FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF
from the Circuit Court for Hillsborough County; Chet A.
Theodore J. Rechel and Deborah M. Schmitt of Rechel &
Associates, P.A., Tampa, for Appellant.
A. Neumaier, Tampa, for Appellee.
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.
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.
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. On September 29,
2017, the parties reached a resolution at the mediation and
entered into a marital settlement agreement (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.
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. The former
husband disclosed $0 of gross income in disability benefits.
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.
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. It was during this exchange the
former wife learned for the first time the former husband was