# 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 Di G iacomo , 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

.2 The Wife appeals a final judgment of dissolution of marriage . She raises several cl aims on appeal. 1 While we find none of the claims ha ve merit, and affirm the final judgment, we write to address the Wife’s claim that the trial court abused its discretion in denying he r 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
year s , 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 ple adings in the dissolution action :

• October 24, 2017 : T he 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) fail ed 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 grant ing the Husband a credit for the carrying costs of the marital residence from the date of filing (September 2017) through the date of sale.3 • August 2, 2018 : T he Wife’s parental rights were terminated.

• January 21, 2019 : T he Husband filed a motion for leave to amend his petition.

• March 14, 2019 : T he 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 th at 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 : T he trial court entered an “agreed order granting Husband’s motion for le ave 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 : T he Husband filed an Amended Petition. Ten days passed without the Wife filing a response to the Amended Petition.

• May 8, 2019 : F ive 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 Wi fe’s motion was scheduled for July 29, 2019.4 • May 13, 2019 : A s 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 m onth.

• May 14, 2019 : T he trial court entered its Uniform Order s etting the case for nonjury t rial o n September 9, 2019.

• June 27, 2019 : N early three months past the deadline in the March 27 agreed order , the Wife filed her Answer to the A mended P etition. Her pleading did not include a counterpetition for alimony.

• June 28, 2019 : T he Husband filed a motion for continuance of the July 29 hearing (on the Wife’s motion for temporary alimony) because th at

“ 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 h earing date remaining unchanged.

• August 23, 2019 : T he Husband filed his Pretrial Catalogue.

• September 4, 2019 : F ive days before trial , the Wife filed her Pretrial Catalogue. In this pleading, t he W ife 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.”5 • 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 th ose portions relating to he r request for alimony.

• September 6, 2019 : T he 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 al imony. A proposed counterpetition was attached.

• September 9, 2019 : O n Monday, t rial commenced as scheduled, and the trial court addressed all pending motions, including t he Wife’s September 6 motion to amend her Answer to add a counterpetition for alim ony

. Following lengthy discussion and legal argument , t he trial court denied the Wife’s motion, not ing inter alia that it c ould not grant relief that

was not pled ; the Wife had been represented by counsel at all relevant times in th e proceeding s ; 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 pr ejudic e to the Husband. The proceedings conclude d on October 18, 2019; the parties presented closing argument , and the trial court entered final judgment. This appeal follows.6 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 b een 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 pa rty 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 otherwis e 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 just ice 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.7 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 considerin g 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 allo w 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 5 99, 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 Leas e 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 Aeree8 Italiane, S.p.A. , 212 So. 2d 109 (Fla. 3 d 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 a limony 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: r etaining a vocational expert to address imputation of income for the Wife who was unemployed; depos ing 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. 4 th DCA 2010) (finding no abuse of discretion in denying

“ the late

- filed motion to amend ” where t he plaintiffs sought to assert a claim for punitive damages on their breach of fiduciary duty and fraud claims “on9 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 “ liberalit y 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
t he 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 t he ele venth

- ho ur nature of the Wife’s motion, we find no abuse of discretion in t he 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 t he Wife’s earlier motion for temporary alimony somehow p ut the Husband on notice that the Wife was seeking post

- dissolution alimony. The Wife’s motion for temporary10 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 m arriage proceeding

. As the Wife’s motion correctly noted,

s ection 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 (Fl a. 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

- dissolutio n 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 t en weeks away, and the Husband was already paying the Wife $900 per month during the pend ency 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 a ctual 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 suppor t, 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 he r suit. ” )11 dissolution proceeding

. A r eview of t he W ife’s own motion , together with the Husband’s motion and the trial court’s order , support s the conclusion that the Husband did not anticipate , nor should he reasonably have anticipated , that the Wife w ould be seeking post

- dissolution alimony at the final hearing

. Because n either 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
T he trial court did not abuse its discretion in denying leave to amend to file a cou nterpetition 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.