SUPREME COURT OF FLORIDACASE NO. SC12-18483DCA CASE NO. 3D10-3009

YOLANDA CARMEN FERRARA,

Appellant,

vs.

EDSON CARLOS DE CAMPOS,

Appellee.

APPELLEE'S ANSWER BRIEF ON JURISDICTION

NANCY A. HASS, ESQUIRENANCY A. HASS, P. A.2100 East Hallandale Beach BoulevardSuite 200Hallandale Beach, Florida 33009Telephone (954) 889-0155Facsimile (954) 889-0154E-mail: nahpa@nahpalaw.comAttorney for Appellee

TABLE OF CONTENTS

Table of Contents 2

Table of Citations 3

Introduction 5

Summary of the Argument 5

Legal Argument/Issues Presented for Review 7

I. The opinion of the District Court of Appeal Third District inDe Campos v. Ferrara, 90 So.3d 865 (Fla. 3d DCA 2012) doesnot expressly or directly conflict with the opinion of theDistrict Court of Appeal Fifth District in Flanders v.Flanders, 516 So.2d 1090 (Fla. 5th DCA 1987) or the opinionof this Honorable Court in Bane v. Bane, 775 So.2d 938 (Fla.

b 2000)7

Conclusion 14

Certificate of Service 15

Certificate of Compliance with Filing and Font Requirements 15

TABLE OF CITATIONS

Cases Page No.

Bane v. Bane775 So.2d 938 (Fla. 2000) 6, 7, 13, 14

De Campos v. Ferrara90 So.3d 865 (Fla. 3d DCA 2012) 6, 7, 13, 14

Encarnacion v. Encarnacion877 So.2d 960 (Fla. 5th DCA 2004) 8, 9

Flanders v. Flanders516 So.2d 1090 (Fla. 5th DCA 1987) 6, 7, 8, 9, 10, 13, 14

Fortner v. Fortner631 So.2d 327 (Fla. 2d DCA 1994) 12

Hirschenson v. Hirschenson996 So.2d 905 (Fla. 4th DCA 2008) 12

Kirkland v. Kirkland253 So.2d 728 (Fla. 1971) 12

Kass v. Kass560 So.2d 293 (Fla. 4th DCA 1990) 12, 13

Smilack v. Smilack858 So.2d 1072 (Fla. 5th DCA 2003) 10

X Corp. v. YPerson622 So.2d 1098 (Fla. 2d DCA 1993) 11

TABLE OF CITATIONS

Statutes Page No.

§ 61, Florida Statutes (2010) 5, 6, 8, 9, 10, 12, 13

§ 61.16, Florida Statutes (2010) 5, 6, 10, 12

§ 61.16(1), Florida Statutes (2010) 9, 10

§ 86, Florida Statutes (2010) 11

INTRODUCTION

The Appellant, YOLANDA CARMEN FERRARA, the Appellee in the District

Court of Appeal Third District will be referred to as the "Former Wife" or "the

Appellant". The Appellee, EDSON CARLOS DE CAMPOS, the Appellant in the

District Court of Appeal Third District will be referred to as the "Former Husband" or

"the Appellee".

SUMMARYOFTHEARGUMENT

In this case, the trial court had jurisdiction and the Former Husband was entitled

to an award of attorney's fees under Florida Statutes Section 61.16 for his attorney's

services that were rendered to enforce the parties' Final Judgment that incorporated the

parties' Property Settlement Agreement where the Former Wife was in violation of the

Agreement. Even in the case where a property settlement agreement contains a specific

waiver, the Former Wife could still be liable for the Former Husband's attorney's fees

where enforcement proceedings were necessitated by the conduct of the Former Wife in

failing to comply with the terms of the parties' Property Settlement Agreement.

Here, the Former Husband filed his enforcement action pursuant to Florida

Statutes Section 61 and the final determination as to the matters raised in his

enforcement proceeding were adjudicated in the Family Court by the lower tribunal.

E The Former Husband's action was very clearly not a declaratory action as defined by

Florida Statutes Section 86, barring the trial court from making an award of attorney's

fees and costs in favor of the Former Husband. The sole existing issue in this case was

5

factual in nature and properly determinable in an action at law and declaratory relief

was not available to the Former Husband. The Former Husband had no doubt about his

rights under the parties' Property Settlement Agreement and was merely seeking to

enforce said Property Settlement Agreement to compel the Former Wife to provide him

with his equal share of the proceeds from the sale of Plant Care. Accordingly, the

EFormer Husband's request for an award of attorney's fees and costs was clearly

governed by Florida Statutes § 61.16. Even in those cases where actions have been

brought in other courts, where the action arose from a dissolution or post-dissolution

proceeding, the Appellate Courts of this State have repeatedly sustained awards of

attorney's fees under Florida Statutes Section 61.

Consequently, the Former Husband respectfully submits that the opinion of the

District Court of Appeal Third District in De Campos v. Ferrara, 90 So.3d 865 (Fla. 3d

DCA 2012) does not expressly or directly conflict with the opinion of the District Court

of Appeal Fifth District in Flanders v. Flanders, 516 So.2d 1090 (Fla. 5th DCA 1987)

or the opinion of this Honorable Court in Bane v. Bane, 775 So.2d 938 (Fla. 2000) and,

I accordingly, this Honorable Court should not accept jurisdiction herein.

ARGUMENT

I. THE OPINION OF THE DISTRICT COURT OF APPEALTHIRD DISTRICT IN DE CAMPOS V. FERRARA, 90 SO.3D865 (FLA. 3D DCA 2012) DOES NOT EXPRESSLY ORDIRECTLY CONFLICT WITH THE OPINION OF THEDISTRICT COURT OF APPEAL FIFTH DISTRICT INFLANDERS V. FLANDERS, 516 SO.2D 1090 (FLA. 5TH DCA1987) OR THE OPINION OF THIS HONORABLE COURTIN BANE V. BANE, 775 SO.2D 938 (FLA. 2000)

The Former Wife incorrectly and inaccurately argues that there is a conflict

between the opinion of the District Court of Appeal Third District in De Campos v.

Ferrara, 90 So.3d 865 (Fla. 3d DCA 2012) and that of the opinion of the District Court

of Appeal Fifth District in Flanders v. Flanders, 516 So.2d 1090 (Fla. 5th DCA 1987)

and the opinion of this Honorable Court in Bane v. Bane, 775 So.2d 938 (Fla. 2000).

In this case, the Former Husband's Verified Emergency Supplemental Petition

for an Ex-Parte Temporary Injunction Preserving the Status Quo and Freezing Sales

Proceeds, for an Order Compelling Payment, Contempt, and Other Relief was founded

upon the jurisdiction acquired by the trial court over the parties in the dissolution of

marriage proceedings and the matter pertained to the enforcement of the parties' Final

Judgment. Contrary to the Former Wife's argument, clearly, the trial court had the

jurisdiction and authority to award the Former Husband attorney's fees and costs,

consistent with the very authority enunciated by this Honorable Court in Bane v. Bane,

775 So.2d 938, 941-42 (Fla. 2000) (where the proceedings are filed under chapter 61

E and pertain to enforcement or modification of the final judgment of dissolution and are

founded upon the jurisdiction acquired by the court over the parties in the divorce

proceedings section 61.16 does apply).

Citing to Flanders v. Flanders, 516 So.2d 1090 (Fla. 5th DCA 1987), the Former

Wife incorrectly argues that because a property settlement agreement is not subject to

modification, where former spouses engage in litigation over the interpretation of a

non-modifiable property settlement agreement, Florida Statutes § 61 does not apply and

attorney's fees may not be awarded. If at 1092. Fla. Stat. § 61 (2010).

In this case, the parties were not arguing over the "interpretation" of their

Property Settlement Agreement. Rather, in violation of the trial court's Final Judgment

and the parties' Property Settlement Agreement, the Former Wife had surreptitiously

sold the parties' business, Plant Care, without revealing the sale of the business to the

Former Husband. The Former Wife also misappropriated all of the proceeds from the

sale of Plant Care. Accordingly, the Former Husband was merely moving to enforce

the terms of the parties' Property Settlement Agreement and recover his fifty percent

(50%) share of the sale proceeds.

Moreover, subsequent to the District Court of Appeal Fifth District's decision in

Flanders, the Fifth District issued its decision in Encarnacion v. Encarnacion, 877

So.2d 960 (Fla. 5th DCA 2004). In Encarnacion, the District Court of Appeal Fifth

District reiterated its position that at the time a judgment of dissolution of marriage

becomes final, the parties' property rights, if determined by the judgment, are fixed as a

E matter of law. However, the Fifth District went on to state that, "[a] court may clarify

what is implicit in a final judgment, and enforce the judgment. But after a fmal

judgment is rendered, a trial court lacks jurisdiction under chapter 61 to determine

property rights, unless the final judgment reserves jurisdiction for a specific purpose

regarding identified property." Il at 963.

Here, pursuant to the terms of the parties' Property Settlement Agreement, the

parties were each to receive one half (1/2) of the proceeds from the sale of the parties'

company, Plant Care, which business the parties had established in 1981. The parties'

Final Judgment clearly sets forth in paragraph 2 that, "[t]he terms of the Property

Settlement Agreement will be incorporated herein by reference." Further, paragraph 3

of the parties' Final Judgment specifically provides that, "[t]he Court will retain

jurisdiction to enforce this order".

Accordingly, in this case, the trial court had jurisdiction under chapter 61 to

determine the rights of the parties, and the parties' Final Judgment specifically reserved

jurisdiction for the purpose of enforcing said order, which provided for the Former

Husband to receive one half (1/2) of the proceeds of the sale of Plant Care. Further, the

Former Husband specifically brought his action under Florida Statutes §61 and not

Florida Statutes §86, and was thus entitled to an award of attorney's fees as properly

pled.

As such, the Former Wife's reliance on Flanders is misplaced, as Encarnacion,

which succeeds the District Court of Appeal Fifth District's decision in Flanders,

clearly provides the trial court with the authority not only under chapter 61 to enforce

the parties' Final Judgment, but to award attorney's fees to the Former Husband,

consistent with Florida Statutes Section 61.16(1) (The court may from time to time,

after considering the financial resources of both parties, order a party to pay a

reasonable amount for attorney's fees, suit money, and the cost to the other party of

maintaining or defending any proceeding under this chapter, including enforcement and

modification proceedings and appeals. Fla. Stat. § 61.16 (2010)).

In this case, the trial court not only retained jurisdiction to enforce the terms of

the parties' Property Settlement Agreement to ensure that the Former Husband received

the equitable distribution of the marital estate to which he was entitled, but as this

matter was governed by Florida Statutes § 61, the trial court also had the authority to

award attorney's fees and costs on behalf of the Former Husband and under the

reasoning of Smilack v. Smilack, 858 So.2d 1072 (Fla. 5th DCA 2003), could even

modify the terms of the parties' Final Judgment to make such an award. If at 1075. In

fact, even the District Court of Appeal Fifth District in Flanders in 1987 understood

that Florida Statutes Section 61.16, providing for an award of attorney's fees, might be

held to be applicable to the enforcement of a property settlement agreement. Flanders,

516 So.2d at 1092.

The Former Wife also improperly maintains that the Former Husband's Verified

Emergency Supplemental Petition for an Ex-Parte Temporary Injunction Preserving the

Status Quo and Freezing Sales Proceeds, for an Order Compelling Payment, Contempt,

and Other Relief was a "declaratory action" and that the Former Husband was not

entitled to an award of attorney's fees and costs from the Former Wife.

Here, the Former Husband was not in any doubt about his right to an equitable

distribution of the sale proceeds of Plant Care, consistent with terms of the parties'

Property Settlement Agreement, nor was there any question as to the construction or

validity of the parties' Property Settlement Agreement. Further, the Former Husband

never sought any relief consistent with Florida Statutes Section 86.

To this end, the District Court of Appeal Second District in X Corp. v. Y Person,

622 So.2d 1098 (Fla. 2d DCA 1993) concluded that to state a cause of action for

declaratory relief, a party seeking a declaration must show that they are in doubt as to

the existence or nonexistence of some right, status, immunity, power or privilege and

that they are entitled to have such doubt removed. If at 1101.

Here, the Former Husband was not seeking to obtain a declaration of rights,

status or other equitable or legal relations under the parties' Property Settlement

Agreement. Additionally, the Former Husband was not in any doubt as to the existence

of his right to fifty percent (50%) of the proceeds from the sale of Plant Care.

Accordingly, the Former Husband was not seeking declaratory relief from the Family

Court.

In this case, the Former Husband's rights were violated, as on August 29, 2008, in

violation of the trial court's Final Judgment and the parties' Property Settlement

Agreement, the Former Wife surreptitiously sold the parties' business, Plant Care,

without revealing the sale of the business to the Former Husband. The Former Wife

also misappropriated all of the proceeds from the sale of Plant Care. Further, other

legal relief was immediately available to the Former Husband in the form of a motion

for enforcement before the Family Court, which the Former Husband filed and brought

before the Family Court for resolution, consistent with the trial court's reservation of

jurisdiction in the parties' Final Judgment, as well as the relief afforded to the Former

Husband consistent with Florida Statutes Section 61.

In the instant proceeding, the Former Husband's enforcement action was brought

in the Family Court and was resolved by the Family Court. Accordingly, the Former

Husband's request for an award of attorney's fees and costs was clearly governed by

Florida Statutes § 61.16 (2010). Even in those cases where actions have been brought

in other courts, where the action arose from a dissolution or post-dissolution

proceeding, the Appellate Courts of this State have repeatedly sustained awards of

attorney's fees under Florida Statutes Section 61. § 61 and § 61.16. See Kirkland v.

Kirkland, 253 So.2d 728 (Fla. 1971) (a party who seeks to enforce a final judgment of

dissolution of marriage is entitled to attorney's fees under Florida Statutes Section 61

where it is necessary for a party to either go into court or if a party is brought into court

for the purpose of securing or defending their financial rights under a dissolution

decree), Hirschenson v. Hirschenson, 996 So.2d 905 (Fla. 4th DCA 2008) (trial court

in which former wife filed post-dissolution motions to enforce alimony and child

support was authorized to award former wife attorney's fees for the services of her

bankruptcy counsel in securing and enforcing the alimony, child support, and other

expenses in bankruptcy proceedings against former husband consistent with Florida

Statutes Section 61.16), Fortner v. Fortner, 631 So.2d 327 (Fla. 2d DCA 1994) (the

right to attorney's fees under section 61.16 should not depend upon the courtroom in

which the twine is unraveled), and Kass v. Kass, 560 So.2d 293 (Fla. 4th DCA 1990)

, (companion lawsuits to the dissolution proceeding involved entities that were wholly

12

owned and controlled by the husband and although the issues were resolved in separate

proceedings, the trial court determined that they were so intertwined that the fees could

all be regarded as fees incurred under Florida Statutes Section 61).

In this case, the Respondent/Former Husband's Verified Emergency

Supplemental Petition for an Ex-Parte Temporary Injunction Preserving the Status Quo

and Freezing Sales Proceeds, for an Order Compelling Payment, Contempt, and Other

Relief was clearly an action under Florida Statutes Section 61 to enforce the unfulfilled

terms of the parties' Property Settlement Agreement and attendant Final Judgment. The

Former Husband's enforcement action was not a "declaratory action" as the District

Court of Appeal Third District correctly reasoned. As such, the trial court was not

barred from awarding the Former Husband attorney's fees and costs from the Former

Wife, as was erroneously set forth by the lower tribunal in its Order on Former

Husband's Motion for Rehearing.

Consequently, the Former Husband respectfully submits that the opinion of the

District Court of Appeal Third District in De Campos v. Ferrara, 90 So.3d 865 (Fla. 3d

DCA 2012) does not expressly or directly conflict with the opinion of the District Court

of Appeal Fifth District in Flanders v. Flanders, 516 So.2d 1090 (Fla. 5th DCA 1987)

or the opinion of this Honorable Court in Bane v. Bane, 775 So.2d 938 (Fla. 2000) and,

accordingly, this Honorable Court should not accept jurisdiction herein.

13

CONCLUSION

Based upon the foregoing argument and authority, the Former Husband

etfully submits that the opinion of the District Court of Appeal Third District in De

pos v. Ferrara, 90 So.3d 865 (Fla. 3d DCA 2012) does not expressly or directly

ict with the opinion of the District Court of Appeal Fifth District in Flanders v.

ders, 516 So.2d 1090 (Fla. 5th DCA 1987) or the opinion of this Honorable Court

zne v. Bane, 775 So.2d 938 (Fla. 2000) and, accordingly, this Honorable Court

ld not accept jurisdiction herein.

CERTIFICATE OF SERVICE

I HEREBY CERTIFY, that a true copy of the foregoing has been sent via E-

mail and United States First Class Mail to LYUBOV ZELDIS, ESQUIRE, Attorney for

the Appellant/Former Wife, 915 Middle River Drive, Suite 600, Fort Lauderdale,

Florida 33304, this 3 0 day ofNovember, 2012.

By:NANCY A. HA½fS, ESQUIREFlorida Bar No. 881635Nancy A. Hass, P.A.2100 East Hallandale Beach BoulevardSuite 200Hallandale Beach, Florida 33009E-mail: nahpa@nahpalaw.comTelephone (954) 889-0155Facsimile (954) 889-0154

CERTIFICATE OF COMPLIANCE WITH FILINGAND FONT REQUIREMENTS

I HEREBY CERTIFY, that the Appellee's Answer Brief on Jurisdiction has

been submitted to this Honorable Court via e-mail transmission and in Times New

Roman 14 point font in compliance with Rule 9.210(a)(2), Florida Rules of Appellate

Procedure.

By:NANCY A. HAS , ESQUIREFlorida Bar No. 881635