       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                             FOURTH DISTRICT

                            STACY JAEGER,
                               Appellant,

                                    v.

                      ROBERT M. JAEGER, D.O.,
                             Appellee.

                             No. 4D15-1243

                          [December 16, 2015]

  Appeal of a non-final order from the Circuit Court for the Fifteenth
Judicial Circuit, Palm Beach County; Krista Marx, Judge; L.T. Case No.
2009DR013546NB.

   Lisa Marie Macci of Lisa Marie Macci, PA, Boca Raton, and Elizabeth J.
Kates, Pompano Beach, for appellant.

   Eddie Stephens and Allison Kapner of Ward, Damon, Posner, Pheterson
& Bleau, West Palm Beach, for appellee Ward, Damon, Posner, Pheterson
& Bleau.

  John D. Boykin of Ciklin Lubitz & O’Connell, West Palm Beach, for
appellee Ciklin Lubitz & O’Connell.

WARNER, J.

    The former wife challenges the trial court’s order granting a motion to
assert a charging lien against an award of undifferentiated family support
and denying her motion to release those funds to her. Concluding that
the magistrate had made a legal error in determining that an attorney’s
lien could not attach to the award, the court ordered the attorney’s lien
paid out of the lump sum award. We reverse because we hold that a
charging lien may not apply against an award of past due undifferentiated
support accruing during the pendency of the divorce proceedings.

   In the final judgment of dissolution, the trial court made a lump sum
award of undifferentiated family support for arrearages not paid during
the course of the proceedings. When the former husband paid sums on
that award, two of the former wife’s attorneys sought to impose charging
liens against it, and those monies were deposited partly with the clerk of
court and partly with the former husband’s attorney. The matter was set
before the general magistrate, who recommended denial of the charging
lien and found that the attorney’s charging lien could not attach to child
support. See Brake v. Sanchez-Lopez, 452 So. 2d 1071, 1072 (Fla. 3d DCA
1984). Because the former husband had failed to pay the undifferentiated
family support, he was not paying his share of the child support expenses,
and the former wife “had to pick up the slack and pay those expenses out
of her pocket.” She invaded assets and borrowed money. Thus, the
magistrate recommended that “[b]ecause the child support component of
the undifferentiated family support is so inextricably intertwined and not
capable of segregation, this Court concludes that the charging liens . . . do
not attach to the monies that have been paid . . . .”

   The magistrate made additional findings as to whether the charging lien
should attach to undifferentiated temporary family support, which would
include temporary spousal support. Noting that the lien would be
unenforceable against alimony to the extent that it deprives the spouse of
daily sustenance or the minimal necessities of life, see Dyer v. Dyer, 438
So. 2d 954, 955 (Fla. 4th DCA 1983), the magistrate found that the former
husband’s failure to make payments of the support during the dissolution
proceedings caused the former wife to borrow money and eliminate many
services. Her utilities have been cut off at times, and she has had to
borrow money to provide for her and her child. The magistrate concluded
that the monies were necessary for her “daily sustenance and the minimal
necessities of life.” The magistrate recommended that the motion for
immediate release of support monies to the former wife be granted.

    The attorneys filed objections to the magistrate’s report, contending
that the magistrate erred in concluding that, as a matter of law, a charging
lien could not be asserted against an award of undifferentiated family
support. They also claimed that the general master’s factual finding that
the former wife needed the support for daily sustenance was not supported
by competent substantial evidence.

   At a hearing before the trial court, the parties argued whether the
magistrate erred as a matter of law in determining that a charging lien
could not be asserted against an award of undifferentiated support. The
parties did not argue that the magistrate’s factual findings were not
supported by competent substantial evidence. The trial court granted the
attorneys’ objections, finding that the “magistrate made a legal error in
concluding charging liens do not apply to undifferentiated support
arrears[,]” relying on Albert v. Goldman-Link, P.A., 661 So. 2d 1293 (Fla.


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4th DCA 1995). The trial court then permitted disbursement to the
attorneys and denied immediate payment to the former wife. She appeals.1

    In Dyer, we held that “an attorney’s charging lien should not be
enforced against an award of permanent periodic alimony if to do so would
deprive a former spouse of daily sustenance or the minimal necessities of
life.” 438 So. 2d at 955. We noted that permanent periodic alimony can
serve multiple purposes:

      The usual purpose of permanent periodic alimony is “to
      provide the needs and the necessities of life to a former spouse
      . . . .” Canakaris v. Canakaris, [382 So. 2d 1197, 1201 (Fla.
      1980)]. But in Florida it is also permissible to use permanent
      periodic alimony as a vehicle “to do equity between the parties
      . . . .” Id. at 1202. Consequently, we do not believe that it is
      either appropriate or possible to formulate a rule which
      depends upon the label attached to a specified form of
      alimony. Rather, courts should be governed by the principle
      that “[e]quity, which creates the [alimony] fund, will not suffer
      its purpose to be nullified.” Turner v. Woolworth, 221 N.Y.
      425, 430, 117 N.E. 814, 816 (1917); cf. Fuqua v. Fuqua, 88
      Wash. 2d 100, 558 P.2d 801, 805 (1977).

Id. An award of temporary support, however, is different. It provides for
the needs and necessities of life of the spouse and children pending the
dissolution. See, e.g., Stern v. Stern, 907 So. 2d 701 (Fla. 4th DCA 2005).
Many times, such awards do not even cover all of the expenses of a party.
Additional equitable considerations are not included in such awards.
Thus, Dyer’s analysis regarding awards of permanent alimony is not
applicable to awards of temporary support, as all that is included in such
awards are the needs and necessities of life for the spouse and family.

   Dyer cited to Fuqua for support. Dyer, 438 So. 2d at 955. Fuqua
discusses both the unavailability of a charging lien against awards of back
child support as well as an award consisting of commingled back alimony
and child support—in other words, an undifferentiated award. 558 P.2d
at 804-06. As to the back child support, the court said:

      We see no reason to allow assertion of a lien against support
      monies which are, after long delay, made available to children

1 This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure
9.130(a)(3)(c)(ii).


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      who have been deprived of the benefit of adequate support on
      a regular basis. The fact that such children may have
      managed to get along, though deprived of adequate support
      for some time, certainly does not compel the conclusion that
      those support monies are in any way less important to the
      welfare of the children involved than they were at the time
      awarded. Indeed, it is quite likely that the back support would
      be needed to satisfy indebtedness incurred by the custodian
      on behalf of the family during the period in which the family
      was without adequate support.

Fuqua, 558 P. 2d at 805-06. In discussing the judgment for combined
back alimony and child support, the court said:

      [T]he trial court concluded that those funds were commingled
      and not readily severable. Once having determined that an
      attorney’s lien could not be asserted against child support, the
      trial court concluded that the lien in question, even if
      purportedly limited in its application to maintenance alone,
      could not properly be asserted against any portion of the
      commingled fund. We find the trial court’s conclusion that
      this fund was not readily severable to be amply supported by
      the record. We also agree that an attorney’s lien may not be
      asserted against any portion of funds paid in satisfaction of a
      judgment which includes commingled child support.

Id. at 806 (emphasis added); see also Minor Child of Zentack v. Strong, 614
N.E.2d 1106 (Ohio Ct. App. 1992). We agree with the conclusion of these
courts, particularly where the award, as in this case, includes only back-
due amounts for temporary child support and alimony pending the final
judgment, and therefore would not include any amounts other than what
was established as the needs and necessities of the spouse and children.

   The reasoning of the magistrate was in accord with the foregoing
authorities. The trial court’s rejection of that reasoning was error.

    Even if the charging lien could have been enforced against that portion
of the undifferentiated award which constituted alimony, the magistrate
also found that the award was for the necessities of life for the spouse. “A
trial court is bound by a master’s factual findings and recommendations
unless they are clearly unsupported by the evidence and clearly
erroneous.” Glaister v. Glaister, 137 So. 3d 513, 516 (Fla. 4th DCA 2014)
(quoting Linn v. Linn, 523 So. 2d 642, 643 (Fla. 4th DCA 1988)). Although


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the trial court did not reject the magistrate’s findings of fact, there was
competent substantial evidence to support them.

    The trial court relied on Albert v. Goldman-Link, P.A., 661 So. 2d 1293
(Fla. 4th DCA 1995), to support the determination that undifferentiated
awards could be subject to a charging lien. This case is inapposite. We
affirmed the trial court’s grant of a charging lien, but it is unclear from the
opinion that an undifferentiated award was involved. All the opinion states
is that the attorney obtained a charging lien for representing the client in
an action for alimony and child support arrearages. Id. at 1294. It does
not state that the award obtained was undifferentiated. As there was no
transcript of proceedings, we simply found that we could not determine
whether evidence was taken or on what grounds the lien was imposed. Id.
We were thus required to affirm. The case has no precedential value to
the issue presented here.

   For the foregoing reasons, we reverse the trial court’s denial of
immediate release of funds to the former spouse. We remand for
proceedings consistent with this opinion.

STEVENSON and LEVINE, JJ., concur.

                             *        *         *

   Not final until disposition of timely filed motion for rehearing.




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