DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

LUCIO APONTE,

Appellant,

v.

MARIA H. WOOD,

Appellee.

No. 4D19-3370

[December 16, 2020]

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm 

Beach County; Samantha Schosberg Feuer, Judge; L.T. Case No. 50-2018-

DR-004231-XXXX-SB.

Jordan B. Abramowitz of Abramowitz and Associates, Coral Gables, for 

appellant.

Stacey D. Mullins of GrayRobinson, P.A., Boca Raton, for appellee.

FORST, J.

Appellant Lucio Aponte (“Husband”) appeals from the trial court’s entry 

of default final judgment in favor of Appellee Maria H. Wood (“Wife”) in a 

dissolution of marriage proceeding. Husband raises three arguments on 

appeal: (1) that the trial court erred in entering default final judgment 

without a finding of willful noncompliance; (2) that the trial court failed to 

comply with Florida Family Law Rule of Procedure 12.440 in setting the 

dissolution action for trial; and (3) that the trial court failed to make 

statutorily required findings of fact under section 61.075, Florida Statutes 

(2019). As to Husband’s first and third arguments, we agree and therefore 

reverse and remand for further proceedings, as addressed below. As we 

find reversal necessary based on these arguments alone, we need not 

address the trial court’s alleged failure to comply with rule 12.440.

Background

Wife filed a “Petition for Dissolution of Marriage and Other Relief”

(“Petition”), seeking to dissolve her marriage with Husband and to 

equitably distribute the parties’ marital assets and liabilities under section 
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61.075. Husband filed what appears to be an answer, acknowledging that 

the marriage was irretrievably broken and stating that he did not oppose 

dissolution. However, Husband sought clarification as to Wife’s request 

for the equitable distribution of assets and liabilities.

Wife’s Motion to Compel. Several months after receipt of Husband’s 

answer, Wife filed a Family Law Financial Affidavit, and—following

Husband’s failure to file his own financial affidavit—Wife filed a “Motion to 

Compel [Husband’s] Compliance with Mandatory Disclosure Rule 12.285.” 

Husband responded to this motion with documentation written entirely in 

Italian. After Wife filed an Amended Family Law Financial Affidavit, the 

trial court entered an order granting Wife’s motion to compel, giving 

Husband ten days to comply with Florida Family Law Rule of Procedure 

12.285. Husband timely replied to this motion, again in Italian. 

Wife’s Motion for Default is filed and granted. Wife next filed a motion 

for default, alleging that Husband failed to comply with mandatory 

disclosure rule 12.285. Less than a week later, Husband filed yet another 

response written entirely in Italian. Thereafter, the trial court entered an 

order granting Wife’s motion for default, giving Husband “twenty (20) days 

to comply with mandatory disclosure” and allowing Wife to “proceed with 

a Motion for Default Final Judgment” if Husband did not comply.

Wife’s Motion for Default Final Judgment. Husband again timely 

responded to the trial court’s order. However, once again Husband’s

response was written entirely in Italian. Consequently, Wife filed a “Motion 

for Entry of a Default Final Judgment,” alleging that Husband failed to 

comply with the trial court’s order granting the motion for default. Wife 

served Husband with notice of the hearing on her motion.

During the final hearing—which lasted three minutes and for which 

only Wife and her attorney were present—the trial court noted that 

Husband “didn’t comply with the mandatory disclosures” and that 

Husband “hasn’t really participated at all in the past.” Accordingly, the 

trial court dissolved the parties’ marriage, stating its intention to enter a 

default final judgment.

Default Final Judgment. Following the above-noted hearing, the trial 

court entered a detailed “Default Final Judgment of Dissolution of 

Marriage” (“Default Final Judgment”). This order found Husband in 

default for his failure to comply with rule 12.285’s mandatory disclosure 

obligations; distributed the parties’ assets and liabilities; and reduced the 

parties’ marital dissolution to writing. 
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The following day, Husband filed a response in Italian to both Wife’s 

motion for entry of a default final judgment and the trial court’s Default 

Final Judgment. No further action was taken by the trial court. Husband 

timely filed the instant appeal.

Analysis

A. The Entry of Default

This Court reviews a trial court’s “discretion to order dismissal or 

default for failure to comply with discovery requirements” under an abuse 

of discretion standard. Commonwealth Fed. Savs. & Loan Ass’n v. Tubero, 

569 So. 2d 1271, 1273 (Fla. 1990). 

“[E]ntering a default for noncompliance with an order compelling 

discovery is the most severe of all sanctions which should be employed 

only in extreme circumstances.” Mercer v. Raine, 443 So. 2d 944, 946 (Fla. 

1983). Dismissal or default based on a discovery violation is a per se abuse 

of discretion “where the trial court fails to make express written findings 

of fact supporting the conclusion that the failure to obey the court order 

demonstrated willful or deliberate disregard.” Ham v. Dunmire, 891 So. 2d 

492, 495 (Fla. 2004). Although no magic words are required, there must 

be a “finding that the conduct upon which the order is based was 

equivalent to willfulness or deliberate disregard” of the court’s authority. 

Tubero, 569 So. 2d at 1273.

Here, the trial court granted Wife’s motion for default and entered a 

default final judgment against Husband for his failure to comply with rule 

12.285, which requires the filing of a financial affidavit. See Fla. Fam. L. 

R. P. 12.285(e)(1). However, neither the order granting Wife’s motion for 

default nor the Default Final Judgment contained an express written 

finding of willful or deliberate disregard. Nor did the trial court make any 

such finding at the final hearing or in any other prior order. 

“[A] determination and finding[] of willful or deliberate disregard of a 

court’s authority” as a prerequisite for default or dismissal is mandated by 

Mercer and Ham. Ledo v. Seavie Res., LLC, 149 So. 3d 707, 710 (Fla. 3d 

DCA 2014). Accordingly, the trial court erred in entering default absent 

this determination and finding.

Nonetheless, Wife asserts that, regardless of the merits of Husband’s 

claim, his argument is not properly preserved due to the absence of a 

motion for rehearing. We disagree. In Fox v. Fox, 262 So. 3d 789 (Fla. 4th 

DCA 2018), we held—en banc—that a motion for rehearing is not required 
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“to preserve the issue of a trial court’s failure to make statutorily-required 

findings in alimony, equitable distribution, and child support” 

proceedings.1 Id. at 793. In so holding, we noted that marriage dissolution 

cases are unlike other cases and that “[r]equiring a motion for rehearing 

is a rule that is too restrictive and imprecise to operate fairly where 

children and families are the focus.” Id. at 793–94.

Subsequently, in Perez v. Borga, 283 So. 3d 815 (Fla. 4th DCA 2019), 

we held “that the same rationale in Fox extends to a final order of contempt 

stemming from the failure to pay court ordered alimony.” Id. at 816–17. 

In that case, we found reversible error in the trial court’s failure to make 

a “separate, affirmative finding of present ability to pay the purge 

amount[,]” despite “well settled law” (comprised of both case law and the 

Florida Family Law Rules of Procedure) that mandated such a finding 

when imposing incarceration as a sanction. Id. at 816. 

Here, as in Perez, the trial court failed to make a requisite finding in a 

family law proceeding involving alimony, equitable distribution, or child 

support, despite “well settled law” requiring such. As we stated in Fox, 

“the preservation rules were not designed to allow a trial court to ignore [] 

requirements of which it should be aware.” Fox, 262 So. 3d at 794.2 

B. Equitable Distribution

We review a trial court’s determination of equitable distribution under 

an abuse of discretion standard. Bardowell v. Bardowell, 975 So. 2d 628, 

629 (Fla. 4th DCA 2008). However, “a trial court’s failure to consider 

mandatory statutory factors is error as a matter of law.” Callwood v. 

Callwood, 221 So. 3d 1198, 1201 (Fla. 4th DCA 2017).

Pursuant to section 61.075(3), Florida Statutes (2019), “[i]n any 

contested dissolution action wherein a stipulation and agreement has not 

been entered and filed, any distribution of marital assets or marital 

liabilities shall be supported by factual findings in the judgment or order 

based on competent substantial evidence with reference to the factors 

enumerated in subsection (1).” § 61.075(3), Fla. Stat. These factors 

1 In light of Fox, we need not address whether Husband’s filings (albeit in Italian) 

one day after entry of the Default Final Judgment constitute a timely motion for 

rehearing. 

2 The two cases relied upon by Wife in her failure-to-preserve argument, Bank of 

America, N.A. v. Ribaudo, 199 So. 3d 407 (Fla. 4th DCA 2016), and Bank of New 

York Mellon v. Sandhill, 202 So. 3d 944 (Fla. 5th DCA 2016), are distinguishable 

as neither involved marriage dissolution proceedings, and both pre-date Fox. 
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include the contribution to the marriage by each spouse, the economic 

circumstances of the parties, and the duration of the marriage, among 

others. § 61.075(1)(a)–(j), Fla. Stat. “Reversible error occurs where ‘the 

equitable distribution in the final judgment is not supported by factual 

findings with reference to the factors listed in section 61.075(1), as 

required by section 61.075(3) when a stipulation and agreement has not 

been entered and filed.’” Callwood, 221 So. 3d at 1201 (quoting 

Richardson v. Knight, 197 So. 3d 143, 146 (Fla. 4th DCA 2016)). Section 

61.075(3) imposes the following requirement on trial courts:

The distribution of all marital assets and marital liabilities, 

whether equal or unequal, shall include specific written 

findings of fact as to the following:

(a) Clear identification of nonmarital assets and ownership 

interests;

(b) Identification of marital assets, including the individual 

valuation of significant assets, and designation of which 

spouse shall be entitled to each asset;

(c) Identification of the marital liabilities and designation of 

which spouse shall be responsible for each liability;

(d) Any other findings necessary to advise the parties or the 

reviewing court of the trial court's rationale for the 

distribution of marital assets and allocation of liabilities.

§ 61.075(3)(b)-(d), Fla. Stat. (2019). Thus, a trial court errs by failing to 

make “written findings identifying and assigning values to the marital 

assets and liabilities.” Dorsett v. Dorsett, 902 So. 2d 947, 954 (Fla. 4th 

DCA 2005). However, “[a] trial judge has no duty under section 61.075 to 

make findings of value if the parties have not presented any evidence on 

that issue.” Aguirre v. Aguirre, 985 So. 2d 1203, 1207 (Fla. 4th DCA 2008). 

That is not the case here.

The instant case constitutes a contested dissolution action (at least 

with respect to equitable distribution) in which no stipulation or agreement 

has been entered. The Default Final Judgment does not sufficiently 

reference the ten factors enumerated in section 61.075(1). Additionally, 

although the Default Final Judgment distributes real property, financial 

accounts, business interests, and liabilities, there is no clear reference to 

marital and nonmartial assets and liabilities, or valuations as to any 

assets. 
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Wife’s Answer Brief concedes that “the trial court’s failure to make 

specific factual findings that are required by statute as set forth in chapter 

61 is reversible error and requires remand for appropriate findings to be 

made.” We agree. The trial court’s failure to make factual findings in 

reference to the ten factors in section 61.075(1), and the lack of written 

findings clearly identifying the values of marital and nonmarital assets and 

liabilities, constitute trial court error as a matter of law, requiring reversal.

Conclusion

The trial court erred in entering default final judgment without the 

requisite determination and findings per Mercer/Ham, and further erred 

in failing to make the necessary findings under section 61.075, Florida 

Statutes (2019). We therefore reverse and remand for the trial court to 

“reconsider the [default] imposed in order to determine whether there was 

a deliberate or willful disregard of the discovery order.” Tubero v. 

Chapnich, 552 So. 2d 932, 935 (Fla. 4th DCA 1989), aff’d sub nom.

Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So. 2d 1271 (Fla. 

1990). We also reverse and remand for the trial court to enter the 

appropriate written findings under sections 61.075(1) and (3) after the trial 

court properly disposes of the default issue. However, because neither 

party challenges the dissolution of marriage itself, we do not disturb the 

trial court’s final judgment insofar as it grants dissolution. See Barrichi v. 

Barry, 137 So. 3d 1196, 1198 (Fla. 2d DCA 2014).

We note that English is the official language of the State of Florida. Art. 

II, § 9, Fla. Const. Husband must file all pleadings in English for the court 

to properly consider their merits. 

Reversed and remanded for proceedings consistent with this opinion.

DAMOORGIAN and CIKLIN, JJ., concur.

* * *

Not final until disposition of timely filed motion for rehearing.