Bresky Law Obtains Remand For Former Wife to Pursue Past-Due Alimony

Drdek v. Drdek,
Case No. 4D10-3082

We represented a former wife who originally filed a motion for contempt shortly after the parties divorced, due to the former husband’s non-payment of alimony despite his recent receipt of significant income from social security. The trial court adopted the magistrate’s recommendation to deny former wife’s motion because the parties’ marital settlement agreement (“MSA”) exempted retirement benefits. The former wife then filed another motion for contempt for non-payment of alimony that was heard by a different magistrate. The second magistrate rejected the proposition that she was bound by the law of the case doctrine to recommend denial, and found that a manifest injustice would result. The second magistrate found the first magistrate’s interpretation of the MSA clearly erroneous. However, the trial court sustained the former husband’s exceptions to the second magistrate’s recommendation, finding that the law of the case applied and a magistrate could not overrule the prior circuit court ruling on the grounds of manifest injustice.

On appeal, the Fourth DCA agreed with our position that the law of the case did not apply where the proceedings did not involve a prior appellate court. The trial court was therefore not bound by the law of the case to sustain the former husband’s objections to the second magistrate’s recommendation. The Fourth DCA held that the second magistrate was bound by the general principle that a successor judge may not correct errors of law on the same facts presented to the predecessor judge. However, the Fourth DCA remanded in part on the issue of past-due alimony pursuant to the former husband’s non-modifiable obligation in the MSA.

This result allowed our client to seek to obtain past due alimony from the former husband’s other assets.

** [Note: At the time of this posting, the Fourth DCA mandate has not issued. The decision will not be final until disposition of any timely filed motion for rehearing.] **