PABLO DELGADO

v.

MARILYN DELGADO

Third District Court of Appeal

State of Florida

Opinion filed May 12, 2021. Not final until disposition of timely filed motion for rehearing.

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No. 3D20-1119 Lower Tribunal No. 88-43278

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Pablo Delgado,

Appellant,

vs.

Marilyn Delgado,

Appellee.

An Appeal from a non-final order from the Circuit Court for Miami-Dade County, Migna Sanchez-Llorens, Judge. Herrera Law Firm, P.A., and Jose-Trelles Herrera, for appellant. Scanziani & Associates Law, P.A., and Jessica Ramirez-García, for appellee. Before FERNANDEZ, HENDON, and GORDO, JJ. HENDON, J. Pablo Delgado (“former husband”) appeals from the trial court’s Order on Exceptions to General Magistrate’s Report and Recommendations (“Order on Exceptions”), which sustained exceptions filed by Marilyn Delgado (“former wife”). We affirm, in part, reverse, in part, and remand for an evidentiary hearing consistent with this opinion. In 1989, a final judgment of dissolution of marriage was entered, ratifying the Property Settlement Agreement (“Agreement”) entered into by the former wife and the former husband. The Agreement provides, in pertinent part, as follows: 6. CHILD SUPPORT: The Husband shall pay to the Wife, for support maintenance of the minor child, Pablo Delgado, Jr., born November 1, 1979, age 9, the sum of $500.00 per month, the first payment being due on June 1, 1989 and continuing thereafter on the first day of each succeeding month. a. Creation of Trust. The Husband shall pay 15% of the profits of his current business known as Delgado’s Warehouse to the Wife, as trustee for Pablo Delgado, Jr. . . . The Wife shall open an account as Trustee to receive such payments. The Husband shall make payments to the trust not less than annually . . . . The funds accumulating in said account shall be used for the child’s college or other post-high school education. This provision shall apply to any subsequent or successor business of the Husband. b. Payment on sale of property. The Husband’s business owns real property legally described on the attached Exhibit A. Upon the sale of the property, 50% of the net proceeds shall be placed in the trust. The Husband agrees not to cause any other liens to be placed on the property without the consent of the Wife. A memorandum of this agreement shall be placed in the public records. c. Modification and Termination. The support rights of the child shall terminate and the obligation of the Husband to pay child support shall cease upon the occurrence of any one of the following: . . . . ii) Attainment of his eighteenth birthday[.] . . . . 11. MODIFICATION AND WAIVER: A modification or waiver of any of the provisions of this Agreement shall be effective only if made in writing and executed with the same formality as this Agreement. The failure of either party to insist upon strict performance of any of the provisions of this Agreement shall not be construed as a waiver of any subsequent default of the same or similar nature. In October 2018, the former husband sold the property referenced in paragraph 6.b. of the Agreement for $412,000. Due to a lis pendens filed by the former wife and the parties’ now-adult child, Pablo Delgado, Jr. (“Pablo Jr.”), the title company held 50% of the net proceeds from the sale in escrow for the former wife, as trustee.

Thereafter, the former wife filed a “Verified Motion for Enforcement and/or Contempt of the Parties’ Property Settlement Agreement and Final Judgment” (“Motion for Enforcement”). In the motion, the former wife referenced paragraphs 6.a.-b. and 11 of the Agreement, and requested, among other things, that (1) the former husband be ordered to pay the former wife all outstanding child support and 15% of the annual profits from Delgado’s Warehouse, and (2) the title company be ordered to disburse to the former wife the funds held in escrow from the sale of the subject property. The trial court referred the matter to a General Magistrate. At the evidentiary hearing, the former wife, the former husband, and Pablo Jr. testified. The evidence showed that the former wife never opened the trust account referenced in the parties’ Agreement, and the parties did not modify the Agreement or waive any provision in the Agreement. As to child support, the former wife testified that the former husband paid $500 per month in child support for a few months, but he then reduced the payment to $250 per month, and he failed to pay any child support for a six-month period. In contrast, the former husband testified that he paid all child support due under the Agreement except for a six-month period, but he no longer has any paperwork to establish the amounts paid. As to Delgado Warehouse, the former husband testified that the business never earned a profit and, therefore, no money was placed in trust for Pablo Jr. The former husband also testified as to other payments made on behalf of Pablo Jr. not required under the terms of the parties’ Agreement while Pablo Jr. was a minor. For example, he purchased Pablo Jr. a $20,000 vehicle when he was sixteen years old, and the former husband paid the required insurance on the vehicle. Moreover, the former husband, along with the former wife, contributed to Pablo Jr.’s private school education.² The testimony showed that the former husband and his current wife relocated to the Sebring/Lake Placid area, and Pablo Jr., while an adult, lived with the former husband for a while. Pablo Jr. eventually moved out, married, and had children of his own. The former wife, along with her husband, moved to the area and the parties and their respective spouses were neighbors for several years. The former wife never raised the issue of delinquent child support to the former husband. Moreover, the former husband lent the former wife and her current spouse $50,000, and when the former wife repaid the former husband, she repaid the full amount and did not mention the $3,000 in delinquent child support. As to Pablo Jr.’s college and post-high school education, the testimony reflects that the former wife purchased a Florida Prepaid College Plan for Pablo Jr., and he attended community college for two semesters. Moreover, Pablo Jr. attended plumbing school for several months, but did not finish. During the hearing, Pablo Jr. did not offer any plans as to college and/or post-high school education. The testimony also showed that the remaining Prepaid College Plan was utilized to pay for Pablo Jr.’s wedding and for adjudicating on the issues related to the trust prematurely as the parties are still bound to perform their obligations in the Agreement.” The trial court reserved jurisdiction to address the use of the funds. The former husband’s non-final appeal followed.

The former husband contends that the trial court erred by sustaining the former wife’s exceptions as to both the child support and the trust. We agree, in part.

We agree with the majority of the trial court’s ruling on the former wife’s exceptions to the General Magistrate’s Report as set forth in the trial court’s Order on Exceptions. As the trial court correctly determined, the parties’ Agreement is clear and unambiguous and has not been modified by the parties. As to child support, the trial court correctly determined that the former husband admitted to not paying child support for a six-month period, and therefore, there is a six-month child support arrearage. Further, the trial court properly determined that the arrearage cannot be set-off by other payments or gifts made while Pablo Jr. was a minor based on the reasoning set forth in Onley, as any gifts or payments on behalf of Pablo Jr. were unilaterally made without authority of court and did not serve to discharge a duty of support encompassed by the Agreement.

We do, however, take issue with the trial court’s determination that the former husband failed to raise the equitable defense of laches, and therefore, we reverse that portion of the Order on Exceptions. In her answer brief, the former wife conceded “that the equitable defense of laches was not waived.” The former wife, however, argued that under the “tipsy coachman doctrine,” the Order on Exceptions should be affirmed because the former husband failed to establish the requirements necessary to establish laches. To establish the defense of laches, the former husband was required to prove the following: (1) conduct by the defendant that gives rise to the complaint; (2) that the plaintiff had knowledge of the defendant's conduct and did not assert the opportunity to institute suit; (3) lack of knowledge by the defendant that the plaintiff will assert the right upon which suit is based; and (4) extraordinary injury or prejudice. Ticktin v. Kearin, 807 So. 2d 659, 664 (Fla. 3d DCA 2001) (citing Dean v. Dean, 665 So. 2d 244 (Fla. 3d DCA 1995)); see also Dep’t of Revenue v. Holley, 86 So. 3d 1199, 1203 (Fla. 1st DCA 2012). “A trial court’s application of the doctrines of either laches or equitable estoppel is reviewed for abuse of discretion, provided there is competent, substantial evidence for each element of the doctrine applied.” Holley, 86 So. 3d at 1202-03. Here, as the trial court has not made such a determination, we remand with instructions for the trial court to conduct an evidentiary hearing as to the issue of laches.⁵ Following the evidentiary hearing, if the trial court determines that the former husband failed to establish the necessary elements to apply laches to the child support arrearage, the trial court, as reserved in its Order on Exceptions, is instructed to adjudicate the six month child support arrearage.6 As to the trial court’s ruling relating to the trust, the former husband agrees that the provisions in the Agreement are clear and unambiguous, but argues that the trial court rewrote the clear and unambiguous Agreement. We disagree.