Third District Court of Appeal
State of Florida
Opinion filed April 7, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D20-60
Lower Tribunal No. 17-19029
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Carla Apesteguy,
Appellant,
vs.
Maximiliano Keglevich, et al.,
Appellees.
An Appeal from the Circuit Court for Miami-Dade County, Valerie R.
Manno Schurr, Judge.
Coral Way Law Center, and Miguel San Pedro and Ana Cristina
Berenguer, for appellant.
Nancy A. Hass, P.A., and Nancy A. Hass (Fort Lauderdale); Wallen |
Kelley, and Todd L. Wallen, for appellees.
Before EMAS, C.J., and SCALES and LOBREE, JJ.
EMAS, C.J.
The former wife, Carla Apesteguy, appeals from a final judgment of
dissolution of marriage from her former husband, Maximiliano Keglevich.
The final judgment made equitable distribution determinations, awarded
alimony and child support, found entitlement to attorney’s fees, and entered
judgment in favor of third-party defendant Casa Bianca Miami, LLC. For the
reasons that follow, we affirm in part and dismiss in part.
FACTS AND PROCEDURAL BACKGROUND
The couple was married in 2013 in Argentina. They had two children
together, both of whom were born prior to the marriage. The family moved
to Miami in 2013, and Apesteguy and Keglevich separated in 2015.
In August 2017, the former wife filed a Petition for Support
Unconnected with Dissolution of Marriage with Dependent or Minor Children.
Three months later, the former wife filed a verified petition for dissolution of
marriage. The former husband counter-petitioned for dissolution of
marriage, and the former wife thereafter filed an amended verified petition
for dissolution.
Throughout the course of the parties’ short marriage, the former wife
did not work, and the former husband was the sole wage earner. He also
had significant premarital assets, which he frequently utilized to support the
family. Following the separation and dissolution proceedings, the former
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husband continued to provide support to the former wife and the children,
also contributing to her attorney’s fees and accountant fees. But during the
dissolution proceedings, the former husband urged the former wife to curtail
her spending habits due to a decline in his income. During the proceedings
below, the former husband attempted to reach a settlement with the former
wife, but she refused, failing to attend the scheduled mediation or to
participate in discovery until the eve of trial.
Following a three-day trial, the trial court entered its final judgment,
distributing the marital assets, establishing child support amounts, and
awarding the former wife lump sum alimony. This appeal followed, and the
former wife asserts the trial court abused its discretion in:
(1) Denying her motion for a continuance of the trial
(2) Making equitable distribution determinations
(3) Awarding alimony and child support
(4) Finding for the former husband on entitlement to attorney’s fees
(5) Adopting the former husband’s proposed final order verbatim
ANALYSIS AND DISCUSSION
1) The former wife’s motion for continuance of the trial
We review this issue for an abuse of discretion. Taylor v. Mazda Motor
of Am., Inc.,
934 So. 2d 518, 520 (Fla. 3d DCA 2005). The motion to
continue the trial was the former wife’s third such motion, and was filed less
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than an hour before commencement of the trial. The motion sought a
continuance because the former wife claimed to have “discovered” evidence
that the former husband was not in Miami (as he testified to in a deposition
taken months earlier) when he signed a loan agreement for a piece of
property in Key Largo (property which the former wife contended was marital
and which the former husband contended was nonmarital). The former wife
indicated she needed a continuance to translate certain documents (from
Portuguese) and prepare them for introduction and use at trial, in order to
impeach the former husband on this point.
In determining whether the trial court abused its discretion in denying
a motion for continuance, the trial court considers, inter alia, whether the
denial created an injustice for the movant, whether it was unforeseeable by
the movant and not the result of dilatory conduct, and whether the
nonmoving party would suffer prejudice or inconvenience as a result of the
continuance. See Fleming v. Fleming,
710 So. 2d 601 (Fla. 4th DCA 1998).
The former wife had this information (and related documentation) in
her possession for at least five months, as it was provided to her counsel
during discovery. That the former wife failed to act with diligence in preparing
the impeachment documents in advance of the trial was properly rejected by
the trial court as good cause for the late-hour continuance. Moreover, the
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former husband admitted during his testimony at trial that he was not in the
United States on the date in question, thus negating any arguable prejudice
flowing from the court’s decision to deny the requested continuance. The
transcript evidences that the trial court viewed this continuance request as
dilatory conduct consistent with the former wife’s prior conduct, which
included efforts to delay and a refusal to cooperate in the pretrial discovery
process. The court rejected this latest, last-minute attempt, concluding that
the former husband would suffer prejudice if it granted another continuance,
this one at the very precipice of trial. We find no abuse of discretion in the
trial court’s determinations.
2) Equitable distribution of marital assets
Generally, we review a trial court’s equitable distribution determination
for an abuse of discretion. Viscito v. Viscito,
214 So. 3d 736 (Fla. 3d DCA
2017). The factual determination regarding whether property is marital or
not must be supported by competent substantial evidence. Van Maerssen
v. Gerdts,
295 So. 3d 819, 823 (Fla. 4th DCA 2020). “Where ‘there is
substantial competent evidence to support the trial court’s findings, the
appellate court cannot’ substitute its judgment for that of the trial court.”
Id.
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The former wife challenges the distribution of a property in Argentina,
and a property in Key Largo, Florida. 1 The trial court determined that neither
of these was a marital asset subject to equitable distribution. We find no
abuse of discretion.
The Argentine property. As to the Argentine property, the former
husband testified he purchased it prior to the marriage. Although the family
lived there for a few days prior to relocating to Miami, the property was
thereafter sold, and the former husband testified that all proceeds from that
sale had been used to support the children and the former wife. The former
wife presented no testimony or other evidence to rebut or contradict the
former husband’s testimony. 2
1
The former wife also contends that the appreciation in value of a car rental
company was a marital asset subject to equitable distribution. We affirm on
that claim without further discussion, as this issue was not properly
preserved. See Smith v. Smith,
273 So. 3d 1168, 1171 (Fla. 1st DCA 2019)
(holding that party must alert the trial court, via motion for rehearing, to an
error which appears for the first time on the face of a final order or the issue
is not preserved for appeal). See also Chiu v. Wells Fargo Bank, N.A.,
242
So. 3d 461 (Fla. 3d DCA 2018); Hall v. Marion Cty. Bd. of Cty. Comm’rs,
236
So. 3d 1147 (Fla. 5th DCA 2018).
2
The former wife also contends that there was rental income derived from
the property which should have been deemed a marital asset. Even if true—
and rental income was derived from the property and deemed a marital
asset—the unrebutted evidence was that such income had long ago been
spent to pay family expenses.
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The Key Largo property. The Key Largo property was owned by Casa
Bianca Miami, LLC, which was joined as a third-party defendant to this action
upon the former wife’s allegation that the company (together with its sole
asset, the Key Largo property) constituted marital property which was
transferred to the former husband’s father to avoid equitable distribution.
The testimony at trial was that Casa Bianca Miami was formed by the
former husband shortly after the marriage; the Key Largo property was
purchased by Casa Bianca Miami in 2013 (also shortly after the marriage);
none of the funds used for the purchase were marital funds, but were
provided to the former husband by his father, Nicholas Keglevich, pursuant
to a written agreement. Under the terms of the written agreement (which
was introduced at trial), if the former husband failed to repay the loan by July
19, 2016, all interest in the Key Largo property and in Casa Bianca Miami
LLC was to be transferred to his father. The evidence presented at trial was
that the former husband failed to make the required loan payments and, as
a result, in 2016 (prior to the former wife’s filing of the dissolution petition),
the Key Largo property was transferred to Nicolas Keglevich in repayment
of the loan. The trial court determined the former husband’s father fully
funded the purchase of the Key Largo property, that none of the funds used
to purchase or improve the property were marital funds, and that the property
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was not a marital asset. The record contains competent substantial evidence
to supports these determinations, and we find no abuse of discretion.
3) Alimony and Child Support Awards
We review the trial court’s alimony and child support awards for an
abuse of discretion. Weiner v. Weiner,
403 So. 2d 408, 409 (Fla. 1981)
(holding: “An appellate court may reverse an inadequate award of alimony
when there has been a clear abuse of discretion by the trial judge”); Castillo
v. Castillo,
59 So. 3d 221, 221 (Fla. 3d DCA 2011) (observing: “Where a
decision is within the judicial discretion of the trial judge, as in determining
the amount of alimony or child support, the standard for appellate review is
abuse of discretion. Viewed as a matter of discretion, on appeal we can
reverse only if no reasonable judge would have decided as this one did. The
standard of review for a child support award is abuse of discretion.”)
In the final judgment, the trial court awarded the former wife lump sum
alimony in the amount of $12,000, plus money to cover her rent obligation,
up to $3000 per month for twelve consecutive months. The trial court also
awarded $1000 per month in child support, with an automatic, one-half
reduction when the eldest child emancipates. Finally, the court ordered the
former husband to pay all the children’s reasonable, agreed upon, uncovered
expenses.
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The former wife asserts that even though this was a short-term
marriage, the court failed to consider the extravagant standard of living
established during the marriage under section 61.08(2)(a), Florida Statutes
(2019). She also challenges the former husband’s financial affidavit and his
expert’s testimony.
Contrary to the former wife’s contention, the court clearly did consider
the couple’s lifestyle, as can be readily seen in the detailed final judgment,
where the court meticulously considered the factors enumerated in section
61.08(2)(a)-(j) in reaching its ultimate determinations. Indeed, the court even
noted that, based on the short length of the marriage and her refusal to
accede to the former husband’s request to curtail spending due to the
declining financial situation (an assessment supported by the record), the
trial court did not believe the former wife was entitled to any alimony.
However, because the former husband had in fact offered to pay the former
wife the above-described amounts as alimony, the court awarded it in the
final judgment. The former wife’s arguments in this regard are without merit.
Finally, although the former wife includes the child support award as
one of the issues to be raised on appeal, she advances no such argument
in her brief. The former wife has thus waived this issue for appeal. See
Simmons v. State,
934 So. 2d 1100, 1111 n. 12 (Fla. 2006); Singer v.
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Borbua,
497 So. 2d 279, 281 (Fla. 3d DCA 1986) (holding that “in order to
obtain appellate review, alleged errors relied upon for reversal must be
raised clearly, concisely and separately as points on appeal”); Florida
Emergency Physicians-Kang & Assoc., M.D., P.A. v. Parker,
800 So. 2d 631,
636 (Fla. 5th DCA 2001) (noting: “We do not address issues not clearly set
out in the issues on appeal”).
4) The Finding of Entitlement to Attorney’s Fees
The former wife argues on appeal that the trial court erred in finding
the former husband was entitled to an award of attorney’s fees. However,
because the trial court merely granted entitlement to fees, but has not yet
awarded an amount of fees in a final judgment, we are without jurisdiction to
address the merits of this interlocutory order. See Diaz v. Citizens Prop. Ins.
Corp.,
227 So. 3d 735 (Fla. 3d DCA 2017). We therefore dismiss this portion
of the appeal as a premature appeal from a nonfinal order.
CONCLUSION
We dismiss, for lack of jurisdiction, that portion of the appeal which
challenges the trial court’s determination of entitlement (only) to attorney’s
fees, without prejudice to appealing from a final judgment that determines
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both entitlement and amount. In all other respects, we affirm the final
judgment of the trial court. 3
3
We find no merit in the former wife’s remaining claim that the trial court
abused its discretion in adopting the final judgment proposed by the former
husband, and affirm that claim without further discussion. See Empire World
Towers, LLC v. CDR Creances, S.A.S.,
89 So. 3d 1034, 1045 (Fla. 3d DCA
2012); Cabrera v. Cabrera,
987 So. 2d 753 (Fla. 3d DCA 2008); Bryan v.
Bryan,
930 So. 2d 693 (Fla. 3d DCA 2006).
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