       Third District Court of Appeal
                               State of Florida

                            Opinion filed June 6, 2018.
         Not final until disposition of timely filed motion for rehearing.

                               ________________

                               No. 3D17-1746
                         Lower Tribunal No. 16-29823
                             ________________


                      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 un-
     reasonable, 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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