       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                              FOURTH DISTRICT

                        LISA MARIE MACCI, P.A.,
                               Appellant,

                                     v.

          STACY D. JAEGER and ROBERT M. JAEGER, D.O.,
                           Appellees.

                              No. 4D16-2838

                            [December 6, 2017]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Howard K. Coates, Judge; L.T. Case No.
2009DR013546XXXXNB.

   Lisa Marie Macci of Lisa Marie Macci, P.A., Boca Raton, for appellant.

   Stacy D. Jaeger, Wellington, pro se.

   Rick Ruz, Coral Gables, for appellee Robert M. Jaeger.

GERBER, C.J.

   The former wife’s attorney appeals from the circuit court’s final order
essentially denying the attorney’s motion to enforce a retaining lien against
the former husband’s undifferentiated arrearage of both alimony and child
support held in the attorney’s trust account. We affirm.

   The former wife’s attorney’s agreement to provide legal services in the
former wife’s dissolution action stated, in pertinent part:

      It is specifically agreed that the Law Firm shall have and is
      hereby granted all general, possessory and retaining liens and
      all equitable, special and attorney’s charging liens upon the
      client’s interest in any and all real, personal and intangible
      property within the jurisdiction of the court for any balance
      due, owing and unpaid and such lien or liens shall be related
      back to the date of this agreement and shall be superior in
      dignity to any other lien subsequent to the date hereof.
   The former husband became delinquent on alimony and child support.
The former wife’s attorney provided services towards obtaining the
arrearage, which the former husband deposited into the former wife’s
attorney’s trust account. The former husband’s deposit of the arrearage
was not differentiated between the alimony and child support.

   The former wife’s attorney then sought to enforce a retaining lien
against the undifferentiated arrearage held in her trust account. However,
a magistrate recommended that the circuit court order the former wife’s
attorney to release the undifferentiated arrearage to the former wife.

    The former wife’s attorney filed an exception to the magistrate’s report
and recommendation. The attorney again sought to enforce a retaining
lien against the undifferentiated arrearage held in her trust account.

   The circuit court accepted the magistrate’s report and
recommendation, and denied the former wife’s attorney’s motion to enforce
the retaining lien. The circuit court’s ruling relied upon an earlier opinion
which we issued in this dissolution action, holding that “a charging lien
may not apply against an award of past due undifferentiated support
accruing during the pendency of the divorce proceedings.” Jaeger v.
Jaeger, 182 So. 3d 697, 698 (Fla. 4th DCA 2015) (“Jaeger I”). The circuit
court concluded that our holding on the charging lien also should apply to
a retaining lien.

   This appeal followed. The former wife’s attorney argues that the court
erred in relying on our holding in Jaeger I, because no case prohibits an
attorney from applying a retaining lien against undifferentiated support.

   In response, the former wife and the former husband argue that the
reasons for prohibiting an attorney from applying a charging lien against
undifferentiated support also should prohibit an attorney from applying a
retaining lien against undifferentiated support.

    We agree with the former wife and the former husband. In Jaeger I, we
relied on Fuqua v. Fuqua, 558 P.2d 801 (Wash. 1977), for the following
reasoning, which remains applicable here:

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

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      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.

      ....

      [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 805-06.

   Similar to our holding in Jaeger I, even if the retaining lien could have
been enforced against that portion of the undifferentiated arrearage 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 [magistrate’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) (citation omitted). Although the
circuit court did not reject the magistrate’s findings of fact, competent
substantial evidence supported the magistrate’s findings.

   Based on the foregoing, we affirm the circuit court’s acceptance of the
magistrate’s report and recommendation, and denial of the former wife’s
attorney’s motion to enforce a retaining lien against the undifferentiated
arrearage.

   Affirmed.

MAY and LEVINE, JJ., concur.

                             *        *         *


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Not final until disposition of timely filed motion for rehearing.




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