Date: 07-17-2015

Case Style: Celeste Rossi v. George F. Rossi

Case Number: 5D14-4634

Judge: Wallis

Court: Florida Court of Appeals, Fifth District on appeal from the Circuit Court, Brevard County

Plaintiff's Attorney: Joe Teague Caruso

Defendant's Attorney: No Appearance

Description: Appellant, Celeste Rossi ("Former Wife"), appeals the trial court's final judgment,
which adopted the report and recommendation ("Report") previously entered by a general
magistrate. On appeal, Former Wife argues that the trial court erred by: (1) failing to treat
her unauthorized motion for rehearing on the Report as an authorized list of exceptions;
(2) ruling that the motion for rehearing did not toll the time to file a list of exceptions; and
(3) adopting the Report despite the magistrate's failure to justify the grossly unequal
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distribution of marital assets in favor of Appellee, George F. Rossi ("Former Husband").
We agree with Former Wife that the trial court should have considered the content of the
improperly labeled motion for rehearing and treated the motion as a list of exceptions.
We therefore reverse the final judgment and remand for further proceedings. Because
we reverse the trial court's treatment of Former Wife's motion for rehearing, we need not
address whether the motion tolled the time to file a list of exceptions or whether the
magistrate erred in recommending the unequal distribution. We do, however, call
attention to numerous unsupported conclusions in the magistrate's Report.
Following a lengthy hearing on the parties' dissolution of marriage, the magistrate
entered the July 21, 2014 Report, which included numerous findings concerning the
parties' circumstances and distributed the marital assets. The magistrate found Former
Husband's expenses were minimal, with medical expenses of only $211 per month
despite his ongoing cancer treatment, and that the parties began liquidating retirement
accounts in 2008 to pay for household expenses. The Report contained numerous
findings concerning the parties' $1,400,000 coin collection, which constituted the bulk of
marital assets. The magistrate included no findings as to the source of funds used to
purchase the coins but implied that both parties' salaries contributed to the collection and
found that Former Husband "continued to invest in the coin collection" even after his
cancer diagnosis and the liquidation of the parties' retirement accounts. The Report
accepted Former Wife's testimony that Former Husband had "secreted" most of the coin
collection away without informing the trial court or Former Wife. Despite rejecting Former
Husband's testimony and concluding that he had engaged in continuous efforts to
surreptitiously sell or hide the coins, the magistrate nevertheless recommended an
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unequal distribution of $489,561.98 to Former Wife and $1,423,553 to Former Husband.1
The only justification for the unequal distribution provided in the Report consisted of the
following paragraph:
This distribution is unequal, and favors the Husband.
Although it is unequal, it is equitable under the circumstances
of this case, based on the following factors: the Husband's
age[2] and health, and his contributions to the acquisition of
the coin collection. In addition, the Husband is uniquely
qualified to sell, invest or trade the remaining inventory.
The Report included no mention—much less analysis—of the factors enumerated in
section 61.075(1), Florida Statutes (2013).3
On July 30, 2014—nine days after the magistrate issued the Report—Former Wife
filed a motion for rehearing, arguing that the unequal distribution recommended in the
Report was contrary to undisputed facts and unsupported by law. On August 5, 2014,
the magistrate issued a recommendation for the trial court to enter final judgment,
notwithstanding Former Wife's motion for rehearing, concluding that any review of the
Report "must be by way of exceptions" filed under Florida Family Law Rule of Procedure
1 The magistrate's calculation of the parties' distributions included a finding that
Former Wife paid several marital credit card debts. Despite clear evidence in the record
that Former Wife paid one debt in the amount of $20,813.35, the Report credits Former
Wife with a payment of only $1,072.16.
2 Although the magistrate partially justified the unequal distribution based on the
parties' ages, Former Husband is only two years older than Former Wife.
3 A trial court must justify an unequal distribution with findings after "'all relevant
factors' have been considered, including the factors contained in section 61.075(1)(a-j)."
Watson v. Watson, 124 So. 3d 340, 342-43 (Fla. 1st DCA 2013) (quoting § 61.075(1),
Fla. Stat.)). Here, although the magistrate arguably included findings pertinent to—but
not referencing—several of the factors enumerated in section 61.075(1), the Report
clearly omits discussion of subsections 61.075(1)(a), (d), and (e). "[A] trial court's failure
to address and reference the factors mandated by sections 61.075(1)(a)-[(j)], Florida
Statutes[,] is reversible error." Becker v. Becker, 639 So. 2d 1082, 1083 (Fla. 5th DCA
1994) (citing McMonagle v. McMonagle, 617 So. 2d 373 (Fla. 5th DCA 1993)).
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12.490. On August 11, 2014, Former Wife filed a list of exceptions to the Report. Her list
of exceptions is substantially identical to the earlier motion for rehearing, differing only in
the document's title and the inclusion of post-July 30 procedural developments. In several
rulings and at an October 16, 2014 hearing, the trial court found no issue with the
substantive content of Former Wife's list of exceptions; rather, it addressed whether the
list was timely filed and whether Former Wife was required to file a transcript of prior
hearings.
On November 5, 2014, the trial court issued the final judgment, concluding that
Former Wife's motion for rehearing was not an authorized motion under rule 12.490 and
that the list of exceptions was not timely filed within ten days of service of the Report. In
the final judgment, the trial court adopted the Report without modification, finding that the
"[m]agistrate's findings and recommendations were supported by competent and
substantial evidence" and that the "[m]agistrate properly applied and took into
consideration the appropriate factors required in Chapter 61, Florida Statutes, and as
outlined in Adams v. Adams, 677 So. 2d 6 (Fla. 5th DCA 1996) in determining the alimony
and equitable distribution issues between the parties."
A trial court's determination that a motion or other filing is improper, as labeled, is
a question of law and is accordingly reviewed de novo. See Magnum Towing, Inc. v.
Sunbeam Television Corp., 781 So. 2d 379, 380 (Fla. 3d DCA 1998). Where it is apparent
that an improperly-labeled motion is "intended to operate" as an authorized motion, an
appellate court must consider the motion as if it were properly labeled. Olson v. Olson,
704 So. 2d 208, 210 (Fla. 5th DCA 1998); see also Cardiosonx Labs., Inc. v. Aguadilla
Med. Servs., Inc., 100 So. 3d 285, 287 n.1 (Fla. 3d DCA 2012); Magnum Towing, Inc.,
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781 So. 2d at 380. Where a party files a motion that would be unauthorized based on the
motion's title, Florida courts will consider the motion's substance in determining whether
the motion was authorized. IndyMac Fed. Bank FSB v. Hagan, 104 So. 3d 1232, 1236
(Fla. 3d DCA 2012) ("With respect to the characterization of motions, Florida courts place
substance over form. In other words, 'if the motion is mislabeled, the court will look to the
substance of the motion, not the label.'" (quoting Indus. Affiliates, Ltd. v. Testa, 770 So.
2d 202, 204 n.1 (Fla. 3d DCA 2000))). The mislabeling of a motion will not preclude
consideration. Olson, 704 So. 2d at 210; Estate of Willis v. Gaffney, 677 So. 2d 949, 951
(Fla. 2d DCA 1996).
In the instant case, the trial court found no issue with the substantive content of
Former Wife's list of exceptions. That finding necessarily implies that the substantive
content of the motion for rehearing—which was identical to the list of exceptions—was
also sufficient. Therefore, the trial court should have treated Former Wife's unauthorized
motion for rehearing as an authorized list of exceptions and should have held a hearing
on the magistrate's Report. See Collado v. Pavlow, 951 So. 2d 69, 70 (Fla. 5th DCA
2007). Accordingly, we reverse the trial court's entry of final judgment and remand for a
hearing on Former Wife's list of exceptions to the magistrate's Report.

Outcome: REVERSED and REMANDED with INSTRUCTIONS.

Plaintiff's Experts:

Defendant's Experts:

Comments: