Haritos v. Haritos

193 So.3d 1050

Sergio HARITOS, Appellant,

v.Theodora HARITOS n/k/a Theodora Kampouraki, Appellee.

No. 2D15–2456.

District Court of Appeal of Florida, Second District.

June 15, 2016.

O. George Bamis and Nancy S. Paikoff of Macfarlane Ferguson & McMullen, Clearwater, for Appellant.

Steven J. Glaros of Steven J. Glaros and Associates, Tampa, for Appellee.

MORRIS, Judge.

Sergio Haritos, the former husband, appeals a final judgment denying his petition for modification of final judgment of dissolution and an order denying his motion to modify temporary support order. Because a final judgment was never entered disposing of the financial aspects of the parties' dissolution, we reverse the trial court's orders and remand for further proceedings.

I. Background

The parties married in 1998. They have one child together, born in 2001. The former wife, Theodora Haritos, filed a petition for dissolution in October 2009. A temporary support order was entered requiring the former husband to pay $300 per week to the former wife. The order did not designate the support as child support or alimony. In June 2013, the general magistrate entered a report and recommendation dissolving the marriage but reserving jurisdiction “to address all issues other than and in addition to dissolution of marriage.” The report and recommendation stated that no equitable distribution or child-support issues would be addressed at the time because the proceeding was “bifurcated to address only dissolution of marriage.” The trial court adopted the report and recommendation of the general magistrate in a final judgment entered the same day.

In February 2014, the former husband filed a pro se petition to modify child support. A hearing was held before a child support hearing officer on October 1, 2014, and the hearing officer entered a report that same day recommending denying the former husband's petition. The trial court approved the hearing officer's report and recommendation. On October 24, 2014, the former husband, through counsel, filed another petition for modification of final judgment of dissolution of marriage, seeking to modify the support he pays to the former wife. On May 1, 2015, he also filed a motion to modify temporary support order.

A hearing was held before a hearing officer on May 6, 2015. The hearing officer recommended that the former husband's petition for modification be denied because the former husband had not proven a substantial change of circumstances from the final judgment. The trial court approved and adopted the hearing officer's findings in a final judgment on May 7, 2015. That same day, the trial court denied as moot the former husband's motion to modify temporary support. The former husband appeals both orders.¹

II. Analysis

The former husband argues on appeal that the trial court erred in concluding that a final judgment had been entered in the parties' initial dissolution proceeding. He contends that the final judgment of dissolution entered in June 2013 was not a final order on the issues of equitable distribution, child support, and alimony and that he was entitled to a final hearing on those issues. The former husband also argues that the hearing officer and the trial court did not have jurisdiction to modify a final judgment of child support because no final judgment had ever been entered.

The June 2013 final judgment of dissolution was a partial final judgment insofar as the marital status of the parties was concerned. See Galbut v. Garfinkl, 340 So.2d 470, 473 (Fla.1976) ; Bland v. Bland, 971 So.2d 210, 212 (Fla. 5th DCA 2007) ; Shepardson v. Shepardson, 820 So.2d 360, 361 (Fla. 1st DCA 2002). But the judgment was not final as to other issues, such as equitable distribution and child support, which the trial court clearly intended to determine at a later date. See generally Claughton v. Claughton, 393 So.2d 1061, 1062 (Fla.1980) (recognizing that trial court has authority to bifurcate dissolution proceedings by granting “final dissolution with a reservation of jurisdiction to subsequently determine property, custody, and support issues,” but cautioning that such a practice “can cause multiple legal and procedural problems which result in delay and additional expense to the litigants”). The former husband was entitled to a final determination on those other issues.

The former wife argues that the former husband could have appealed the final judgment entered in June 2013, suggesting that the temporary support order was merged into the final judgment and that he could have challenged the temporary support order on appeal of that judgment. This doctrine of merger was discussed by the hearing officer at the October 2014 hearing:

That final judgment incorporated the temporary relief orders. And as far as I'm concerned, by incorporating them, it made it as part of a final judgment.

It says, jurisdiction to reserve to address [sic] all issues, which means simply they can readdress it, but the temporary relief orders in effect at the time of this hearing shall continue until further order of this court and are not extinguished by this final judgment.

It could be argued that they're still temporary orders but they were incorporated into a final judgment. As far as I'm concerned, they're a final judgment.

After the hearing, the hearing officer entered an order finding that the June 2013 final judgment had incorporated the temporary support order. At the second hearing before the same hearing officer in May 2015, the hearing officer again indicated his belief that the temporary order merged into the final judgment.

But the doctrine of merger does not apply to the June 2013 final judgment dissolving the marriage. The judgment stated that it was only dissolving the marriage and was reserving jurisdiction on all other issues, and it specifically stated that the “[t]emporary relief orders in effect ... shall continue until further order of this Court and are not extinguished by this [f]inal [j]udgment.” Therefore, the temporary support order continued and was not merged into the final judgment. See D'Angelo v. D'Angelo, 570 So.2d 1094, 1094–95 (Fla. 4th DCA 1990) (holding that temporary relief order did not merge into final judgment where final judgment specifically stated that temporary relief order will continue and trial court reserved jurisdiction to enforce temporary relief order).

The hearing officer also found that by going forward on his petition to modify at the May 2015 hearing, the former husband waived any argument that the June 2013 judgment was not final as to the support issues.² And the former wife argues that by filing his petitions to modify, the former husband agreed that the June 2013 judgment was final as to support.

The former husband did not waive his right to a final hearing on the support issues by filing his two petitions for modification. The trial court's subject matter jurisdiction to rule on the issues of child support and alimony is set forth in sections 61.13 and 61.14, Florida Statutes (2010–2014). These statutes provide when final support orders may be modified. See §§ 61.13(1)(a)(2), .14(1)(a); see also Overbey v. Overbey, 698 So.2d 811, 813 (Fla.1997) (“Generally, under [sections 61.13 and 61.14 ], a fundamental prerequisite to bringing an action to modify child support payments is a showing of substantial change of circumstances.”); Kuttas v. Ritter, 879 So.2d 3, 5 (Fla. 2d DCA 2004). The statutes also provide when temporary support orders may be modified: “A court may, upon good cause shown, and without a showing of a substantial change of circumstances, modify, vacate, or set aside a temporary...