TERRENCE E. ROSENBERG, APPELLANT,
v.
JUDITH ROSENBERG (STEIN), APPELLEE
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In a post-dissolution dispute, the trial court held Terrence Rosenberg in contempt and ordered his incarceration for failing to make periodic payments under a property settlement agreement. The appellate court affirmed the striking of an untimely petition for rehearing and denial of a motion to vacate, but reversed the contempt conviction, holding that periodic payments settling property rights cannot be enforced through contempt but only through creditor remedies.
The trial court's contempt order and incarceration threat must be reversed. Periodic payments in settlement of property rights create a debtor-creditor relationship that cannot be enforced through contempt proceedings or imprisonment; only usual creditor remedies are available. The trial court may impose other appropriate sanctions to aid collection but not incarceration for debt.
[1] A petition for rehearing filed beyond the time prescribed by Rule 1.530(b) of the Florida Rules of Civil Procedure is untimely and may be stricken.
[2] A motion to vacate a written order is properly denied when the movant fails to demonstrate that the written order does not reflect the true rulings of the trial court.
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Join FLexlaw to unlock all legal intelligence“Where periodic payments are in settlement of property rights pursuant to a property settlement agreement, as in the instant case, the parties stand in the position of debtor and creditor.”
Establishes the foundational legal principle that property settlement payments create a debtor-creditor relationship, not a contempt-enforceable obligation.
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Join FLexlaw to unlock all legal intelligenceThe parties' marriage was dissolved in June 1980 with a final judgment including a property settlement agreement. Rosenberg failed to comply with the …
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PER CURIAM.
The marriage of the parties in this matter was dissolved by final judgment of dissolution in June of 1980. The final judgment included a property settlement agreement. The appellant failed to abide by the terms of the property settlement agreement and the final judgment. Motions to enforce compliance were filed and an order dated October 12, 1983 found the appellant in violation of same and directed his compliance. An untimely petition for rehearing was filed to this order on October 25, 1983. Rule 1.530(b) Florida Rules of Civil Procedure.
A subsequent motion to vacate was filed contending that the written order of the 12th did not reflect the true rulings of the trial court.
The trial court entered an order denying the motion to vacate and found the appellant in contempt, ordering him incarcerated if he did not comply within a certain time, for failure to make payments required under the property settlement agreement.1 The trial court also struck and denied the petition for rehearing.
We affirm the striking of the untimely petition for rehearing. See Grabarnick v. Florida Homeowners Association of North Broward, Inc. 419 So. 2d 1065 (Fla.1982); Feinberg v. Feinberg, 384 So. 2d 1304 (Fla. 4th DCA 1980); Rule 1.530(b) Fla.R.Civ.P. We also affirm the denial of the motion to vacate. Schwab & Co., Inc., v. Breezy Bay, Inc., 360 So. 2d 117 (Fla. 3d DCA 1978); Randle Eastern Ambulance Service, Inc. v. Vasta, 345 So. 2d 1084 (Fla. 3d DCA 1977).
However, we reverse the order holding the appellant in contempt and ordering his incarceration. Where periodic payments are in settlement of property rights pursuant to a property settlement agreement, as in the instant case, the parties stand in the position of debtor and creditor. See Howell v. Howell, 207 So. 2d 507 (Fla. 2d DCA 1968); Sedell v. Sedell, 100 So. 2d 639 (Fla. 1st DCA 1958).
Their rights under such circumstances cannot be enforced by contempt but only by the usual remedies available to a creditor against a debtor, as the courts may not imprison for failure to pay a debt. See Chapman v. Lamm, 388 So. 2d 1048 (Fla. 3d DCA 1980), modified on other grounds 413 So. 2d 749 (Fla.1982); Carlin v. Carlin, 310 So. 2d 403 (Fla. 4th DCA 1975); Corbin v. Etheridge, 296 So. 2d 59 (Fla. 1st DCA 1974); Howell v. Howell, supra. This reversal is without prejudice to the trial court entering such other sanctions as may be necessary to aid the appellee in collecting that which the appellant agreed to pay.
Affirmed in part, reversed in part and remanded to the trial court for further proceedings.
. In this appeal the appellant is seeking to terminate the periodic payments on the basis that they are in fact alimony which terminate upon remarriage. However, the trial court clearly found that they were periodic payments in set-dement of property rights and therefore not terminable by a subsequent marriage of the appellee. See Vance v. Vance, 143 Fla. 513, 197 So. 198 (1940); Compare: Karch v. Karch, 445 So. 2d 1077 (Fla. 3d DCA 1984).
Cases With Similar Vibessemantic neighbors from the corpus
Citator
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Pipitone v. Pipitone, 23 So. 3d 131 (Fla. 2d DCA 2009)…h DCA 1990) (holding property division awards not enforceable by contempt, but only remedies are those available to creditors against debtors) (citing Underwood v. Underwood, 64 So. 2d 281 (Fla.1953); Howell, 207 So. 2d 507); Rosenberg v. Rosenberg, 452 So. 2d 620, 621 (Fla. 3d DCA 1984). Ordinarily, the trial court specifies whether lump sum alimony is for support or for equitable distribution. See Guida v. Guida, 870 So. 2d 222, 224 (Fla. 2d DCA 2004). Where, as here, the parties’ court-approved MSA does n…
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Hine v. Hine, 558 So. 2d 496 (Fla. 3d DCA 1990)…property settlement agreement incorporated into a final judgment of dissolution of marriage may not be enforced by contempt proceedings. Such provisions are enforceable only by remedies available to creditors against debtors. Rosenberg v. Rosenberg, 452 So. 2d 620 (Fla. 3d DCA 1984); McCombes v. McCombes, 440 So. 2d 683 (Fla. 1st DCA 1983); Carlin v. Carlin, 310 So. 2d 403 (Fla. 4th DCA 1975); Howell v. Howell, 207 So. 2d 507 (Fla. 2d DCA 1968); 25 Fla.Jur.2d Family Law § 383 (1981). Provisions for payment of…
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Rayburn Paulk v. Braxton, 562 So. 2d 699 (Fla. 1st DCA 1990)…eration since, by reducing the arrearage to judgment, the lower court eliminated incarceration as a means to enforce its orders. The two remedies are mutually exclusive, Lamm v. Chapman, 413 So. 2d 749, 753 (Fla.1982); Rosenberg v. [*701] Rosenberg, 452 So. 2d 620 (Fla. 3d DCA), dismissed, 458 So. 2d 273 (Fla.1984). Counsel for former wife admits that at the hearing she stipulated Paulk did not have the present ability to pay the purge amount. She argues this is irrelevant as the lower court was only enforci…
Authorities Cited (13 total)
- Schwab & Co., Inc. v. Breezy BAY, Inc., 360 So. 2d 117 (Fla. 3d DCA 1978)
- Maxine Florence Sedell (now Maxine Sedell White) v. Sedell, 100 So. 2d 639 (Fla. 1st DCA 1958)
- Vance v. Vance, 143 Fla. 513 (Fla. 1940)
- Lamm v. Chapman, 413 So. 2d 749 (Fla. 1982)
- Howell v. Howell, 207 So. 2d 507 (Fla. 2d DCA 1968)
- Chapman v. Lamm, 388 So. 2d 1048 (Fla. 3d DCA 1980)
- Karch v. Karch, 445 So. 2d 1077 (Fla. 3d DCA 1984)
- Randle E. Ambulance Serv., Inc. v. Vasta, 345 So. 2d 1084 (Fla. 3d DCA 1977)
- Carlin v. Stan Carlin, 310 So. 2d 403 (Fla. 4th DCA 1975)
- McLEMORE v. State, 296 So. 2d 59 (Fla. 1st DCA 1974)