Divorce, Florida Style

by Michael H. Gora, Esquire

Q. Five (5) years after a final divorce judgment was entered in my case, my wife and her attorney decided that they did not understand part of the Judge’s decision. I had received residential parenting of my son and exclusive use and occupancy of our home.

The question is, whether the exclusive use clause was to end when our son was eighteen years old, when he graduated from high school, six (6) months later, or when he graduates from college.

The language in the Final Judgment was somewhat ambiguous. Her lawyer filed a Motion for Clarification of the Final Judgment. It was filed in Circuit Court in Palm Beach County and was assigned to the same division of the court in Delray Beach, in which our trial had taken place.

The Judge who had heard the evidence at trial, and written the decision had rotated back to a criminal division of the Circuit Court in West Palm Beach. The current Judge was as confused as we were about the meaning of the language.
She re-set the hearing two (2) weeks from now, and said she would get the former Judge on the phone, and based upon what he said, and argument of counsel, she would decide the issue.

My lawyer objected to the procedure, but was overruled. I don’t want to go through this whole procedure and wind up with the losing side appealing the matter, and costing more fees. Although my lawyer told me that an appeal would take most of a year, and delay the ultimate outcome, it would not be worth the price and aggravation.

Should the present Judge consult with the former Judge on this issue? On the one hand, it seems reasonable; on the other hand, everyone seems a bit uncertain as to the legality of the process.

A. There is no authorization for the procedure you have explained in any statute, rule, or case law in Florida. There is a 2005 case, from our appellate court, that prohibits such procedure.

In that case, the appellate court ruled that the Florida Rules of Civil Procedure govern the clarification of an existing judgment.

While, the rules allowing a sitting judge to clarify an otherwise ambiguous Final Judgment, it contained no provision that a former Judge could assist in the decision.

There is a large body of law under contract cases, which describe factors that should be taken into consideration by a Judge who has been asked to interpret, or clarify language in a contract between two (2) or more parties. The sitting Judge should apply those principles here.

Those cases discuss the application of principles of consistency with other parts of the same contract, reasonableness and an interpretation, which are consistent with the normal result in the trade or industry.

Under some cases, the appellate decisions have upheld lower court decisions that merely found no ambiguity, and describe “the clear meaning of the agreement”.

It might be best to try to compromise an agreed date between you and your Former Wife, before the hearing. If not, both lawyers should try to talk the Judge out of committing certain error, by asking the prior Judge’s advice.

Michael H. Gora, Esquire, has been certified by the Board of Legal Specialization of the Florida Bar as a specialist in the family and matrimonial law and is a partner with Shapiro Blasi Wasserman & Gora, P.A.in Boca Raton, Florida.