       Third District Court of Appeal
                               State of Florida

                           Opinion filed April 24, 2019.
         Not final until disposition of timely filed motion for rehearing.
                               ________________

                               No. 3D17-1990
                         Lower Tribunal No. 14-28193
                             ________________


                            Jorge Luis de Diego,
                                    Appellant,

                                        vs.

                                Janai Barrios,
                                    Appellee.


    An Appeal from the Circuit Court for Miami-Dade County, Valerie R.
Manno Schurr, Judge.

     Francisco J. Vargas, P.A., and Francisco J. Vargas; Giel Family Law, P.A.,
and Michael M. Giel (Jacksonville), for appellant.

      Isenberg Family Law Group, and Douglas Isenberg and Erica Whittler, for
appellee.


Before EMAS, C.J., and FERNANDEZ, J., and LAGOA, Associate Judge.

      PER CURIAM.
      Jorge Luis de Diego (“Former Husband”) appeals from two orders: (1) the

trial court’s order imposing an equitable lien in favor of Janai Barrios (“Former

Wife”) on the parties’ marital home that Former Husband claims as homestead

property; and (2) the trial court’s order denying Former Husband’s motion to

disqualify the trial judge. We affirm the trial court’s denial of the motion for

disqualification without further discussion. However, for the reasons discussed

below, we reverse the trial court’s order imposing the equitable lien.

I.    FACTUAL AND PROCEDURAL BACKGROUND

      Former Husband and Former Wife were married in June 2004 and have two

minor children from their marriage. In June 2014, Former Wife petitioned for

dissolution of marriage. At the time of the dissolution, Former Husband was

disabled and received Social Security income of approximately $850 per month,

and Former Wife earned income of $1636 per month.

      On February 23, 2016, the trial court entered a Final Judgment of

Dissolution of Marriage (the “Final Judgment”), which found that the property the

parties lived in during their marriage—although titled solely in Former Husband’s

name and purchased before the marriage—had become marital property.1 The trial

court awarded $140,000—half of the marital home’s appraised value of

1The trial court found that because the “property was mortgaged in its entire value
twice,” Former Wife “signed and appeared on the Mortgage Note on both
occasions,” and “[b]oth mortgages were paid off during the parties’ marriage using
marital funds,” the property was a marital asset.

                                          2
$280,000—to Former Wife in equitable distribution to be paid by Former Husband

within ninety days of the Final Judgment. The trial court further reserved general

jurisdiction “for the purposes of enforcing, construing, interpreting, or modifying

the terms of [the] Final Judgment.” Former Husband never appealed the Final

Judgment.

      Almost a year later, on February 20, 2017, Former Wife filed an unsworn

Motion to Compel for Contempt and to Enforce Final Judgment (the “Motion to

Enforce”), alleging that Former Husband had willfully “failed and refused to

comply with the Final Judgment and pay the Former Wife” and “remained living

in the home [while] the Former Wife was displaced” and that she was “unable to

retain a new residence for herself and [the parties’] children without her share of

the equity in the marital home.”       Based on these allegations, Former Wife

requested that the trial court enter an order requiring Former Husband to pay

Former Wife the $140,000 awarded by the Final Judgment within five days or,

alternatively, requiring Former Husband to either refinance or sell the home to pay

Former Wife. In response to the Motion to Enforce, Former Husband alleged that

he was unable to pay due to his “limited resources, nominal disability income, and

having no significant assets other than his homestead property” and that the trial

court lacked the authority to order the sale or refinancing of the marital home, as it




                                          3
would improperly modify the property rights set forth in the Final Judgment and

violate the Florida Constitution’s homestead exemption.

      On May 2, 2017, the trial court held a hearing on the Motion for

Enforcement, but rescheduled the hearing for June 16, 2017, to research which

forms of relief were available to Former Wife for enforcement of the Final

Judgment. At the rescheduled hearing, of which this Court only has a partial

transcript, the trial court found that Former Husband’s failure and refusal to pay

Former Wife for over a year was egregious conduct sufficient to warrant the

imposition of an equitable lien on the marital home. At this hearing, however, the

trial court did not take any evidence or testimony from the parties, including

testimony the Former Husband sought to proffer about his alleged willingness to

pay approximately a quarter of his monthly disability income to Former Wife and

his inability to refinance the marital home.

      The trial court subsequently entered an order granting the Motion to

Enforce, except as to finding Former Husband in contempt of court. The order

imposed an equitable lien on the marital home in favor of Former Wife, giving her

the right to foreclose on and sell the home at a public sale unless Former Husband

paid Former Wife $140,000 plus statutory interest within ninety days of the

hearing date. The trial court additionally found Former Wife was entitled to her




                                          4
attorney’s fees and costs based on Former Husband’s egregious conduct. This

appeal ensued.

II.    STANDARD OF REVIEW

       We review an order imposing an equitable lien on homestead property for an

abuse of discretion. See Randazzo v. Randazzo, 980 So. 2d 1210, 1213 (Fla. 3d

DCA 2008).

III.   ANALYSIS

       On appeal, Former Husband contends that the trial court abused its

discretion in imposing an equitable lien on the marital home he claims as

homestead property. We are compelled to agree.

       The Florida Constitution provides that a homestead “shall be exempt from

forced sale under process of any court, and no judgment, decree or execution shall

be a lien thereon.”    Art. X, § 4(a)(1), Fla. Const.      Despite this plain and

unambiguous language, case law provides that “‘[h]omestead property may be

subjected to equitable liens where fraud, reprehensible or egregious conduct is

demonstrated.’” Randazzo v. Randazzo, 980 So. 2d 1210, 1212 (Fla. 3d DCA

2008) (alteration in original) (quoting Sell v. Sell, 949 So. 2d 1108, 1112 (Fla. 3d

DCA 2007)); see also Palm Beach Savings & Loan Ass’n v. Fishbein, 619 So. 2d

267, 270 (Fla. 1993) (stating “that where equity demands it this Court has not




                                         5
hesitated to permit equitable liens to be imposed on homesteads beyond the literal

language of article X, section 4”). We are compelled to follow this precedent.

      In Randazzo, the trial court awarded the former husband the monetary value

of his interest in the marital home, to be paid within ninety days of the final

judgment of dissolution, in exchange for signing a quitclaim deed to transfer his

interest in the home to the former wife. See id. at 1211. “However, when the 90-

day deadline arrived, the [f]ormer [w]ife neither made payment nor requested an

extension for good cause,” and the former husband moved to enforce the judgment.

Id. The trial court granted the motion, finding that the former wife’s conduct was

sufficiently egregious to impose an equitable lien on the marital home. Id. The

former wife filed for bankruptcy and stayed the dissolution proceedings, but then

sold the marital home and purchased another homestead with the proceeds. Id.

Because of the former wife’s conduct, the trial court imposed an equitable lien on

her new homestead property. Id. This Court affirmed the equitable lien, finding

that the trial court did not abuse its discretion in concluding that the former wife’s

conduct was sufficiently egregious to warrant an equitable lien on her new

homestead. See id. at 1212-13.

      Former Wife contends that based on Randazzo, the trial court was correct in

finding that Former Husband’s conduct was sufficiently egregious to justify the

imposition of an equitable lien on the marital home. A review of the record,



                                          6
however, shows that the trial court’s factual findings regarding Former Husband’s

conduct are not supported by competent, substantial evidence, but instead are

based solely on allegations in Former Wife’s unsworn Motion to Enforce and

arguments made by the parties’ counsels at the motion hearing. Indeed, the trial

court did not take any sworn testimony or evidence at the hearing, nor did Former

Wife file any sworn affidavit to substantiate the allegations made in her Motion to

Enforce. “[W]hen an equitable lien is sought against homestead real property,

some fraudulent or otherwise egregious act by the beneficiary of the homestead

protection must be proven.” Isaacson v. Isaacson, 504 So. 2d 1309, 1310-11 (Fla.

1st DCA 1987). Because the record contains no evidence of conduct supporting

the application of the judicially created exception to the constitutional homestead

protection, we find that the trial court abused its discretion in imposing an

equitable lien on the marital home. See Nadrich v. Nadrich, 872 So. 2d 994, 995-

96 (Fla. 4th DCA 2004) (“[T]he court did not make any finding that the husband is

using the newly acquired homestead itself as an ‘instrument of fraud’ or as a means

to escape his support obligation to his wife. . . . [T]his record lacks the

particularized evidence and findings detailed there.”); Partridge v. Partridge, 790

So. 2d 1280, 1283-84 (Fla. 4th DCA 2001) (finding that former wife’s affidavit

attached to her motion for summary judgment was factually and legally

insufficient to invoke the egregious conduct exception for placing an equitable lien



                                         7
on the homestead); cf. Radin v Radin, 593 So. 2d 1231, 1233 (Fla. 3d DCA 1992)

(noting that the trial court’s finding of egregious conduct was “supported by

substantial competent evidence” in the record). We express no opinion as to

whether Former Husband’s alleged conduct rises to the level of egregiousness that

might warrant the imposition of an equitable lien on his homestead property under

Randazzo and other related cases.

      Accordingly, we reverse the trial court’s order granting Former Wife’s

Motion to Enforce. On remand, if the trial court reconsiders imposing an equitable

lien on the marital home based on Former Husband’s alleged conduct, it should

make specific findings based on evidence and testimony procured at a hearing.

      Reversed and remanded for further proceedings.




                                        8
