraud or misrepresentation and later relying upon these same comments as findings supporting its oral ruling denying the motion. Therefore, we reverse and remand for a new evidentiary hearing on the merits of the former wife's motion and otherwise affirm the final judgment of dissolution of marriage.

         I

         The parties married in September 1998 but by 2013 had begun living apart in different states. After years of separation, on April 27, 2017, the former husband filed a petition for dissolution of marriage. The facts following the filing of the petition and leading up to mediation were uncontentious and uneventful. The former wife filed her answer to the petition. Early mediation was scheduled soon after the trial court issued its standard order referring the parties to mediation. Both parties were represented by counsel throughout the dissolution proceedings.

         In advance of the mediation, the parties exchanged mandatory financial disclosures under Florida Family Law Rule of Procedure 12.285, which included the filing of their respective financial affidavits in conformity with Florida Family Law Rules of Procedure Form 12.902(c). Neither party conducted any discovery prior to the mediation.[1] On September 29, 2017, the parties reached a resolution at the mediation and entered into a marital settlement agreement (MSA).

         The MSA addressed the parties' financial disclosures and provided the following representation in paragraph twenty-five:

Each party acknowledges and agrees that he or she does not desire any additional discovery or valuation of the assets, liabilities, income and financial condition of the other party, and that each has made a full disclosure to the other of his or her known assets and liabilities, income and expenses, and current financial condition.[2]

         The former husband's financial affidavit showed he was retired from the military, received a pension, and was then employed full-time as a contractor. As far as "contingent assets and liabilities," the former husband left this section blank on the Form.[3] The former husband disclosed $0 of gross income in disability benefits.

         Pursuant to the terms of the MSA, the parties agreed the former wife would receive monthly durational alimony. As far as equitable distribution, the parties agreed the former wife would receive, among other effects, monthly payments equal to 34.43% of the former husband's military pension, which was estimated to be approximately $1600 per month based upon a chart provided by the former husband's counsel at the mediation. The former husband's first payment under the MSA was due in early October 2017. A final uncontested dissolution hearing for the purpose of the court adopting the MSA was then scheduled for December 18, 2017.

         Before the final hearing, the former husband made the first equitable distribution payment to the former wife on or about October 2, 2017, which was just days after the mediation. The amount deposited was approximately $400 less than what the former wife expected to receive. The former wife's counsel contacted the former husband's counsel and inquired about the discrepancy.[4] It was during this exchange the former wife learned for the first time the former husband was ...


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