SARAH SAARIO

v.

PATRICK TILLER, TILLER AND SHEETS, LLC, TS ACCOUNTING BRIDGE, LLC AND RUSH COMMERCIAL CLEANING, LLC

IN THE DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FIFTH DISTRICT

NOT FINAL UNTIL TIME EXPIRES TO

FILE MOTION FOR REHEARING AND

DISPOSITION THEREOF IF FILED

SARAH SAARIO, Appellant, v. Case No. 5D20-230 LT Case No. 2017-DR-003623 PATRICK TILLER, TILLER AND SHEETS,

LLC, TS ACCOUNTING BRIDGE, LLC

AND RUSH COMMERCIAL CLEANING, LLC, Appellees. ________________________________/ Opinion filed January 28, 2022 Appeal from the Circuit Court for Seminole County, Michael J. Rudisill, Judge. Richard P. Spence, of The Spence Law Firm, PLLC, Orlando, for Appellant. Martin A. Pedata, of Martin Pedata, P.A., Deland, for Appellees. LAMBERT, C.J.,

Second, Former Wife, citing to the Florida Supreme Court’s opinion in Perlow v. Berg-Perlow, 875 So. 2d 383, 390 (Fla. 2004), argues that the trial court erred by adopting Former Husband’s one-page proposed equitable distribution worksheet into its final judgment. We disagree. Perlow did not hold that a trial court’s verbatim entry of a proposed final judgment submitted by a party is per se improper. As the court later explained in Strand v. Escambia County, 992 So. 2d 150, 155 (Fla. 2008), what it found to be improper in Perlow was the trial court’s almost-immediate verbatim adoption of a lengthy proposed final judgment submitted by one of the parties, without taking sufficient time to independently consider the judgment, and without allowing the opposing party an opportunity to object and submit his own proposed judgment.

In contrast, the parties here, through their counsel, were permitted to submit to the trial court written closing arguments as well as proposed final judgments, which they each did. The court then prepared its own final judgment, which admittedly incorporated Former Husband’s equitable distribution worksheet. The final judgment, however, was rendered approximately two months after the parties’ proposed final judgments and

We next turn to the alleged errors that Former Wife asserts were committed by the trial court in the final judgment, beginning with its equitable distribution of the parties’ marital assets and liabilities.

EQUITABLE DISTRIBUTION—

Former Wife argues that the trial court failed to make adequate findings of fact in its distribution of the parties’ assets and liabilities as required under section 61.075, Florida Statutes (2019), and that its distribution of the assets was “unequal.” Our standard of review on this issue is abuse of discretion. See Coleman v. Bland, 187 So. 3d 298, 299 (Fla. 5th DCA 2016) (“The standard of review of a trial court’s determination of equitable distribution is abuse of discretion.” (quoting Bardowell v. Bardowell, 975 So. 2d 628, 629 (Fla. 4th DCA 2008))).

The trial court’s equitable distribution worksheet identified, placed values on, and distributed both the marital and nonmarital assets and liabilities of the parties. A description of the assets and liabilities distributed is unnecessary to our resolution because Former Wife waived any argument

Former Wife also contends that the trial court erred in its equitable distribution of the marital assets by failing to address or distribute Former Husband’s purported interest in the following three business entities: Tiller and Sheets, LLC; TS Accounting Bridge, LLC; and Rush Commercial Cleaning, LLC.² However, in response to the trial court’s inquiry during opening statements as to whether she was seeking an equitable distribution of any of the businesses, Former Wife responded that she would not be

2 These three business entities are the co-appellees in this appeal.

ALIMONY—

We next address Former Wife’s arguments that the trial court erred in denying her request for an award of $3,200 per month in bridge-the-gap alimony. Our review of the trial court’s denial of Former Wife’s claim for alimony is under the abuse of discretion standard. See Smyth v. Smyth, 959 So. 2d 414, 415 (Fla. 1st DCA 2007) (recognizing that “[t]he standard of review [applicable to alimony decisions made by the trial court] is abuse of discretion” (citing Canakaris v. Canakaris, 382 So. 2d 1197, 1202 (Fla. 1980))). Section 61.08, Florida Statutes (2019), authorizes a trial court to award various forms of alimony. Under this statute, when deciding whether to award alimony, a trial court must first make a specific factual determination as to whether one party has an actual need for alimony and the other party

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In her initial brief, Former Wife “concedes that the trial court should impute a full-time minimum wage to her.” Resultingly, the issue framed before us is not whether the trial court should have imputed any income to Former Wife; instead, the question is whether the amount of the annual income that the court imputed to her was supported by competent substantial evidence presented at trial. See Hudson-McCann, 50 So. 3d at 737. Because Former Husband did present competent substantial evidence at trial, through his expert witness, that supports the trial court’s imputation of annual income to Former Wife in the amount that it did, we affirm on this issue without further discussion. Former Wife separately argues that the trial court abused its discretion in denying her claim for alimony when it failed to impute any income to Former Husband. The court found that Former Husband “[was] presently unemployed” but that he had a “gross [annual] income of approximately $96,211.00 per the parties’ 2018 tax return as a result of the dividends he receives from [his] premarital stock.”³ Former Wife contends that, over and

3 We reject, without further discussion, Former Wife’s separate argument that the trial court erred in determining Former Husband’s income to be $96,211 instead of what Former Wife contends was his anticipated dividend income of approximately $105,000 for 2019, the year in which the trial was held.

We find it unnecessary to address this argument because Former Wife has failed to preserve this claim for review. Nowhere in Former Wife’s written closing argument to the trial court did she contend or assert that, when determining her claim for alimony, the trial court should impute income to Former Husband. See Aills v. Boemi, 29 So. 3d 1105, 1109 (Fla. 2010) (“[T]o be preserved for appeal, ‘the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal.’” (quoting Chamberlain v. State, 881 So. 2d 1087, 1100 (Fla. 2004))).

Having considered all other arguments raised by Former Wife, we conclude, without further discussion, that she has not shown that the trial court abused its discretion in denying her claim for alimony.

Lastly, we address Former Wife’s argument that the trial court erred because it applied an incorrect standard of review when, in the final judgment, it granted Former Husband’s exceptions to the general magistrate’s report and recommendation. We agree with Former Wife; but, as we explain, the error is harmless as to those matters determined by the trial court in the final judgment. By way of background, not long after she filed her petition for dissolution of marriage, Former Wife moved for temporary relief. The parties subsequently entered into a “Mediated Settlement Agreement on Temporary Matters” that was incorporated into a temporary support order. This agreement was somewhat unique because, instead of providing that Former Husband would pay Former Wife a monthly, lump sum support payment, the parties agreed that Former Husband would pay directly to Former Wife or to the “provider” certain specified monthly expenses of Former Wife, including, but not limited to, the sum of $1,100 per month for her car payment and $400 per month towards her credit card bills.

Former Wife filed a motion for contempt alleging that Former Husband had willfully failed to pay his court-ordered temporary support obligations, despite having the present ability to do so. She also moved to calculate

Former Husband timely filed exceptions to the magistrate’s report. See Fla. Fam. L. R. P. 12.490(f) (“The parties may file exceptions to the report within¹⁰ days from the time it is served on them.”). In light of the compressed time frame between Former Husband’s filing of his exceptions to the magistrate’s report and the scheduled trial date approximately four weeks later, Former Husband’s exceptions were noticed to be heard at the

4 The transcript from the general magistrate’s hearing was filed long before the trial concluded and the final judgment was entered.

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Despite the trial court’s application of an incorrect standard of review, we nevertheless affirm the court’s ruling in its final judgment denying Former Wife’s motion to hold or find Former Husband in contempt because, as previously indicated, the error is harmless. In doing so, the nature of the temporary support order is important to our analysis. More particularly, temporary support orders, such as the one entered in this case, are interlocutory in nature, such that they are superseded by and merged into the final judgment. Jackson v. Jackson, 513 So. 2d 780, 781 (Fla. 1st DCA 1987). And as recognized by the Florida Supreme Court almost one hundred years ago, because these orders are interlocutory, a trial court has the discretion, upon proper showing, to vacate a prior order allowing temporary alimony, even when the order “was originally made by consent of the parties, and pursuant to an agreement between them.” Duss v. Duss, 111 So. 382, 383 (Fla. 1926).5 Furthermore, since a trial court’s enforcement of an interlocutory order for the payment of temporary alimony, in the absence of intervening and effective appellate jurisdiction, remains completely within the court’s discretion and control, a temporary support

5 See also § 61.14(11)(a), Fla. Stat. (2019) (providing that “[a] court may, upon good cause shown, and without a showing of a substantial change of circumstances, modify, vacate, or set aside a temporary support order before or upon entering a final order in a proceeding”).

Here, the trial court, in the final judgment, found that the temporary support order “was in place much longer than anticipated”; and it effectively modified the order to retroactively nullify Former Husband’s obligation to pay any past-due support payments that may have accrued. Resultingly, Former Wife’s motion for contempt for Former Husband’s alleged failure to make temporary support payments as required by this order was rendered moot. Former Wife has made no argument here that the trial court abused its discretion in essentially modifying the temporary support order. Accordingly, the trial court’s unchallenged and therefore affirmed retroactive modification of temporary support and resulting nullification of any past-due support payments effectively rendered moot those portions of the general magistrate’s report recommending that the trial court hold Former Husband in contempt for the nonpayment of his temporary support obligations. As a result, Former Husband’s exceptions to those portions of the magistrate’s report were likewise moot. Therefore, based upon the specific facts and circumstances in this case, the trial court’s error in granting those particular exceptions to the magistrate’s report was harmless.

AFFIRMED.

COHEN, J., concurs. EISNAUGLE, J., concurs specially, with opinion.