Alvarez v. Jimenez

337 So.3d 117

Juan M. ALVAREZ, Appellant,

v.Lina Paola JIMENEZ, Appellee.

Nos. 3D20-610

3D20-1038

District Court of Appeal of Florida, Third District.

Opinion filed December 1, 2021

Eaton & Wolk, PL, and Douglas F. Eaton, Miami, for appellant.

Jeffrey Law, PA, and Robert Stone Jeffrey, Vero Beach; The Padron Law Group, PLLC, and Luis Padron, for appellee.

Before EMAS, LINDSEY and MILLER, JJ.

EMAS, J.

These consolidated appeals arise out of a dissolution of marriage proceeding between Juan Alvarez (the Father) and Lina Paola Jimenez (the Mother). Two children were born of the marriage (a son born in 2012 and a daughter born in 2014). The Father filed a petition for dissolution in July 2015, averring that the parties have lived in Florida for at least six months before the date of the petition. The affidavits attached to the petition (filed pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act or UCCJEA), also indicated where each of the children had lived during the relevant time periods. When the Mother did not respond to the petition, a default was entered, and a default final judgment of dissolution was rendered on January 4, 2016. Regarding the two minor children, the final judgment, provided, inter alia, that Florida was the habitual residence of the children and that the Mother wrongfully retained the children in Colombia. The final judgment also granted the Father sole parental responsibility, with supervised timesharing by the Mother to be provided by further court order upon return of the children to the Father in Florida.

Thereafter, the Mother filed a motion to vacate those portions of the final judgment containing custody and child-related determinations involving the parties' two minor children. After conducting a two-day evidentiary hearing, the trial court granted the Mother's motion to vacate. By separate order, the trial court awarded $180,400.72 in attorney's fees to the Mother as the prevailing party, pursuant to section 61.535, Florida Statutes (2020) (providing for prevailing party attorney's fees where a party seeks enforcement of a foreign custody decree). The Father appeals the order granting the Mother's motion to vacate, as well as the separate order awarding attorney's fees. For the reasons noted below, we affirm the order vacating the final judgment, but reverse the order awarding the Mother attorney's fees under section 61.535.

As to the first order, the trial court granted the Mother's motion and vacated that portion of the final judgment relating to "any and all child custody determinations over the parties' two minor children and any child-related rulings over same" upon a determination that Colombia, not Florida, was the home state of the minor children during the relevant time periods, and that the trial court therefore lacked subject-matter jurisdiction to make an initial child custody determination under section 61.514, Florida Statutes (2015).¹

Upon our review, we find no error in the trial court's determination, see Martinez v. Lebron, 284 So. 3d 1146, 1149 (Fla. 5th DCA 2019) (reviewing for competent substantial evidence the trial court's factual determination of the child's "home state" under section 61.514, Florida Statutes ); Holub v. Holub, 54 So. 3d 585, 587 (Fla. 1st DCA 2011) (reviewing for competent substantial evidence the trial court's application of section 61.514, Florida Statutes to the facts presented), and reject the Father's contention that the trial court erred in failing to apply the doctrine of judicial estoppel. See Golden Cape of Fla., Inc. v. Ospina, 324 So. 3d 558, 559 (Fla. 3d DCA 2021) (observing "it is axiomatic that subject matter jurisdiction cannot be conferred by estoppel"); Sayles v. Nationstar Mortg., LLC, 268 So. 3d 723, 726 n. 1 (Fla. 4th DCA 2018) (holding: "A judicial estoppel claim is subject to a mixed standard of review: [t]o the extent the trial court's order is based on factual findings, [the appellate court] will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review") (quotation omitted). The Father neither established the requisite elements for judicial estoppel, see Blumberg v. USAA Cas. Ins. Co., 790 So. 2d 1061, 1066 (Fla. 2001) (holding: "In order to work an estoppel, the position assumed in the former trial must have been successfully maintained. In proceedings terminating in a judgment, the positions must be clearly inconsistent, the parties must be the same and the same questions must be involved. So, the party claiming the estoppel must have been misled and have changed his position; and an estoppel is not raised by conduct of one party to a suit, unless by reason thereof the other party has been so placed as to make it to act in reliance upon it unjust to him to allow that first party to subsequently change his position. There can be no estoppel where both parties are equally in possession of all the facts pertaining to the matter relied on as an estoppel; where the conduct relied on to create the estoppel was caused by the act of the party claiming the estoppel, or where the positions taken involved solely a question of law") (quotation omitted), nor—assuming all such elements were established—demonstrated the trial court abused its discretion in declining to apply the doctrine, see Grau v. Provident Life & Acc. Ins. Co., 899 So. 2d 396, 401 (Fla. 4th DCA 2005) ("[T]he doctrine of judicial estoppel does not elevate mere prior inconsistent statements into a case busting equitable defense.")

However, we reverse the order awarding attorney's fees, which we review de novo. See Spano v. Bruce, 62 So. 3d 2, 6 (Fla. 3d DCA 2011) (explaining that, generally, an "abuse of discretion standard governs the review of an award of attorney's fees. Where entitlement to attorney's fees depends upon the interpretation of a statute, however, the standard of review is de novo") (citations omitted). The Mother was not entitled to an award of attorney's fees under section 61.535 because her motion sought to vacate a final judgment, not to enforce a foreign custody decree under the UCCJEA.² See Nagl v. Navarro, 187 So. 3d 359, 361 (Fla. 4th DCA 2016) (explaining that section 61.535 "applies where a party seeks enforcement of a custody decree from another state"). At most, the latter is an indirect consequence of the trial court's order.

However, and as the Father properly concedes, the Mother may be entitled to an award of attorney's fees under section 61.16, Florida Statutes (2021). While both statutes authorize the award of attorney's fees, they each serve different purposes and require consideration of different factors. As already indicated, section 61.535 authorizes an award of fees to a prevailing party in an enforcement proceeding under the UCCJEA. By contrast, section 61.16 is not a prevailing party statute. Instead, its purpose is to "level the playing field in family-law proceedings, ensuring both parties have an equal ability to obtain competent legal counsel." Martin v. Martin, 959 So. 2d 803, 805 (Fla. 1st DCA 2007). In fulfilling that purpose, the trial court "shall primarily consider the relative financial resources of the parties." See section 61.16(1). See also Rosen v. Rosen, 696 So. 2d 697, 699 (Fla. 1997) (reaffirming that "[t]he purpose of this section is to ensure that both parties will have a similar ability to obtain competent legal counsel"); Standard Guar. Ins. Co. v. Quanstrom, 555 So. 2d 828, 835 (Fla.1990) (noting that section 61.16 "requires a judge to consider the needs of the party seeking a fee and the financial resources of the parties to assure that both parties receive adequate representation. A significant purpose of this fee-authorizing statute is to assure that one party is not limited in the type of representation he or she...