CASE NO. 1THpW/*ja> "'"Fa.,

DISTRICT COURT OF APPEAL FOR THE STATE 'O&V^JtRIDA SECOND

DISTRICT / £CASE MO. 2D09^ (^

THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAlr->GXRCUIT, FOR

HILLBOROUGH COUNTY FLORIDA ^CASE MO. 07-DR-Q15811

FLORIDA SUPREME COURT

MIGUEL ANGEL ARIAS,

Appellant,

v.

LAURA ANN ARIAS,

Appellee.

ON APPEAL FROM OPINION FROM THE DISTRICT COURT OF

APPEAL OF FLORIDA SECOND DISTRICT FILE FEBRUARY 10,

2010 AND MANDATE CONFIRM MARCH 23, 2010.

BRIEF OF APPELLANT

MIGUEL ANGEL ARIAS

(PRO PER)

15462 SW 163rd Street

Miami, Florida 33187

813-504-6613

Date Mailed: April 9, 2010

TABLE OF CONTENTS

Page

I. Table of Contents 2

II. Table of Citations 3

III. Statement of Jurisdiction

A. Appellate Court Jurisdiction 4

B. Florida Supreme Court Jurisdiction 4

C. Timeliness of Appeal 4

IV. Statement of the Case and the Facts. 5

V. Summary of Argument 9

A. Final Judgment Dissolution of Marriage Order 9

B. Financial Affidavit 9

VI. Argument 11

A. Final Judgment Dissolution of Marriage Order 11

B. Financial Affidavit 12

VII. Conclusion 14

VIII. Certificate of Service 15

EXH. A 16

Page 2

II. TABLE OF CITATIONS

CASES

Marshall v Marshall,

953 So2d 23 (Fla.App. 5 Dist.,2007) 8, 9,and 10

Driscoll v Driscoll,

915 So.2d 771 (Fla.App. 2 Dist.,2005) 1, and 2

Hoirup v Hoirup,

862 So.2d 780 (Fla.App. 2 Dist.,2003) 1, and 4

RULES/STATUTES

Fla. R. App. P. 9.800 Florida Rules of Appellate Procedure

Florida Rule 9.030.(a)(2)(A)(iv)

Florida Rule 9.120 DISCRETIONARY PROCEEDINGS TO REVIEW DECISIONS

OF DISTRICT COURTS OF APPEAL

Florida Family Law Rules of Procedures

Fla.R.Civ.P.Rule 1.540(b) Mistakes; Inadvertence; Excusable

Neglect; Newly Discovered Evidence; Fraud; etc. 5, 7

Fla.R.Civ.P.Rule 61.075. Equitable distribution of marital

assets and liabilities.

Fla.R.Civ.P.Rule 1.200. Pretrial Procedure

Fla.R.Civ.P.Rule 12.540. Relief From Judgment, Decrees, orOrders 1, 4, 6, 7, 8, 9, 10

Page 3

III. STATEMENT OF JURISDICTION

A. Appellate Court Jurisdiction

The Appellate Court had jurisdiction over this action pursuant

to Florida Rule of Appellate Procedure 9.110, 9.130,

9.140(b)(3), 9.145, 9.146, and 9.160. Final Judgment was

rendered on December 16, 2008.

B. Supreme Court Jurisdiction

The Supreme Court of Florida has jurisdiction under Florida Rule

9.120 DISCRETIONARY PROCEEDINGS TO REVIEW DECISIONS OF DISTRICT

COURTS OF APPEAL and Florida Rule 9.030.(a)(2)(A)(iv).

C. Timeliness of Appeal

The District Court of Appeal for the State of Florida Second

District's Opinion was filed February 10r 2010. Mandate to

confirm order was file March 23, 2010. NOTICE TO INVOKE

DISCRETIONARY JURISDICTION was filed April 1, 2010. The notice

was timely pursuant to Florida Rule 9.120 DISCRETIONARY

PROCEEDINGS TO REVIEW DECISIONS OF DISTRICT COURTS OF APPEAL.

Page 4

IV. STATEMENT OF THE CASE AND FACTS

This case arises from an appeal to DISTRICT COURT OF APPEAL

SECOND DISTRICT of the Final Judgment of the Dissolution of

Marriage Laura Ann Arias, ("ex-wife" herein) and Miguel Angel

Arias, ("ex-husband" herein).

1. Miguel Angel Arias and Laura Ann Arias were married to each

other on September 1, 1973, in Succasunna N. J.

2. September 26, 2007 Mr. Arias (Appellant) was served with

divorce paper.

3. Mediation was schedule and attended with no successful

outcome.

4. Case Management Conference was schedule December 11, 2007 at

01:30PM. The Case Management Conference was ffanc^llad by

Kimberly K. Fernandez - Circuit Court Judge.

5. October 29, 2007 Wife Motion for Temporary Relief.

6. February 29, 2008 hearing on wife motion for Temporary

Relief:

a. Wife shall have exclusive use of Marital Residence

b. Wife shall get $700.00 for food and gas, and use of the

2002 Honda Odyssey.

c. Husband shall continue to pay all other bill. Have use

of the 1997 Honda Accord.

Page 5

d. Marital Home should be place on the market 14 days from

the order.

e. Miguel A. Arias (PRO-SE) requested the court to re

schedule the Case Management Conference, and corrections

to Wife's Financial Affidavit as listed below:

i. Remove all expenses listed that husband is paying.

Driscoll v. Driscoll 915 So.2d 771(Fla.App.2 Dist.,2005)

ii. Update to include ex-wife 35 year old pension

wife has with 'Pfizer Pharmaceutical'.

Rule 1.540, Rule 1.540(b) Florida Rules ofCivil Procedures, and Rule

12.540, Florida FamilyLaw Rules ofProcedure.

iii. Submit Promissory note wife had husband signed while

wife was executor to Mrs. Ford's Will (her mother)

to borrow the money from our children inheritance to

pay marital bill while Husband was unemployed.

7. May 30, 2008 Hearing on Enforcement to Amended Temporary

Relief Order.

a. Miguel A. Arias (PRO-SE) on Motion to Enforce Amended

Temporary Relief Order of February 29, 2008 because

Marital Home was not being listed for sale. Judge

Kimberly Fernandez order house to be listed with wife's

realtor, and realtor should have sole responsibility on

determine the price of the home.

Page 6

b. Miguel A. Arias (PRO-SE) requested for the 2nd time, the

court to order ex-wife to include her pension in the

Financial Affidavit. The Court suggested I subpoena the

records. Mandatory disclosure... Rule 12.285, Florida FamilyLaw Rides of

Procedure, requires each party in dissolution ofmarriage to exchange certain

information anddocuments, andfile a FamilyLaw FinancialAffidavit.

Commentary

1995Adoption. This rule creates aprocedurefor automaticfinancial disclosure in

family law cases. By requiringproduction at an early stage in theproceedings, it is

hoped that the expense oflitigation will be minimized. See Dralus v. Dralus, 627 So.

2d505 (Flo. 2dDCA 1993); Wrona v. Wrona, 592 So. 2d694 (Flo. 2dDCA 1991);

andKatz v. Katz, 505 So. 2d25 (Fla. 4th DCA 1987).

8. September 23, 2008 Motion for Contempt against Husband for

not paying the mortgage.

9. October 3, 2008 Pretrial Hearing

a. Mr. Arias answer contempt charges by submitting bill

that was paid, not allowing mortgage to be paid.

Husband advised the court the marital home was going

through foreclosure proceedings.

i. Miguel A. Arias (PRO-SE) objected (2nd time) to

Wife's Financial Affidavit having expenses being

paid by Husband. Driscollv. Driscoll915So.2d771(Fla.App.2

Dist.,2005)

Page 7

10. December 16, 2008 Final Judgment of Dissolution of Marriage

signed.

11. January 12, 2009 file NOTICE OF APPEAL

12. January 15, 2009 received Acknowledgement of New Case from

the 2nd District Court of Appeal

13. March 9, 2009 file appeal with the 2nd District Court of

Appeal

14. February 10, 2010 Opinion File by the 2nd District Court of

Appeal which recognize that the final judgment fails to

contain requisite finding supporting the equitable

distribution and alimony determination. However, in the

absence of a transcript or appropriate substitute, the

Appellate Court affirmed the lower courts Final Judgment

order.

Page 8

V. SUMMARY OF ARQUMENT

A. Final Judgments of Dissolution of Marriage Order:

1. The 2nd District Court of Appeal has reversed itself when it

denied relief base on the unavailability of a transcript. In

Hoirup v Hoirvp, 862 So.2d 780 (Fla.App. 2 Dist.,2003) where

no transcript was available, the appellate court held that

equitable distribution of marital assets was fundamentally

erroneous on its face. Hoirup v Hoirup directly applies to

number 9, of the Final Judgment.

2. Trial court should distribute marital assets and

liabilities between the parties beginning with the premise

that an equal distribution should occur; however, a trial

court may make an unequal distribution of assets, provided

the court supplies a specific finding of fact to justify

its unequal distribution. (F.S.A 61.075. Equitable

distribution of marital assets and liabilities) (1). In

reference to number 10.

B. Financial Affidavit:

1. False Financial Affidavit, signed under penalties of perjury,

is false testimony in a proceeding. When ex-wife

intentionally excluded her pension from her Financial

Affidavit and deny having knowledge of value on her 35 year

old pension, she committed perjury.

Page 9

2. Request the trial court order the corrections of ex-wife

Financial Statement as it relates to ex-wife listing the

expenses that ex-husband is paying for. Driscollv. Driscoll915So.2d

771(Fla.App.2Dist.,2005). The trial court refuse and the 2nd District

Court of Appeal reverse itself on Driscoll v. Driscoll 915

So.2d 171(Fla.Rpp.2 Dist.,2005) by denying ex-husband relief

on this issue.

Page

10

VI. ARQOMENT

A. Final Judgments of Dissolution of Marriage Order:

1. The 2nd District Court of Appeal has reversed itself when it

denied relief base on the unavailability of a transcript. In

Hoirup v Hoirup, 862 So.2d 780 (Fla.App. 2 Dist.,2003) where

no transcript was available, the appellate court held that

equitable distribution of marital assets was fundamentally

erroneous on its face. Hoirup v Hoirup directly applies to

number 9, of the Final Judgment, were the trial judge

awarded ex-husband asset that is not in existence (Property

is under Foreclosure Proceedings). Because there is no

evidence of the likelihood of any profit to materialize

pursuant to the collection action, the trial court's Final

Judgment is Fundamentally erroneous on its face.

2. Trial court should distribute marital assets and

liabilities between the parties beginning with the premise

that an equal distribution should occur; however, a trial

court may make an unequal distribution of assets, provided

the court supplies a specific finding of fact to justify

its unequal distribution. (F.S.A 61.075. Equitable

distribution of marital assets and liabilities) (1). In

reference to nuaber 10, ex-wife pension is consider a

marital asset and without specific finding of fact to

Page

11

justify trial court decision to allow ex-wife to keep her

35 year old pension, makes the trial court's Final Judgment

Fundamentally erroneous on its face and relief should be

granted.

B. Financial Affidavit:

Mandatory disclosure... Rule 12.285, Florida FamilyLaw Rules ofProcedure, requires each

party in dissolution ofmarriage to exchange certain information anddocuments, andfile a

Family Law Financial Affidavit.

Commentary

1995Adoption. This rule creates aprocedurefar automaticfinancial disclosure infamily

law cases. By requiringproduction at an early stage in theproceedings, it is hopedthat the

expense oflitigation will be minimized See Dralus v. Dralus, 627 So. 2d505 (Fla. 2dDCA

1993); Wrona v. Wrona, 592 So. 2d694 (Fla. 2dDCA 1991); andKatzv. Katz, 505 So. 2d

25 (Fla. 4th DCA 1987).

The Supreme Court has acknowledged the importance by the

changes above, and removing the one year limitation on the

submission of Fraudulent Financial Affidavit.

1. False Financial Affidavit, signed under penalties of perjury,

is false testimony in a proceeding. When ex-wife excluded her

pension from her Financial Affidavit and deny having knowledge

of value on her 35 year old pension, she committed perjury as

exhibit XA' shows a copy of an envelope from %P£xzbx

Pharmaceutical' to ex-wife requesting action on her pension.

Rule 1.540, Rule 1.540(b) Florida Rules of Civil Procedures,

Page

12

and Rule 12.540, Florida Family Law Rules of Procedure. The

trial court refusal to enforce the Financial Affidavit

requirements nullifies the State Legislature and the Supreme

Courts intentions.

2. During the proceeding, Miguel Angel Arias(Pro se) continuously

requested the corrections of ex-wife Financial Statement as it

relates to ex-wife listing expenses that ex-husband is paying

for. Driscollv. Driscoll915So.2d771(Fla.App.2Dist.,2005). The trial court

refuse to order a corrected Financial Statement and the 2nd

District Court of Appeal reverse itself on Driscoll v.

Driscoll 915 So.2d 771(Fla.App.2 Dist.,2005) by denying ex-

husband relief on this issue.

Page

13

VII. CONCLUSION

Based on the forgoing reasons and authorities of law, Mr. Arias

respectfully asks this Honorable Court to:

1. Mr. Arias would expect Relief From Judgment, Decrees, Orders,

or that which the court deemed appropriate.

2. Order ex-wife to submit the value of her pension as of

September 26, 2007 when the papers for divorce were served.

Cash out the pension and distribute it equally between the

parties.

3. Adjust the alimony as to ensure that neither spouse passes

automatically from misfortune to prosperity, or from prosperity

to misfortune, and, in viewing totality of circumstances, one

spouse should not be "shortchanged."

Respectfully submitted.

d 64fiy

Miguel A. Arias15462 SW 163rd Street

Miami, Florida

Tel. (813) 504-6613

Page

14

VIII. CERTIFICATE OF SERVICE

I certify that a copy ofthis document was mailed to the person listed below on April 9,2010.

Florida Supreme Court

500 South Duval Street

Tallahassee, Florida 32399

Clerk ofthe Circuit Court

800 East Twiggs Street

Suite 530

Tampa, Florida 33602

Brent A. Rose

Attorney for Ex-wife

410 Ware Boulevard, Room 401

Tampa, Florida 33619

Miguel Angel Arias

(PRO-SE)

CERTIFICATE OF COMPLIENCE

This brief is set in a Times New Roman 14-points font or CourierNew 12-point font.

Miguel Angel Arias

(PRO-SE)

Page

15

«HA

LAURA

AARIAS

16005

MURIFIELO

DRIVE

ODESSA,

FL

33556-2361

ImportantInformationaboutSavings

andPension

ACTION

MAY

BE

REQUIREDNOW

forchanges

effectiveJanuary

1,2008

I understand that I am swearing or affirming under oath to the truthfulness ofthe claimsmade above and that the punishment for knowingly making a false statement includes finesand/or imprisonment

Dated: *- 2nm

Signature ofParty:y

Printed Name: Miguel Ariaspe Arias

Address. 15462 SW163* Street

City, State, Zip: Miami Florida 33187

Telephone Number: 813-504-6613

Fax Number:

STATE OF FLORIDA

COUNTYOF

Sworn to or affirmed and signed before me on

MOTMTV NOTARY PUBLiebr DEPUTY CLERK

[Print, type, or stamp commissioned name ofnotary or clerk.]

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