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Transcription

1 CASE NO. 1THpW/*ja> "'" Fa., DISTRICT COURT OF APPEAL FOR THE STATE 'O&V^JtRIDA SECOND DISTRICT / CASE MO. 2D09^ (^ THE CIRCUIT COURT OF THE THIRTEENTH JUDICIAlr->GXRCUIT, FOR HILLBOROUGH COUNTY FLORIDA ^ CASE MO. 07-DR-Q15811 FLORIDA SUPREME COURT MIGUEL ANGEL ARIAS, Appellant, v. LAURA ANN ARIAS, Appellee. ON APPEAL FROM OPINION FROM THE DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT FILE FEBRUARY 10, 2010 AND MANDATE CONFIRM MARCH 23, BRIEF OF APPELLANT MIGUEL ANGEL ARIAS (PRO PER) SW 163rd Street Miami, Florida Date Mailed: April 9, 2010

2 TABLE OF CONTENTS Page I. Table of Contents 2 II. Table of Citations 3 III. Statement of Jurisdiction A. Appellate Court Jurisdiction 4 B. Florida Supreme Court Jurisdiction 4 C. Timeliness of Appeal 4 IV. Statement of the Case and the Facts. 5 V. Summary of Argument 9 A. Final Judgment Dissolution of Marriage Order 9 B. Financial Affidavit 9 VI. Argument 11 A. Final Judgment Dissolution of Marriage Order 11 B. Financial Affidavit 12 VII. Conclusion 14 VIII. Certificate of Service 15 EXH. A 16 Page 2

3 II. TABLE OF CITATIONS CASES Marshall v Marshall, 953 So2d 23 (Fla.App. 5 Dist.,2007) 8, 9,and 10 Driscoll v Driscoll, 915 So.2d 771 (Fla.App. 2 Dist.,2005) 1, and 2 Hoirup v Hoirup, 862 So.2d 780 (Fla.App. 2 Dist.,2003) 1, and 4 RULES/STATUTES Fla. R. App. P Florida Rules of Appellate Procedure Florida Rule (a)(2)(A)(iv) Florida Rule DISCRETIONARY PROCEEDINGS TO REVIEW DECISIONS OF DISTRICT COURTS OF APPEAL Florida Family Law Rules of Procedures Fla.R.Civ.P.Rule 1.540(b) Mistakes; Inadvertence; Excusable Neglect; Newly Discovered Evidence; Fraud; etc. 5, 7 Fla.R.Civ.P.Rule Equitable distribution of marital assets and liabilities. Fla.R.Civ.P.Rule Pretrial Procedure Fla.R.Civ.P.Rule Relief From Judgment, Decrees, or Orders 1, 4, 6, 7, 8, 9, 10 Page 3

4 III. STATEMENT OF JURISDICTION A. Appellate Court Jurisdiction The Appellate Court had jurisdiction over this action pursuant to Florida Rule of Appellate Procedure 9.110, 9.130, 9.140(b)(3), 9.145, 9.146, and Final Judgment was rendered on December 16, B. Supreme Court Jurisdiction The Supreme Court of Florida has jurisdiction under Florida Rule DISCRETIONARY PROCEEDINGS TO REVIEW DECISIONS OF DISTRICT COURTS OF APPEAL and Florida Rule (a)(2)(A)(iv). C. Timeliness of Appeal The District Court of Appeal for the State of Florida Second District's Opinion was filed February 10r Mandate to confirm order was file March 23, NOTICE TO INVOKE DISCRETIONARY JURISDICTION was filed April 1, The notice was timely pursuant to Florida Rule DISCRETIONARY PROCEEDINGS TO REVIEW DECISIONS OF DISTRICT COURTS OF APPEAL. Page 4

5 IV. STATEMENT OF THE CASE AND FACTS This case arises from an appeal to DISTRICT COURT OF APPEAL SECOND DISTRICT of the Final Judgment of the Dissolution of Marriage Laura Ann Arias, ("ex-wife" herein) and Miguel Angel Arias, ("ex-husband" herein). 1. Miguel Angel Arias and Laura Ann Arias were married to each other on September 1, 1973, in Succasunna N. J. 2. September 26, 2007 Mr. Arias (Appellant) was served with divorce paper. 3. Mediation was schedule and attended with no successful outcome. 4. Case Management Conference was schedule December 11, 2007 at 01:30PM. The Case Management Conference was ffanc^llad by Kimberly K. Fernandez - Circuit Court Judge. 5. October 29, 2007 Wife Motion for Temporary Relief. 6. February 29, 2008 hearing on wife motion for Temporary Relief: a. Wife shall have exclusive use of Marital Residence b. Wife shall get $ for food and gas, and use of the 2002 Honda Odyssey. c. Husband shall continue to pay all other bill. Have use of the 1997 Honda Accord. Page 5

6 d. Marital Home should be place on the market 14 days from the order. e. Miguel A. Arias (PRO-SE) requested the court to re schedule the Case Management Conference, and corrections to Wife's Financial Affidavit as listed below: i. Remove all expenses listed that husband is paying. Driscoll v. Driscoll 915 So.2d 771(Fla.App.2 Dist.,2005) ii. Update to include ex-wife 35 year old pension wife has with 'Pfizer Pharmaceutical'. Rule 1.540, Rule 1.540(b) Florida Rules ofcivil Procedures, and Rule , Florida Family Law Rules ofprocedure. iii. Submit Promissory note wife had husband signed while wife was executor to Mrs. Ford's Will (her mother) to borrow the money from our children inheritance to pay marital bill while Husband was unemployed. 7. May 30, 2008 Hearing on Enforcement to Amended Temporary Relief Order. a. Miguel A. Arias (PRO-SE) on Motion to Enforce Amended Temporary Relief Order of February 29, 2008 because Marital Home was not being listed for sale. Judge Kimberly Fernandez order house to be listed with wife's realtor, and realtor should have sole responsibility on determine the price of the home. Page 6

7 b. Miguel A. Arias (PRO-SE) requested for the 2nd time, the court to order ex-wife to include her pension in the Financial Affidavit. The Court suggested I subpoena the records. Mandatory disclosure... Rule , Florida Family Law Rides of Procedure, requires each party in dissolution ofmarriage to exchange certain information and documents, andfile a Family Law Financial Affidavit. Commentary 1995Adoption. This rule creates aprocedurefor automaticfinancial disclosure in family law cases. By requiringproduction at an early stage in the proceedings, it is hoped that the expense oflitigation will be minimized. See Dralus v. Dralus, 627 So. 2d505 (Flo. 2dDCA 1993); Wrona v. Wrona, 592 So. 2d694 (Flo. 2dDCA 1991); andkatz v. Katz, 505 So. 2d25 (Fla. 4th DCA 1987). 8. September 23, 2008 Motion for Contempt against Husband for not paying the mortgage. 9. October 3, 2008 Pretrial Hearing a. Mr. Arias answer contempt charges by submitting bill that was paid, not allowing mortgage to be paid. Husband advised the court the marital home was going through foreclosure proceedings. i. Miguel A. Arias (PRO-SE) objected (2nd time) to Wife's Financial Affidavit having expenses being paid by Husband. Driscollv. Driscoll915So.2d771(Fla.App.2 Dist.,2005) Page 7

8 10. December 16, 2008 Final Judgment of Dissolution of Marriage signed. 11. January 12, 2009 file NOTICE OF APPEAL 12. January 15, 2009 received Acknowledgement of New Case from the 2nd District Court of Appeal 13. March 9, 2009 file appeal with the 2nd District Court of Appeal 14. February 10, 2010 Opinion File by the 2nd District Court of Appeal which recognize that the final judgment fails to contain requisite finding supporting the equitable distribution and alimony determination. However, in the absence of a transcript or appropriate substitute, the Appellate Court affirmed the lower courts Final Judgment order. Page 8

9 V. SUMMARY OF ARQUMENT A. Final Judgments of Dissolution of Marriage Order: 1. The 2nd District Court of Appeal has reversed itself when it denied relief base on the unavailability of a transcript. In Hoirup v Hoirvp, 862 So.2d 780 (Fla.App. 2 Dist.,2003) where no transcript was available, the appellate court held that equitable distribution of marital assets was fundamentally erroneous on its face. Hoirup v Hoirup directly applies to number 9, of the Final Judgment. 2. Trial court should distribute marital assets and liabilities between the parties beginning with the premise that an equal distribution should occur; however, a trial court may make an unequal distribution of assets, provided the court supplies a specific finding of fact to justify its unequal distribution. (F.S.A Equitable distribution of marital assets and liabilities) (1). In reference to number 10. B. Financial Affidavit: 1. False Financial Affidavit, signed under penalties of perjury, is false testimony in a proceeding. When ex-wife intentionally excluded her pension from her Financial Affidavit and deny having knowledge of value on her 35 year old pension, she committed perjury. Page 9

10 2. Request the trial court order the corrections of ex-wife Financial Statement as it relates to ex-wife listing the expenses that ex-husband is paying for. Driscollv. Driscoll915So.2d 771(Fla.App.2Dist.,2005). The trial court refuse and the 2nd District Court of Appeal reverse itself on Driscoll v. Driscoll 915 So.2d 171(Fla.Rpp.2 Dist.,2005) by denying ex-husband relief on this issue. Page 10

11 VI. ARQOMENT A. Final Judgments of Dissolution of Marriage Order: 1. The 2nd District Court of Appeal has reversed itself when it denied relief base on the unavailability of a transcript. In Hoirup v Hoirup, 862 So.2d 780 (Fla.App. 2 Dist.,2003) where no transcript was available, the appellate court held that equitable distribution of marital assets was fundamentally erroneous on its face. Hoirup v Hoirup directly applies to number 9, of the Final Judgment, were the trial judge awarded ex-husband asset that is not in existence (Property is under Foreclosure Proceedings). Because there is no evidence of the likelihood of any profit to materialize pursuant to the collection action, the trial court's Final Judgment is Fundamentally erroneous on its face. 2. Trial court should distribute marital assets and liabilities between the parties beginning with the premise that an equal distribution should occur; however, a trial court may make an unequal distribution of assets, provided the court supplies a specific finding of fact to justify its unequal distribution. (F.S.A Equitable distribution of marital assets and liabilities) (1). In reference to nuaber 10, ex-wife pension is consider a marital asset and without specific finding of fact to Page 11

12 justify trial court decision to allow ex-wife to keep her 35 year old pension, makes the trial court's Final Judgment Fundamentally erroneous on its face and relief should be granted. B. Financial Affidavit: Mandatory disclosure... Rule , Florida Family Law Rules ofprocedure, requires each party in dissolution ofmarriage to exchange certain information and documents, andfile a Family Law Financial Affidavit. Commentary 1995 Adoption. This rule creates a procedurefar automaticfinancial disclosure in family law cases. By requiringproduction at an early stage in the proceedings, it is hoped that the expense oflitigation will be minimized See Dralus v. Dralus, 627 So. 2d505 (Fla. 2dDCA 1993); Wrona v. Wrona, 592 So. 2d694 (Fla. 2dDCA 1991); andkatzv. Katz, 505 So. 2d 25 (Fla. 4th DCA 1987). The Supreme Court has acknowledged the importance by the changes above, and removing the one year limitation on the submission of Fraudulent Financial Affidavit. 1. False Financial Affidavit, signed under penalties of perjury, is false testimony in a proceeding. When ex-wife excluded her pension from her Financial Affidavit and deny having knowledge of value on her 35 year old pension, she committed perjury as exhibit XA' shows a copy of an envelope from %P xzbx Pharmaceutical' to ex-wife requesting action on her pension. Rule 1.540, Rule 1.540(b) Florida Rules of Civil Procedures, Page 12

13 and Rule , Florida Family Law Rules of Procedure. The trial court refusal to enforce the Financial Affidavit requirements nullifies the State Legislature and the Supreme Courts intentions. 2. During the proceeding, Miguel Angel Arias(Pro se) continuously requested the corrections of ex-wife Financial Statement as it relates to ex-wife listing expenses that ex-husband is paying for. Driscollv. Driscoll915So.2d771(Fla.App.2Dist.,2005). The trial court refuse to order a corrected Financial Statement and the 2nd District Court of Appeal reverse itself on Driscoll v. Driscoll 915 So.2d 771(Fla.App.2 Dist.,2005) by denying exhusband relief on this issue. Page 13

14 VII. CONCLUSION Based on the forgoing reasons and authorities of law, Mr. Arias respectfully asks this Honorable Court to: 1. Mr. Arias would expect Relief From Judgment, Decrees, Orders, or that which the court deemed appropriate. 2. Order ex-wife to submit the value of her pension as of September 26, 2007 when the papers for divorce were served. Cash out the pension and distribute it equally between the parties. 3. Adjust the alimony as to ensure that neither spouse passes automatically from misfortune to prosperity, or from prosperity to misfortune, and, in viewing totality of circumstances, one spouse should not be "shortchanged." Respectfully submitted. d 64fi y Miguel A. Arias SW 163rd Street Miami, Florida Tel. (813) Page 14

15 VIII. CERTIFICATE OF SERVICE I certify that a copy of this document was mailed to the person listed below on April 9,2010. Florida Supreme Court 500 South Duval Street Tallahassee, Florida Clerk of the Circuit Court 800 East Twiggs Street Suite 530 Tampa, Florida Brent A. Rose Attorney for Ex-wife 410 Ware Boulevard, Room 401 Tampa, Florida Miguel Angel Arias (PRO-SE) CERTIFICATE OF COMPLIENCE This brief is set in a Times New Roman 14-points font or Courier New 12-point font. Miguel Angel Arias (PRO-SE) Page 15

16 «H A LAURA A ARIAS MURIFIELO DRIVE ODESSA, FL Important Information about Savings and Pension ACTION MAY BE REQUIRED NOW for changes effective January 1, 2008

17 I understand that I am swearing or affirming under oath to the truthfulness of the claims made above and that the punishment for knowingly making a false statement includes fines and/or imprisonment Dated: *- 2nm STATE OF FLORIDA COUNTY OF Signature of Party: y Printed Name: Miguel pe Arias Address SW163* Street City, State, Zip: Miami Florida Telephone Number: Fax Number: Sworn to or affirmed and signed before me on MOTMTV NOTARY PUBLiebr DEPUTY CLERK [Print, type, or stamp commissioned name of notary or clerk.] Page 17