Third District Court of Appeal
State of Florida
Opinion filed June 16, 2021.
Not final until disposition of timely filed motion for rehearing.
________________
No. 3D20-463
Lower Tribunal No. 17-21699
________________
Amanda Lynn DiGiacomo,
Appellant,
vs.
Odel Jorge Mosquera,
Appellee.
An Appeal from the Circuit Court for Miami-Dade County, Marcia B.
Caballero, Judge.
Scanziani & Associates Law, P.A., and Jessica Ramirez-Garcia, for
appellant.
Koltun Lazar Laleh, and Jessica T. Laleh, for appellee.
Before EMAS, C.J., and FERNANDEZ and LOGUE, JJ.
EMAS, C.J.
The Wife appeals a final judgment of dissolution of marriage. She
raises several claims on appeal. 1 While we find none of the claims have
merit, and affirm the final judgment, we write to address the Wife’s claim that
the trial court abused its discretion in denying her motion for leave to amend
to file a counterpetition for alimony.
FACTS AND PROCEDURAL HISTORY
In September 2017, after a short-term marriage of approximately six
years, the Husband filed a petition for dissolution. The petition was filed
following an incident in which the Wife cut the neck of their then-fourteen-
month-old child. The Wife was arrested, and her parental rights to the child
were subsequently terminated. Here is the timeline of relevant proceedings
and pleadings in the dissolution action:
• October 24, 2017: The Wife filed her Answer to the Husband’s
dissolution petition. No counterpetition was filed.
1
We affirm, without further discussion, the Wife’s claims that the trial court:
(1) failed to comply with Florida Family Law Rules of Procedure 12.440
(governing when a case may be set for trial); (2) erroneously reduced the
Wife’s share of the 2018 income tax refund to contribute to child-care costs
where the Wife’s parental rights had been terminated; and (3) abused its
discretion in granting the Husband a credit for the carrying costs of the
marital residence from the date of filing (September 2017) through the date
of sale.
2
• August 2, 2018: The Wife’s parental rights were terminated.
• January 21, 2019: The Husband filed a motion for leave to amend his
petition.
• March 14, 2019: The Husband filed a motion to compel sale of marital
residence and for relief from status quo (i.e., relief from maintaining a joint
bank account and from paying for the Wife’s personal expenses).
Following a hearing on that motion, the trial court entered an order (on
May 13, 2019) requiring the Husband to pay the Wife—commencing June
1, 2019—$900 a month.
• March 27, 2019: The trial court entered an “agreed order granting
Husband’s motion for leave to file amended petition for dissolution of
marriage.” It required the Wife to file a “response to the Amended Petition
within ten (10) days.”
• March 29, 2019: The Husband filed an Amended Petition. Ten days
passed without the Wife filing a response to the Amended Petition.
• May 8, 2019: Five days before the trial court entered its order on the
Husband’s March 14 motion for relief from the status quo, the Wife filed a
Motion for Temporary Alimony and Motion to Compel Status Quo. A
hearing on the Wife’s motion was scheduled for July 29, 2019.
3
• May 13, 2019: As noted above, the trial court entered its order on the
Husband’s motion to compel sale of the marital residence and for relief
from the status quo, ordering the Husband to pay the Wife $900 a month.
• May 14, 2019: The trial court entered its Uniform Order setting the case
for nonjury trial on September 9, 2019.
• June 27, 2019: Nearly three months past the deadline in the March 27
agreed order, the Wife filed her Answer to the Amended Petition. Her
pleading did not include a counterpetition for alimony.
• June 28, 2019: The Husband filed a motion for continuance of the July
29 hearing (on the Wife’s motion for temporary alimony) because that
“temporary support hearing” was close in time to the September 9 final
hearing, and because the Wife was already receiving temporary support
pursuant to the trial court’s May 13 order. The court granted the
continuance contingent on the September 9 final hearing date remaining
unchanged.
• August 23, 2019: The Husband filed his Pretrial Catalogue.
• September 4, 2019: Five days before trial, the Wife filed her Pretrial
Catalogue. In this pleading, the Wife requested (for the first time) “bridge
the gap alimony, rehabilitative alimony, durational alimony or lump sum
alimony” and “a minimum of $3,000 per month.”
4
• September 5, 2019: The Husband filed a motion to strike the Wife’s
Pretrial Catalogue as untimely or, in the alternative, a motion to strike
those portions relating to her request for alimony.
• September 6, 2019: The Friday before the scheduled trial on Monday,
September 9, the Wife filed a motion for leave to amend her Answer to
the Amended Petition to include a counterpetition for alimony. A
proposed counterpetition was attached.
• September 9, 2019: On Monday, trial commenced as scheduled, and
the trial court addressed all pending motions, including the Wife’s
September 6 motion to amend her Answer to add a counterpetition for
alimony. Following lengthy discussion and legal argument, the trial court
denied the Wife’s motion, noting inter alia that it could not grant relief that
was not pled; the Wife had been represented by counsel at all relevant
times in the proceedings; nothing in the Husband’s pretrial catalogue
anticipated (or prompted) the Wife’s eleventh-hour request for alimony;
and granting the motion to amend on the first day of trial would result in
significant prejudice to the Husband.
The proceedings concluded on October 18, 2019; the parties
presented closing argument, and the trial court entered final judgment. This
appeal follows.
5
ANALYSIS AND DISCUSSION
Florida Family Law Rules of Procedure 12.190(a), 2 entitled “Amended
Pleadings” provides:
Amendments. A party may amend a pleading once as a matter
of course at any time before a responsive pleading is served or,
if the pleading is one to which no responsive pleading is
permitted and the action has not been placed on the trial
calendar, may so amend it at any time within 20 days after it is
served. Otherwise a party may amend a pleading only by leave
of court or by written consent of the adverse party. If a party files
a motion to amend a pleading, the party must attach the
proposed amended pleading to the motion. Leave of court shall
be given freely when justice so requires. A party must plead in
response to an amended pleading within 10 days after service of
the amended pleading unless the court otherwise orders.
2
This rule was adopted, virtually verbatim, from Florida Rule of Civil
Procedure 1.190(a), which provides:
Amendments. A party may amend a pleading once as a matter
of course at any time before a responsive pleading is served or,
if the pleading is one to which no responsive pleading is
permitted and the action has not been placed on the trial
calendar, may so amend it at any time within 20 days after it is
served. Otherwise a party may amend a pleading only by leave
of court or by written consent of the adverse party. If a party files
a motion to amend a pleading, the party shall attach the
proposed amended pleading to the motion. Leave of court shall
be given freely when justice so requires. A party shall plead in
response to an amended pleading within 10 days after service of
the amended pleading unless the court otherwise orders.
6
We review the denial of a motion for leave to amend for an abuse of
discretion. Santos v. Flores,
116 So. 3d 518, 520 (Fla. 3d DCA 2013). Well-
established law guides a trial court’s exercise of that discretion when
considering a party’s motion for leave to amend a pleading:
Florida Rule of Civil Procedure 1.190(a), provides that leave to
amend ‘shall be given freely when justice so requires.’ Typically,
refusal to allow amendment of a pleading constitutes an abuse
of discretion unless allowing the amendment ‘would prejudice
the opposing party, the privilege to amend has been abused, or
amendment would be futile.’ JVN Holdings, Inc. v. Am. Constr.
& Repairs,
185 So. 3d 599, 601 (Fla. 3d DCA 2016) (quoting
Kay's Custom Drapes, Inc. v. Garrote,
920 So. 2d 1168, 1171
(Fla. 3d DCA 2006)). While the policy in Florida, as articulated
in Rule 1.190(a), is to allow amendments to pleadings liberally,
‘a trial judge in the exercise of sound discretion may deny further
amendments where a case has progressed to a point that
liberality ordinarily to be indulged has diminished.’ Alvarez v.
DeAguirre,
395 So. 2d 213, 216 (Fla. 3d DCA 1981) (explaining
that in addition to the desirability of allowing amendments to
pleadings so that cases may be concluded on their merits, there
is an equally compelling obligation on the court to see to it that
the end of all litigation be finally reached).
Pangea Produce Distribs., Inc. v. Franco's Produce, Inc.,
275 So. 3d 240,
242 (Fla. 3d DCA 2019).
Although Florida’s liberal policy directs that leave to amend “shall be
given freely when justice so requires,” see rule 12.190(a), and “generally
resolving all doubts in favor of granting leave to amend,” see Off Lease Only,
Inc. v. LeJeune Auto Wholesale, Inc.,
187 So. 3d 868, 871 n. 4 (Fla. 3d DCA
2016), such liberality is not unbridled. Airlift Intern., Inc. v. Linee Aeree
7
Italiane, S.p.A.,
212 So. 2d 109 (Fla. 3d DCA 1968). A court may exercise
its discretion to deny such leave to amend where “it clearly appears that
allowing the amendment would prejudice the opposing party.” Dieudonne v.
Publix Super Markets, Inc.,
994 So. 2d 505, 507 (Fla. 3d DCA 2008)
(quotation omitted). Indeed, the trial court’s primary consideration in
determining whether to grant leave to amend is prejudice to the opposing
party. Wackenhut Protective Sys., Inc. v. Key Biscayne Commodore Club
Condo. I, Inc.,
350 So. 2d 1150 (Fla. 3d DCA 1977). In the instant case, the
trial court properly determined that granting the Wife leave to amend to file,
on the day of trial, a counterpetition for alimony would cause substantial
prejudice to the Husband, who had been litigating the matter with the Wife
for two years, and did not anticipate and had not prepared to litigate a claim
for alimony (such preparation might include: retaining a vocational expert to
address imputation of income for the Wife who was unemployed; deposing
the Wife and/or Wife’s expert on the issue; conducting pretrial preparation to
meet and challenge an alimony claim). See, e.g., Minotty v. Baudo,
42 So.
3d 824, 836 (Fla. 4th DCA 2010) (finding no abuse of discretion in denying
“the late-filed motion to amend” where the plaintiffs sought to assert a claim
for punitive damages on their breach of fiduciary duty and fraud claims “on
8
the eve of trial,” and noting that “the plaintiffs could have brought the motion
as to those claims much earlier”).
Relatedly, and as we have long held: “It is manifest that the further the
case progresses, the more likely the granting of such amendment is inclined
to prejudice the opponent.” Airlift Intern., 212 So. 2d at 110. See also Lasar
Mfg. Co. v. Bachanov,
436 So. 2d 236, 237-38 (Fla. 3d DCA 1983)
(recognizing that the “liberality in granting leave to amend diminishes as the
case progresses to trial”); United States v. State,
179 So. 2d 890, 893 (Fla.
3d DCA 1965) (observing: “While our courts are generally liberal in permitting
the amendment of pleadings, this ‘liberality’ gradually diminishes as the case
progresses”).
Given the trial court’s determination of clear, substantial prejudice to
the opposing party, coupled with the eleventh-hour nature of the Wife’s
motion, we find no abuse of discretion in the trial court’s denial of the Wife’s
motion for leave to amend to add a counterpetition for post-dissolution
alimony.
We also find without merit the Wife’s contention that the Wife’s earlier
motion for temporary alimony somehow put the Husband on notice that the
Wife was seeking post-dissolution alimony. The Wife’s motion for temporary
9
alimony specifically cited to section 61.071, Florida Statutes (2018), 3 and
expressly sought an award of temporary alimony “[d]uring the pendency of”
the dissolution of marriage proceeding. As the Wife’s motion correctly noted,
section 61.071 “pertains to alimony in a dissolution proceeding and does not
address a temporary award post-dissolution.” Reidy v. Reidy,
232 So. 3d
1053, 1055 (Fla. 4th DCA 2017).
Nor did the postponement of the hearing on the Wife’s motion for
temporary alimony reasonably suggest that the Husband should have
anticipated that the final hearing would somehow involve an unpled request
by the Wife for post-dissolution bridge-the-gap, rehabilitative, durational or
lump sum alimony. Indeed, the reason the trial court postponed the hearing
on the Wife’s request for temporary alimony and to maintain the status quo
was that the final hearing was only ten weeks away, and the Husband was
already paying the Wife $900 per month during the pendency of the
3
Section 61.071, Florida Statutes (2018), provides for alimony and suit
money “pendente lite,” meaning during the pendency of the dissolution
proceeding. See Florida Bar re Frankel,
581 So. 2d 1294, 1299 n.5 (Fla.
1991) (noting: “‘Pendente lite’ is defined as ‘[p]ending the lawsuit; during the
actual progress of a suit; during litigation.’” (quoting Black's Law Dictionary
1134 (6th ed. 1990))); Holly v. Holly,
89 So. 132, 133 (Fla. 1921) (noting:
“Alimony pendente lite is awarded to furnish the wife, from whom the
husband has withdrawn his support, with the means of living, and for the
further reason, in which there is a high public interest, that she may not
become a charge upon the state, while her rights are being adjudicated.
Counsel fees are awarded to enable the wife to maintain or defend her suit.”)
10
dissolution proceeding. A review of the Wife’s own motion, together with the
Husband’s motion and the trial court’s order, supports the conclusion that
the Husband did not anticipate, nor should he reasonably have anticipated,
that the Wife would be seeking post-dissolution alimony at the final hearing.
Because neither the Wife’s motion for temporary alimony, nor her
Answer to the amended petition, properly pled a request for post-dissolution
alimony, the Wife cannot prevail on this unpled claim. McClain v. McClain,
105 So. 3d 641, 642 (Fla. 3d DCA 2013) (holding: “A court is not at liberty to
award alimony where the benefitting spouse has failed to seek such relief in
the pleadings.”) (quotation omitted). See also Clark v. Clark,
147 So. 3d 655,
6xx (Fla. 5th DCA 2014) (rejecting the wife’s contention that alimony was at
issue by virtue of her “pre-trial compliance,” and explaining that the pre-trial
compliance document “is not a substitute for amending the complaint”).
CONCLUSION
The trial court did not abuse its discretion in denying leave to amend
to file a counterpetition seeking post-dissolution alimony given the trial
court’s proper determination of substantial prejudice to the Husband and the
Wife’s filing of the motion for leave to amend on the Friday before the
Monday of the final hearing.
Affirmed.
11
