Third District Court of Appeal
State of Florida
Opinion filed June 6, 2018.
Not final until disposition of timely filed motion for rehearing.
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No. 3D17-1746
Lower Tribunal No. 16-29823
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Gerardo Vito Roca Rodriguez,
Appellant,
vs.
Aura Yolanda Roca,
Appellee.
An appeal from a non-final order from the Circuit Court for Miami-Dade
County, Bernard S. Shapiro, Judge.
Abogados W, and Milvia Sierra, for appellant.
Aura Yolanda Roca, in proper person.
Before SUAREZ, FERNANDEZ, and LINDSEY, JJ.
SUAREZ, J.
Gerardo Roca (“Husband”) appeals from the trial court’s non-final order
granting Aura Yolanda Roca’s (“Wife”) motion to vacate and amend the parties’
marital settlement agreement (“MSA”). We vacate the non-final order and remand
for an evidentiary hearing pursuant to Casto v. Casto, 508 So. 2d 330, 333 (Fla.
1987).
The parties were married in 1997, and have two minor children. In
December 2016, the Husband filed for uncontested dissolution of marriage. The
petition was a form Petition for Dissolution from the Family Court Self-Help
Program, provided by a private notary public who assisted the parties in filling out
the form. That form, along with the MSA, provided for splitting marital property,
distribution of debts, child support, no alimony, and parental time-sharing. The
form was signed by both parties and notarized. When the parties went to the
courthouse and the Family Court clerk examined the documents prior to filing, the
Wife indicated she did not agree with the “no alimony” provision of the MSA and
allegedly the clerk made a notation to that effect. That document, however, was
not filed. The original document that indicated “no alimony” was filed. The Wife
then filed a motion to vacate the MSA.
At the hearing on the Wife’s motion to vacate, the trial court heard
testimony from the notary who helped the couple prepare the Petition and
Settlement document, and heard testimony from the Husband. The notary testified
that she did not speak English well, but could read and write English well. She
testified that she translated the MSA document from English into Spanish so that
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the couple could better understand. The implication is that she helped them fill out
the form, then notarized it. This is the document that indicates both parties waive
alimony, and the document that was eventually filed with the court. At the end of
the hearing, the judge vacated the MSA and granted the Wife’s motion to amend
based on the judge’s determination that the notary was “probably practicing law
without a license” and that “I’m not going to accept an agreement by a notary that
doesn’t speak English, I’m not convinced that all three people involved knew what
was going on.” When asked by Petitioner’s counsel to make a factual finding on
the record of fraud or duress, the judge said, “I just did.” The Husband appeals.
To set aside a post-nuptial Marital Settlement Agreement, the trial court
must make two inquiries. First, a spouse may set aside or modify an agreement by
establishing that it was reached under fraud, deceit, duress, coercion,
misrepresentation, or overreaching. Casto, 508 So. 2d at 333.
Then,
[t]he second ground to vacate a settlement agreement contains multiple
elements. Initially, the challenging spouse must establish that the
agreement makes an unfair or unreasonable provision for that spouse,
given the circumstances of the parties. To establish that an agreement
is unreasonable, the challenging spouse must present evidence of the
parties' relative situations, including their respective ages, health,
education, and financial status. With this basic information, a trial
court may determine that the agreement, on its face, does not
adequately provide for the challenging spouse and, consequently, is
unreasonable. In making this determination, the trial court must find
that the agreement is “disproportionate to the means” of the defending
spouse. This finding requires some evidence in the record to establish
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a defending spouse's financial means. Additional evidence other than
the basic financial information may be necessary to establish the
unreasonableness of the agreement.
Once the claiming spouse establishes that the agreement is unreasonable, a presumption arises that there was either concealment by
the defending spouse or a presumed lack of knowledge by the
challenging spouse of the defending spouse's finances at the time the
agreement was reached. The burden then shifts to the defending
spouse, who may rebut these presumptions by showing that there was
either (a) a full, frank disclosure to the challenging spouse by the
defending spouse before the signing of the agreement relative to the
value of all the marital property and the income of the parties, or (b) a
general and approximate knowledge by the challenging spouse of the
character and extent of the marital property sufficient to obtain a value
by reasonable means, as well as a general knowledge of the income of
the parties. The test in this regard is the adequacy of the challenging
spouse's knowledge at the time of the agreement and whether the
challenging spouse is prejudiced by the lack of information.
Id. at 333 (citations omitted) (emphasis added). None of this analysis occurred
below. In fact, the transcript of the hearing on the Wife’s motion to vacate the
MSA fails to establish any evidence of fraud, duress, coercion, deceit,
misrepresentation or overreaching. There is also no financial information, no
suggestion that the arrangement is unfair. At the time the MSA was filed, neither
party was represented by counsel. It is contrary to the sworn testimony of the
notary to conclude that she was practicing law without a license or gave the couple
legal advice of any sort. The record does not suggest or establish that. As stated in
Casto,
[t]he fact that one party to the agreement apparently made a bad
bargain is not a sufficient ground, by itself, to vacate or modify a
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settlement agreement. The critical test in determining the validity of
marital agreements is whether there was fraud or overreaching on one
side, or, assuming unreasonableness, whether the challenging spouse
did not have adequate knowledge of the marital property and income
of the parties at the time the agreement was reached. . . . Courts,
however, must recognize that parties to a marriage are not dealing at
arm's length, and, consequently, trial judges must carefully examine
the circumstances to determine the validity of these agreements.
Id. at 334 (emphasis added).
Because there is no finding in either the record or the order on appeal
whether any of the Casto elements were presented and analyzed, we vacate the
order below and remand with directions to hold an evidentiary hearing and render
subsequent written findings that comport with the analysis set forth in Casto.
Order vacated; remanded for evidentiary hearing.
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