+ IN THE SUPREME COURT OF
THE STATE OF FLORIDA
HIROAKI KOBAYASHI, CASE NO. 92,811
HOLLIS M. KOBAYASHI,
PETITIONER’S REPLY TO RESPONSE TO
PETITION FOR WRIT OF MANDAMUS
Petitioner’s appeal to the District Court of Appeal of
Florida, Third District, sought to review the Circuit Court’s
finding that Petitioner had the ability to pay $138,560.00 for
alimony, support and attorneys’ fees. The District Court dismissed
the appeal for nonpayment, without reviewing the record, even
though the Petitioner, who claims to be unable to pay, offered to
In Gazil v. Gazil, 343 So.2d 595 (Fla. 1977), this Court held
that an appeal may be dismissed for disobeying an order if
appellant is given a grace period to obey. This Court cited Morris
v. Rabara, 45 So.2d 265 (Fla. 2d DCA 1962); and Durham v. Durham,
297 So.2d 857 (Fla. 4th DCA 1974). In both of these cases, the
appeal was dismissed unless the appellant purged himself of the
contempt or was in custody. Here, the District Court did not give
Petitioner such an option.
Petitioner traveled to Miami twice for his deposition.
(App.117-118) He came to Miami for that purpose under the threat
that the Respondent’s attorney intended to have him incarcerated
while attending his deposition. The deposition was canceled when
the appeal was dismissed. (App.118)
Petitioner states, under oath:
Although I am in great fear of imprisonment
because of my nationality, the fact that I can
only communicate well in Japanese and I have a
disability, I am nevertheless willing to
return to Florida to be incarcerated if that
is necessary in order for me not to lose the
right to an appeal. Because I do not have
$138,560 available, there is no other way for
me to preserve my right to appeal. (App.118)
Justice Roberts, in his concurring opinion, stated that the
court’s finding is “reviewable by the review court.” Had the
District Court of Appeal of Florida, Third District, reviewed the
lower court’s finding, it would have to conclude that the
Petitioner did not have the ability to pay the $138,560. The Wife
could not identify any source from which this could be paid.
MANDAMUS IS THE CORRECT REMEDY TO
REINSTATE A DISMISSED APPEAL.
In Beatty v. Beuttenmuller, 654 So.2d 130 (Fla. 1995), the
District Court of Appeal of Florida, Fourth District, dismissed an
appeal because the appellant had not paid the statutory filing fee
or filed an order of indigency. This Court granted the Petition
for Writ of Mandamus based upon the appellant’s affidavit and
The Petition is hereby granted and
the respondent is hereby directed to
reinstate petitioner’s appeal, it
appearing to have been undisputed at
all times that appellant was
indigent and entitled to the entry
of an order of indigency for
purposes of appeal.
See McFadden v. West Palm Beach Police Off., 658 So.2d 1047 (Fla.
4th DCA 1995) for details of this Court’s action.
RESPONDENT’S TREATMENT OF THE “FACTS”
Respondent asserts that under the authority of Goodwin v.
Goodwin, 640 So.2d 73 (Fla. 1st DCA 1994), “the cardinal rule of
appellate procedure [is] that the facts of the case are those
stated by the court.” Petitioner respectfully suggests that this
is not a correct statement of ruling in Goodwin, nor is it the rule
applicable in this case. The appellate court must determine if the
record supports the finding of facts. Where it does not, the order
must be reversed.
What the court in Goodwin v. Goodwin, supra, did say is that
an appellate court is “constrained to review the propriety of the
lower court’s order based upon the record before it” (page 174).
Accordingly, Respondent’s gratuitous statements in her response
that the Wife has “been reduced to poverty”1 and “was required to
sell the parties’ home” (pages 7-8), are not supported by the
record and should not be considered by this Court.
The record does reflect the following:
1. The parties were married in 1981. They have two
2. In 1989, following an accident in which the Petitioner
lost part of his leg, he purchased the marital residence for
approximately $700,000.00. (App.18)
3. After the Husband was served with process, the parties
attended mediation. The parties left mediation on January 7, 1997,
with two tentative dates on which to resume mediation. (App.19, 34-
4. The very next day, after the Petitioner had left for
Japan, the Wife’s attorney sent a Notice of Final Hearing to the
residence occupied by the Wife (not to Japan where the Husband
resided). (App.35) Petitioner did not receive notice of the final
5. The final hearing was held in the Husband’s absence.
There was no testimony as to the Husband’s income. (App.34) The
Wife knew nothing about any assets the Husband may have had in
The Wife testified at the contempt hearing that she had
$50,000.00 cash on hand. (App.52) There is nothing in the record
as to the sale of the marital residence.
6. The Wife was awarded all of the assets in the United
States, i.e., the marital residence valued at $850,000.00 and
personal property. (App.8-13) The Husband was awarded all of the
assets in Japan, which had virtually no value (App.61-62), and an
automobile in the United States which the Wife sold and kept the
7. A Notice of Hearing on the Motion for Contempt was mailed
to the Husband’s attorneys during the Thanksgiving weekend. The
Wife’s attorney knew the Husband’s attorney was out of State and
the Husband was in Japan. (App.42) The Husband’s Motion for
Continuance or to appear by telephone was denied.
8. At that hearing, the Wife testified that she had
$50,000.00 cash on hand and that she had sold the Husband’s
automobile and received $14,000.00. (App.52) She could not
identify a single asset of any value owned by the Husband or by
which the Husband could pay the monies owed to her. (App. 52,122)
9. The Husband, by proffer, submitted an Affidavit stating
that his only asset was an interest in an insolvent corporation; he
had to vacate his apartment; he was living on borrowed money; and
he owed his sister $60,000.00. (App. 116-118)
10. There was no evidence offered to rebut the Husband’s
11. The Petitioner traveled to Miami-Dade County from Japan
two times after the contempt order to appear for his deposition,
under the explicit threat that he would be incarcerated. When he
appeared for the second time, the Wife canceled his deposition. He
has offered to return to Miami-Dade County to be incarcerated, if
necessary, to preserve his right to an appeal. (App.116-118)
A Final Judgment was entered, without proper notice and in
Petitioner’s absence, awarding to the Wife virtually every asset
owned by the parties and requiring the payment of $14,000.00 per
month for alimony and support. That court denied the Petition to
Vacate the Final Judgment and, upon short notice and while the
Husband was in Japan and without permitting him to testify by
telephone, held the Husband in contempt, finding that he had the
ability to pay $138,560.00 in arrears.
The record is void of any asset or income stream by which this
can be paid. The Wife testified that she could not refute the
Husband’s statement that he cannot pay the money. She cannot
identify “any asset in his possession, custody or control of your
Husband by which he could pay the monies that are due and owing.”
The dismissal of this appeal without review of the record is
a denial of the Petitioner’s right to appellate review.
BUCHBINDER & ELEGANT, P.A.
Attorneys for Petitioner/Husband
BankAtlantic Building, 4th Floor
46 Southwest First Street
Miami, Florida 33130
HARRIS J. BUCHBINDER
Florida Bar No. 009888
CERTIFICATE OF SERVICE
IT IS HEREBY CERTIFIED that a true and correct copy of the
foregoing has been furnished, by MAIL, to Attorneys for
Appellee/Wife: CYNTHIA L. GREENE, ESQ., 9150 Southwest 87th Avenue,
Suite 200, Miami, Florida 33176; and ANDREW M. LEINOFF, ESQ.,
Suite 206, 1500 San Remo Avenue, Coral Gables, Florida 33146, this
13th day of August, 1998.
HARRIS J. BUCHBINDER
Florida Bar No. 009888