01-1316 JAHNKE V. JAHNKE

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State: Florida

Court: Florida Third District Court

Docket No: 01-1316 JAHNKE V. JAHNKE

Case Date: 12/26/2001

Preview:NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION AND, IF FILED, DISPOSED OF.

IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2001

WALTER M. JAHNKE, Appellant, vs. DEBRA A. JAHNKE, Appellee.

** ** ** ** ** CASE NOS. 3D01-1316 3D01-108 3D01-738

LOWER TRIBUNAL NO. 94-19264

Opinion filed December 26, 2001. An Appeal from the Circuit Court for Dade County, Judith L. Kreeger, Judge. Judith H. Hayes, for appellant. Murphy & O'Brien and William F. Murphy, III, for appellee.

Before JORGENSON, FLETCHER, and RAMIREZ, JJ.

PER CURIAM.

In these consolidated appeals, the former husband appeals from a

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post-dissolution

final

judgment

on

financial

issues,

an

order

of

distribution concerning a management savings plan, and an amended order of distribution in the form of a qualified domestic relations order (QDRO) distributing the savings plan. We affirm in part and reverse in part.

The parties were married in November 1977. During the marriage the former husband was employed with BellSouth and maintained a pension plan and management savings plan. Prior to the marriage, the former husband purchased the home in which the parties lived until the date of their separation. separated in 1993. The former husband filed a petition to dissolve the marriage in 1994. As a result of mediation, the parties entered into a settlement agreement in 1996 in which they agreed, among other things, that the former husband would pay the former wife The parties

$56,000 in the form of BellSouth stock. The court subsequently entered a final judgment of dissolution of marriage on February 14, 1996, incorporating the settlement agreement. The former wife then filed a petition, and a second amended petition, to set aside the final judgment due to the former husband's failure to disclose the existence of his BellSouth Management Savings Plan having a balance of $73,773.47. The

trial court granted the former wife's second amended petition to

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set aside the judgment and found that the settlement included in the original final judgment had been reached under fraud, deceit and misrepresentation. An appeal followed and this court

affirmed. See Jahnke v. Jahnke, 730 So. 2d 688 (Fla. 3d DCA 1999). Thereafter, a hearing was held and the trial court entered a "Final Judgment on Financial Issues." The trial court

established the value of the parties' assets as of the date of the final hearing in 2000. The trial court also awarded alimony to the former wife and determined that she was entitled to attorney's credited fees the from the former husband. the The trial he court had

former

husband

with

$80,894.87

previously paid to the former wife pursuant to the settlement agreement. The trial court also awarded the former wife 47% of the enhanced value of the home that was purchased by the former husband before the marriage, one-half of the pension plan, and one-half of the management savings plan. The former wife was

awarded $1,500 per month in permanent periodic alimony for the twenty-three months from the parties' separation to the date of the former wife's remarriage. The former husband appeals from this final judgment in case number 01-108. The former wife then filed a petition seeking immediate distribution of the portion of the management savings plan

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awarded to her by the final judgment on financial issues. The trial court granted the petition and entered an order of

distribution. The former husband appeals from that order in case number 01-738. Because the order of distribution did not

qualify as a QDRO, the trial court entered an amended order of distribution. The husband appeals from that order in case number 01-1316.
The former husband raises numerous issues; we address only those which merit discussion. I The former husband first argues that the trial court erred in awarding relief not requested in the former wife's petition to set aside a judgment based on fraud, deceit or misrepresentation. We disagree. "When a court vacates a judgment pursuant to a rule 1.540 motion, the effect of that ruling is to return the case and the parties to the same position that they were in before the court entered the judgment." Bane v. Bane, 775 So. 2d 938, 941 (Fla. 2000). A rule 1.540 motion is a motion filed in the underlying proceeding. Id. The part of

the final judgment pertaining to financial issues became void when the court set it aside. We agree with the former husband that a court cannot award relief that was not requested in the pleadings. See Hines v. Hines, 494 So. 2d 297 (Fla. 3d DCA 1986); Hernandez v. Hernandez, 444 So. 2d 35 (Fla. 3d DCA 1984); McDonald v. McDonald, 732 So. 2d 505 (Fla. 4th DCA 1999). However, the former wife's rule 1.540 motion was

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not a "pleading." See Fla. R. Civ. P. 1.110. The only relevant pleading is the former wife's counterpetition for dissolution of marriage, which she filed in 1994. In her counterpetition, the former wife requested distribution of all the items included in the final judgment on review, except the management savings plan, which was the basis for the wife's petition to set aside the original final judgment. Therefore, the former wife had specifically sought the relief granted.

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II The former husband next contends that the trial court erred in valuing the assets as of the 2000 hearing, rather than the date of dissolution. The trial court determined that the former husband caused the delay in the distribution of marital assets through his deceit, which warranted valuation of the assets as of the date of the 2000 hearing, rather than the 1996 settlement. Although assets should not, ordinarily, be valued as of a post-dissolution date because the

subsequent change in the property's value due to nonmarital labor or efforts cannot be distributed, see Claughton v. Claughton, 625 So. 2d 853, 855 (Fla. 3d DCA 1993), we find no abuse of discretion in the trial court's decision to choose the latter date. See

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