03-0848 ROBLES V. ROBLES

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State: Florida

Court: Florida Third District Court

Docket No: 03-0848 ROBLES V. ROBLES

Case Date: 12/03/2003

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IN THE DISTRICT COURT OF APPEAL OF FLORIDA THIRD DISTRICT JULY TERM, A.D. 2003

LOUIS STEVEN ROBLES, Appellant, vs. RUTH ANN ROBLES, Appellee.

** ** ** ** CASE NO. 3D03-848 LOWER TRIBUNAL NO. 99-11350 **

Opinion filed December 3, 2003. An Appeal from the Circuit Court for Dade County, Judith Kreeger, Judge. Greenberg Traurig, P.A., and Elliot H. Scherker, Alan T. Dimond and Elliot B. Kula, for appellant. Leinoff & Lemos; Cynthia L. Greene, for appellee. Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.

SCHWARTZ, Chief Judge. The former husband appeals from an order impressing an equitable lien on his homestead for past due alimony payments owed his former wife. We reverse.

In a final judgment of dissolution which incorporated a

financial

settlement

agreement

between

the

parties,

their

tangible assets, worth several million dollars, were equitably distributed between the parties, with the husband awarded the marital home, where he continued to reside after the

dissolution.

Among other things, the husband was also ordered

to make large monthly rehabilitative alimony payments--to the melody1 of $50,000 a month for eighty-five months. Although he

did so for a short time thereafter, he soon became financially unable to continue because of the lucrative law practice.2 demise of his previously

In this post-judgment proceeding, the

former wife sought and obtained an "equitable lien" on the home for the unpaid amounts. This was error.

It is a constitutional given that homestead property may not ordinarily be subjected to the imposition of a lien of this kind. See Article X, Section 4, Florida Constitution ("There

shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, . . . the following property owned by a natural person: (1) a

homestead . . . ."). unless, as in

This is true even as to unpaid alimony

such cases as Radin v. Radin, 593 So. 2d 1231

1

The amounts involved seem to call for a more serious word than "tune."
2

See The Florida 2003)(table).

Bar

v.

Robles, 2

846

So.

2d

1150

(Fla.

(Fla. 3d DCA 1992), review denied, 605 So. 2d 1265 (Fla. 1992) and Gepfrich v. Gepfrich, 582 So. 2d 743 (Fla. 4th DCA 1991), the payor is shown to have been guilty of affirmative fraudulent or reprehensible conduct which improperly interfered with the spouse's ability to recover the award. See Pegram v. Pegram,

821 So. 2d 1264 (Fla. 2d DCA 2002); Dyer v. Beverly & Tittle, P.A., 777 So. 2d 1055 (Fla. 4th DCA 2001), review denied, 796 So. 2d 536 (Fla. 2001); Partridge v. Partridge, 790 So. 2d 1280 (Fla. 4th DCA 2001); Smith v. Smith, 761 So. 2d 370 (Fla. 5th DCA 2000). See also Callava v. Feinberg, ___ So. 2d ___ (Fla.

3d DCA Case no. 3D02-1206, opinion filed, Oct. 15, 2003)[28 FLW D2361](no lien on wife's homestead for attorney's fees owed her own lawyer). No such showing was made in this case. Robles simply lost

his previous financial ability to make the agreed payments from his non-exempt resources. While he apparently transferred

property to a personal trust entity in Colorado, the nominal transfer had no effect upon the wife's ability to recover those assets; indeed, as we are told, she actually did so, reducing the outstanding alimony obligation to that extent. Thus, Robles

committed no act which adversely affected whatever rights to recover her alimony payments his ex-wife possessed at the time of the dissolution. Compare Radin, 593 So. 2d at 1231

3

(equitable lien affirmed where husband engaged in pattern of egregious conduct, had been found in contempt multiple times and would only pay alimony when subject to incarceration) and

Gepfrich, 582 So. 2d at 743 (court ordered sale of husband's homestead property permitted where husband purchased home

subsequent to dissolution, lived with and supported girlfriend). Hence, the order on review cannot be permitted to stand. See

Pegram, 821 So. 2d at 1264 (equitable lien for past due alimony and attorney's fees not available as to real property owned by former husband); Dyer, 777 So. 2d at 1055 (no forced sale of homestead property without evidence of fraudulent or egregious conduct); Partridge, 790 So. 2d at 1280 (failure to demonstrate egregious, fraudulent, or reprehensible conduct precludes

foreclosure of equitable lien); Smith, 761 So. 2d at 370 (sale of homestead to enforce equitable lien error absent evidence that former husband's conduct was egregious, fraudulent, or reprehensible).3 For these reasons, the order under review is reversed with

3

As Article X, Section 4, specifically provides, it applies alike to invalidate both a "forced sale," or, as here, the simple imposition of a "lien" on homestead property. See Demura v. County of Volusia, 618 So. 2d 754 (Fla. 5th DCA 1993)(lien against homestead invalid whether or not forced sale is involved); Cannon v. Cannon, 254 B.R. 773 (Bankr. S.D. Fla. 2000)(same); Prieto v. Eastern Nat. Bank, 719 So. 2d 1264 (Fla. 3d DCA 1998)(same); Miskin v. City of Fort Lauderdale, 661 So. 2d 415 (Fla. 4th DCA 1995)(same). 4

directions to vacate the lien. Reversed.

5

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