Third District Court of Appeal
State of Florida
Opinion filed May 12, 2021.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D20-1119
Lower Tribunal No. 88-43278
________________
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
2
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[1]. 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
1
The Settlement Agreement was notarized and witnessed by two witnesses
for each party.
3
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
4
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
2
The former husband also testified as to financial assistance he provided to
Pablo Jr. while an adult.
5
Pablo Jr. to purchase a house.
During the hearing before the General Magistrate, the former
husband’s counsel attempted to argue that laches is available as to the
former wife’s request for child support arrearages, but the General
Magistrate stated that laches was not properly raised. The trial court allowed
the former husband to proffer an argument as to laches.
At the conclusion of the hearing, the General Magistrate reserved
ruling. On December 24, 2019, the General Magistrate entered his Report
and Recommendations on the former wife’s Motion for Enforcement
(“Report”). At the time that the Report was entered, Pablo Jr. was forty years
old and was emancipated twenty-two years earlier.
As to the former wife’s request for child support arrearages, the
General Magistrate found that the former wife failed to give a reasonable
explanation as to why she waited twenty-two years after Pablo Jr.’s
emancipation to bring the child support enforcement action, noting that the
parties were neighbors in Lake Placid, and the former wife did not raise the
issue of delinquent child support to the former husband or file a motion to
recover any child support prior to this action. The General Magistrate found
that the former husband failed to raise laches and failed to provide any
written proof of payment of child support. However, “he has paid for other
6
expenses of the minor child which more than satisfy any delinquent child
support.” Thus, the General Magistrate recommended that the trial court
deny the former wife’s Motion for Enforcement as the former husband “has
adequately supported his son and does not owe any child support arrears.”
As to the former wife’s request relating to the trust, the General
Magistrate found that the language in the Agreement as to the educational
trust for Pablo Jr. is clear and unambiguous, and the trust funds are to be
used for Pablo Jr.’s college or post-high school education. Further, the
General Magistrate found that Pablo Jr. is currently forty years old, and at
the hearing, he did not offer plans for college or post-high school education.
Thus, the General Magistrate found that the trust is not needed for the
intended purpose of funding Pablo Jr.’s college and/or post-high school
education. The General Magistrate stated that under section 736.0409 of
the Florida Statutes, property not required for the intended use of a trust must
be distributed to the settlor. Thus, the General Magistrate recommended
that the trial court rule that the money held in escrow by the title company
shall be disbursed to the former husband.
The former wife filed Exceptions to Report of General Magistrate Dated
December 24, 2019 and/or Motion to Vacate and/or Set Aside the Findings
and Recommendations of the General Magistrate (“Exceptions to Report”).
7
The former wife took exception to, among other things, the General
Magistrate’s findings/recommendations that (1) the former husband does not
owe any child support arrearage despite the former husband’s admission
that he did not pay child support for a six-month period; and (2) the former
husband does not have to fund the trust as Pablo Jr. did not attend college
except for a couple of semesters, asserting that the former husband should
fund the trust in accordance with the parties’ Agreement and that Pablo Jr.
is entitled to receive those funds as the funds are for his benefit.
The trial court entered an Order on Exceptions to General Magistrate’s
Report and Recommendations (“Order on Exceptions”), sustaining the
exceptions relating to both child support and the trust/disbursement of the
funds held in escrow. As to the former wife’s exception relating to child
support, the trial court noted that there is no statute of limitations on child
support enforcement actions in Florida. However, laches is generally applied
to determine whether an action is barred, but the former husband waived
laches.
The trial court, however, concluded that the record clearly established
that there was a six-month child support arrearage owed by the former
husband, and reserved jurisdiction to adjudicate the six months of support.
In making this determination, the trial court (1) noted that the parties had not
8
modified their Agreement in writing as required by the Agreement, and (2)
relied on this Court’s decision in Onley v. Onley,
540 So. 2d 880 (Fla. 3d
DCA 1989).
In Onley v. Onley,
540 So. 2d 880 (Fla. 3d DCA 1989), this Court
reversed the trial court’s decision to give the child’s father a $2,000 credit on
the child support arrearages he owed because the vehicle he gave his son
cost $2,000. In Onley, this Court held:
It is well settled that support obligations accruing under a court
order in a domestic case become vested rights of the payee and
vested obligations of the payor which are not subject to
retroactive modification. In the absence of some showing—
which was not present here—that a payment to or on behalf of
the child served to discharge a duty of support encompassed by
the order in question, . . . such a payment, if unilaterally made
without the authority of court, cannot serve to discharge or
reduce the requirements imposed upon the non-custodial parent.
Onley,
540 So. 2d at 880-81 (internal citations omitted). In addition, in Onley,
this Court stated that “mere gratuities” cannot be set off.
Id. at 881. In
concluding that the trial court erred by giving Mr. Onley a $2,000 credit for
the vehicle he provided to the parties’ son, this Court stated: “However well-
intentioned, Onley had neither authorization nor right to modify by self-help
the simple terms of a court order that he periodically pay his ex-wife a
designated sum of money for the children’s support.”
Id. (italics in original).
As to the former wife’s exception relating to the trust for Pablo Jr.’s
9
college or post-high school education, the trial court found that the provisions
in the Agreement are clear and unambiguous and have not been modified
and/or waived in writing, and therefore, must be performed. The trial court
found that the General Magistrate erred by relying on section 736.0409(3),
Florida Statutes (2020),3 because the trust was never created. Further, the
trial court concluded that the Agreement is still binding, and the parties are
able to perform in accordance with the Agreement. 4 The trial court also
concluded that the “General Magistrate’s Report was clearly erroneous in
3
Section 736.0409, Florida Statutes (2020), provides:
Noncharitable trust without ascertainable beneficiary.—
Except as otherwise provided in s. 736.0408 or by another
provision of law, the following rules apply:
(1) A trust may be created for a noncharitable purpose without
a definite or definitely ascertainable beneficiary or for a
noncharitable but otherwise valid purpose to be selected by the
trustee. The trust may not be enforced for more than 21 years.
(2) A trust authorized by this section may be enforced by a
person appointed in the terms of the trust or, if no person is
appointed, by a person appointed by the court.
(3) Property of a trust authorized by this section may be applied
only to the intended use of the property, except to the extent the
court determines that the value of the trust property exceeds the
amount required for the intended use. Except as otherwise
provided in the terms of the trust, property not required for the
intended use must be distributed to the settlor, if then living,
otherwise as part of the settlor’s estate.
4
We take no issue with this determination. Moreover, this provision pertains
to trusts without an ascertainable beneficiary. Here, Pablo Jr. would be the
only beneficiary of the instant trust, and therefore, there is an ascertainable
beneficiary.
10
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
11
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
12
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.
5
We take no position.
6
As Judge Cope stated in Garcia v. Guerra,
738 So. 2d 459, 464 (Fla. 3d
DCA 1999):
In our view, it would be helpful to the courts and litigants if the
legislature would adopt an explicit statute of limitations
establishing a fair time period for bringing arrearage actions. A
bright-line rule would assist counsel in advising clients when
claims are viable, and when they are not. As matters now stand,
arrearage claims continue to be brought after very lengthy delays
. . . . In the absence of an explicit limitation period, laches
requires a case-by-case determination of the limitation period—
a slow and expensive process.
(citations omitted; footnote omitted).
13
The former husband argues that the Agreement defines the specific
intent and purpose of the trust, “but also clearly and logically the duration of
any obligation.” We disagree, in part, as the Agreement does not set forth a
time limit in which Pablo Jr. must attend college or post-high school
education. Despite Pablo Jr. being more than forty years old at this point,
the terms of the Agreement are still capable of being fully performed as Pablo
Jr. may decide to attend college or pursue post-high school education. Thus,
as the trial court ruled, the former wife must open a trust account and the
escrowed funds are to be deposited in that account.
As stated earlier, Pablo Jr. did not testify as his plans to attend college
or pursue any further post-high school education. Thus, on remand, the trial
court is instructed to conduct an evidentiary hearing to determine Pablo Jr.’s
plans, and thereafter, based on his testimony, “address the use of the funds”
as set forth in its reservation of jurisdiction in the Order on Exceptions.
The remaining arguments raised by the former husband do not merit
discussion. Accordingly, we affirm, in part, and reverse, in part, the Order
on Exceptions, and remand for further proceedings consistent with this
opinion.
Affirmed, in part; reversed, in part, and remanded for further
proceedings.
14
