Posted by Nydia Streets of Streets Law in Florida Divorce
A party who removes money from a marital retirement account while a Florida divorce case is pending may be in violation of what many jurisdictions call a status quo order. This order requires that the parties not disrupt the customary status of the parties by canceling utilities, running up debt on joint credit cards and more. The status quo was part of the issue in the case Erskine v. Erskine, 1D20-707 (Fla. 1st DCA July 27, 2022).
In this divorce case, the husband was ordered to pay $80,000 in temporary attorney’s fees to the wife. To pay this amount, he withdrew a lump sum from his retirement account, a portion of which was determined to be marital. The wife sought to hold the husband in contempt of the jurisdiction’s status quo order which prohibited such withdrawal without her consent or a court order. The trial court found the husband to be in contempt and ordered that he provide an accounting of the funds withdrawn from the retirement account and of his liquid assets indicated on his financial affidavit. The court also awarded the wife attorney’s fees and costs under Fla. Stat. 61.16 and both matters were appealed by the husband.
As to the contempt issue, the appellate court found the husband was not entitled to certiorari relief. It held “Instead, the trial court ordered that the husband account for his liquid assets and for the funds that were in the retirement account. The ‘sanction’ essentially required more disclosure in place of imposition of a monetary sanction or reduction of liberty. In this sense, the trial court did not order much more than what already is required in the way of financial disclosures. See Fla. 6 Fam. L. R. P. 12.285, 12.287. We are hard-pressed to see how the additional disclosure obligation imposed by the trial court—even if it were erroneous—causes any harm to the husband at all, let alone a harm that could not be remedied through a direct appeal. No matter how we characterize the relief that the husband seeks, then, we must dismiss the appeal [. . .]”
The appellate court also rejected the husband’s claim that the trial court was without jurisdiction to award the wife appellate fees because there was no authorizing order from the appellate court before the trial court made the award. The court looked to the plain language of Fla. Stat. 61.16 which states “The trial court shall have continuing jurisdiction to make temporary attorney’s fees and costs awards reasonably necessary to prosecute or defend an appeal on the same basis and criteria as though the matter were pending before it at the trial level. . . . In determining whether to make attorney’s fees and costs awards at the appellate level, the court shall primarily consider the relative financial resources of the parties, unless an appellate party’s cause is deemed to be frivolous.”
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