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									                       Case No. SC07-1518
                    DCA Case No. 3D05-2408
                      Florida Bar No. 283975
On Discretionary Review from the District Court of Appeal of Florida,
                           Third District
 _______________________________________________________

                            In the
               SUPREME COURT OF FLORIDA
          ________________________________________

                       AURORA ROMERO
                          Petitioner

                                 vs.

                       OSVALDO ROMERO
                          Respondent.




   RESPONDENT'S AMENDED BRIEF ON JURISDICTION




                           Law Offices
                  Schreiber, Rodon-Alvarez, P.A.
                    2222 Ponce de Leon Blvd.
                   Coral Gables, Florida 33134

                                and

                            Law Offices
                  Greene Smith & Associates, P.A.
                       7340 S.W. 61st Court
                      Miami, Florida 33143
                          (786) 268-2553
                                         TABLE OF CONTENTS
                                                                                                            Page

Table of Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .      iii

Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   1

Statement of the Case and Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .                 1

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .               5

Argument:

                                                        I.

         THE DECISION OF THE DISTRICT COURT OF
         APPEAL HEREIN DOES NOT CONFLICT WITH THIS
         COURT'S DECISION IN Macar v. Macar, 803 So.2d 707
         (Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
                                                                                                            6

                                                       II.

         THE DECISION OF THE DISTRICT COURT OF
         APPEAL HEREIN DOES NOT CONFLICT WITH THIS
         COURT'S DECISIONS IN DeClaire v. Yohanan, 453 So.2d
         375 (Fla. 1984) and Cerniglia v. Cerniglia, 679 So.2d 1160
         (Fla. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
                                                                                                            9

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    10

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .        11

Statement of Compliance with Rule 9.210(a)(2) . . . . . . . . . . . . . . . . . .                           12




                                                        ii
                                    TABLE OF CITATIONS

                                                                                              Page

Cerniglia v. Cerniglia
     679 So.2d 1160 (Fla. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     5

DeClaire v. Yohanan
     453 So.2d 375 (Fla. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    5

Department of HRS v. National Adoption Counseling Service, Inc.
     498 So.2d 888 (Fla. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    9

Hardee v. State
     534 So.2d 706 (Fla. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    9

Macar v. Macar
    803 So.2d 707 (Fla. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     5

Nielsen v. City of Sarasota
      117 So.2d 731 (Fla. 1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .   6

School Board of Pinellas County v. District Court of Appeal
     467 So.2d 985 (Fla. 1985) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .    9

Smith v. Jack Eckerd Corp.
     577 So.2d 1321 (Fla. 1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     7

Ward v. Atlantic Security Bank
     777 So.2d 1144 (Fla. 3rd DCA 2001) . . . . . . . . . . . . . . . . . . . . .             8

White Construction Co., Inc. v. Dupont
     455 So.2d 1026 (Fla. 1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . .     6




                                                iii
                              INTRODUCTION

      The Petitioner, AURORA ROMERO, was the Former Wife in post-

judgment dissolution of marriage proceedings in the trial court. She was the

Appellee in the appellate proceedings before the District Court of Appeal, Third

District. The Respondent, OSVALDO ROMERO, was the Former Husband in the

post-judgment proceedings and the Appellant before the Third District Court of

Appeal. The parties shall be referred to herein as "the Husband" and "the Wife."

References to the Appendix refer to the Appendix submitted with the Petitioner's

Amended Brief on Jurisdiction and shall be indicated by the abbreviation "Pet.

App." All emphasis is supplied unless otherwise noted.

                 STATEMENT OF THE CASE AND FACTS

      The Husband and Wife were married in 1990 and separated eight years later

in 1998. (Pet. App. 2). Following their separation, the parties began negotiating

how to divide their marital property and drafted a proposed Marital Settlement

Agreement in January, 1999. (Pet. App. 2).       Ultimately, the Wife signed a

Settlement Agreement (in substantially the same form as the earlier negotiated

Agreement) on July 6, 1999. (Pet. App. 2). A dissolution of marriage action was

filed two weeks thereafter on July 20, 1999. (Pet. App. 2). On that same day, the

Husband signed the Marital Settlement Agreement and executed a Financial

Affidavit. (Pet. App. 2). The Wife executed a Financial Affidavit several months


                                    1
later, in September, 1999. (Pet. App. 2). The trial court entered a Final Judgment

adopting the parties' Agreement on September 27, 1999. (Pet. App. 2).

      Three years after the entry of the Final Judgment, the Wife learned that the

Husband had exercised certain stock options which had been obtained by him in

association with employment he had obtained in March, 1999 with a company

called Qtera. (Pet. App. 3). Specifically, the Former Husband received stock

options to purchase 22,000 common shares of Qtera stock at ten (10) cents per

share. These options were non-transferable and were contingent upon the Former

Husband working at Qtera for one year. After one year of employment, twenty-five

percent (25%) of the stock options would vest. The remaining stock options would

vest 1/48th per month for the following forty-eight (48) months. Thus, at the time

the final judgment of dissolution was entered, the Former Husband's stock options

were non-vested and he owned no stock. (Pet. App. 3-4).1 However, complicating

matters was the fact that in December 1999, months before the Husband's stock

options vested, Qtera was acquired by Nortel, and Qtera stock was exchanged for

Nortel stock at a rate of one share of Qtera stock for 1.335 shares of Nortel stock.

Thus, in March 2000, when the Husband's option to purchase the first twenty-five

percent of the stock vested and was exercised, he received Nortel stock valued at


1  Additionally, the Wife's own expert opined that in July of 1999, the non-vested
stock options could not be valued. (Pet. App. 5).


                                      2
$126 per share. The Husband continued to exercise his options to purchase stock,

which vested monthly, through December 2000. Based on advice from stock

market experts, the Husband did not sell any of the stock he received. Ultimately,

the price of Nortel stock drastically decreased and within a year, the Husband was

left with nothing but worthless stock and tax liabilities. (Pet. App. 3-4).

      The Wife - asserting that the Husband had failed to disclose the existence of

these options in his July, 1999 Financial Affidavit - sought the imposition of a

constructive trust on one-half of the options although she later asserted that her

cause of action was actually one pursuant to Rule 12.540, Florida Family Law

Rules of Procedure. (Pet. App. 3; 10).

      The trial court ultimately concluded that the options were marital assets

because they were awarded to the Former Husband because of his past

qualifications and experience.     Specifically, the trial court concluded that the

options vested for 126 days during the marriage and that accordingly "the marital

value of the option to purchase 25% of the stock was 126/360 of the fair market

value of the stock as of March 8, 2000, the day that option vested." Ultimately, the

trial court ruled that the Former Husband was holding $197,856.92 in a

constructive trust for the benefit of the Former Wife. (Pet. App. 5-6).

      On appeal, the District Court reversed, finding that the Wife "failed to

establish a basis for relief from the final judgment." (Pet. App. 7). Specifically, the


                                         3
District Court held that the Wife failed to show that a fraud had been committed:

"[t]he trial court found that the Former Wife was entitled to relief based on the

Former Husband's failure to disclose the existence of his stock options in Qtera

stock on his financial affidavit. This finding is insufficient, as a matter of law, to

support granting relief from a final judgment." (Pet. App. 7-8). In explaining the

foregoing, the District Court opined:

      Florida has a well-recognized policy favoring the finality of
      judgments, especially in family law contexts . . . . The only
      exception to this "absolute finality" of final judgments is Florida
      Rule of Civil Procedure 1.540, which provides limited avenues by
      which a party can petition for relief from a final judgment.

                          *                   *                   *

      In 1992, the Florida Supreme Court amended Rule 1.540(b) to
      remove the one year limit for motions alleging fraudulent
      financial affidavits . . . . Were it not for this amendment to Rule
      1.540, motions for relief from judgment based on fraudulent
      financial affidavits would be governed by the one year limitation.
      Though originally contained with Rule 1.540(b), this language
      regarding fraudulent financial affidavits was then removed from
      Rule 1.540(b) and placed in Florida Family Law Rule of
      Procedure 12.540.

                          *                   *                   *

      Given its history, it is clear that the purpose of Florida Family
      Law Rule 12.540 was not to establish an additional ground upon
      which to challenge a final judgment, but instead to remove the
      time limitation on an already existing ground. Thus, a motion
      made under 12.540 must still establish a valid ground for setting
      aside the final judgment under Florida Rule of Civil Procedure
      1.540. Clearly, the most applicable basis for seeking to set aside a
      final judgment under Rule 1.540 when dealing with allegations of

                                        4
      a fraudulent financial affidavit is 1.540(b)(3) . . . .

                          *                   *                 *

      We find that the trial court failed to make adequate findings to
      support his order granting relief on the basis of fraud. In fact, the
      trial court did not even find that a fraud had been committed. Here,
      the trial court's finding that the Former Husband failed to
      disclose his Qtera stock options, which had not vested at the time
      of dissolution, is not analogous to a finding that the Former
      Husband submitted a fraudulent financial affidavit . . . . Without
      making a finding that the Former Wife satisfied one of the
      grounds of Rule 1.540(b), the trial court had no authority to
      award relief. (Pet. App. 9-11).

      The Wife now seeks review in this Court, contending that the foregoing

somehow "establishes a dangerous rule of law" and is purportedly in conflict with

this Court's decisions in Macar v. Macar, 803 So.2d 707 (Fla. 2001), DeClaire v.

Yohanan, 453 So.2d 375 (Fla. 1984) and Cerniglia v. Cerniglia, 679 So.2d 1160

(Fla. 1996).

                      SUMMARY OF THE ARGUMENT

      The instant case in no way conflicts with any decision of this Court or of

another appellate court on the same issues of law. Indeed, the opinion of the

District Court herein announces no rule of law and is rather fact specific: the Wife

failed to prove that a fraud was committed. Period. Given that such is, in essence,

the holding of both this Court and of the Second District in Macar, supra, there is

obviously no "conflict." As to the purported "conflict" asserted by the Wife with

respect to Cerniglia and DeClaire, the Wife asserts that the opinion in this case

                                       5
somehow alters "what constitutes actionable intrinsic fraud under Rule 1.540 and

Rule 12.540." (Petitioner's Brief at 7). Yet, no such discussion is contained in the

District Court's opinion and, in fact, other than a quotation of Rule 1.540, the term

"intrinsic fraud" appears no where in the decision. As such, the claimed "conflict"

is not apparent on the face of the decision herein and, thus, jurisdiction does not lie

for this Court's review.

                                   ARGUMENT

                                           I.

THE DECISION OF THE DISTRICT COURT OF APPEAL HEREIN DOES
NOT CONFLICT WITH THIS COURT'S DECISION IN Macar v. Macar,
803 So.2d 707 (Fla. 2001).

      "Conflict jurisdiction" must be premised upon one of two alternative

concepts: either a decision announces a rule of law which conflicts with a rule

previously announced by another court, or a decision applies a rule of law to

produce a different result in a case which involves substantially the same

controlling facts as a prior case. Nielsen v. City of Sarasota, 117 So.2d 731, 734

(Fla. 1960).

      In the first situation, it has been held that the facts of a case are immaterial

and it is "the announcement of a conflicting rule of law that conveys jurisdiction

to [this Court] to review the decision of the Court of Appeal." See, e.g., White

Construction Co., Inc. v. Dupont, 455 So.2d 1026, 1031 (Fla. 1984), Ehrlich, J.,


                                       6
dissenting. To be sure, the District Court announced no rule of law in the instant

case. Instead, this case involves nothing more than the Court's determination that

the Wife failed to prove her case below, an entirely factual determination.

      Under the second circumstance in which "conflict jurisdiction" may be

asserted, it is said that "the controlling facts become vital and [this Court's]

jurisdiction may be asserted only where the Court of Appeal has applied a

recognized rule of law to reach a conflicting conclusion in a case involving

substantially the same controlling facts as were involved in allegedly conflicting

prior decisions . . . ." Smith v. Jack Eckerd Corp., 577 So.2d 1321 (Fla. 1991) -

("this Court has conflict jurisdiction . . . when a district court applies a rule to

produce a decision conflicting with that reached in another decision involving

substantially the same controlling facts.") Here, the decision of the Third District

is precisely in accordance with Macar v. Macar, supra and, therefore, there is no

"conflicting conclusion" upon which this Court's jurisdiction could be premised.

      In this case, the operative holding of the District Court of Appeal is: (1) Rule

12.540, Florida Family Law Rules of Procedure, does not establish an additional

ground for relief from judgment but, rather, merely removes the time limitation "on

an already existing ground"; (2) therefore, a motion made under Rule 12.540 - the

specific basis for the Wife's claim below - must still establish a valid ground from

setting aside a final judgment pursuant to Rule 1.540; (3) that such ground herein


                                      7
was the Wife's claim of fraud; and, (4) given that claim, the Wife was required to

prove that a fraud occurred and she failed to do so. In other words, although the

Husband acknowledged that he had omitted reference to his non-vested, contingent

stock options in his Financial Affidavit, the Wife did not establish nor did the trial

court find the existence of any of the requisite elements of a fraud. See, e.g., Ward

v. Atlantic Security Bank, 777 So.2d 1144, 1146 (Fla. 3rd DCA 2001).

      Contrary to the Wife's assertions, the foregoing is completely in accordance

with this Court's decision in Macar v. Macar, supra, given that therein this Court

expressly approved the Second District's conclusion that although the husband's

financial affidavit had mischaracterized three investment accounts as "non-

marital," had wrongly valued two bank accounts, had neglected to include on the

financial affidavit a tax refund of $5,170.00, and had failed to list stock certificates

worth approximately $1,000.00, such omissions or mistakes - on their face - did

not establish that the affidavit was fraudulent. In fact, much as here, the trial court

"made no finding of fraud on the part of the husband. Rather, the trial court ruled

that 'mistakes' in the husband's financial affidavit made his financial disclosure

incomplete."    In approving the decision of the Second District, this Court

specifically noted that Mrs. Macar had failed to establish the elements of fraud.

Thus, as the foregoing clearly demonstrates, the instant case does not conflict with

Macar at all but, rather, is entirely in accordance with it. The trial court herein was


                                        8
reversed on precisely the grounds upon which the Second District reversed the

judgment in Macar, which reversal was subsequently approved by this Court. As

such, the Wife has totally failed to establish any basis for this Court to invoke its

jurisdiction.

                                           II.

THE DECISION OF THE DISTRICT COURT OF APPEAL HEREIN DOES
NOT CONFLICT WITH THIS COURT'S DECISIONS IN DeClaire v.
Yohanan, 453 So.2d 375 (Fla. 1984) and Cerniglia v. Cerniglia, 679 So.2d 1160
(Fla. 1996).

       In determining whether such "conflict jurisdiction" exists, this Court is

limited to the facts set forth in the District Court opinion and the "conflict" must

appear on the face of the opinion itself. Department of Health and Rehabilitative

Services v. National Adoption Counseling Service, Inc., 498 So.2d 888 (Fla.

1986); Hardee v. State, 534 So.2d 706 (Fla. 1988). Further, the term "expressly"

means "within the written district court opinion." School Board of Pinellas County

v. District Court of Appeal, 467 So.2d 985 (Fla. 1985).

       Here, the purported "conflict" asserted by the Wife is a claim that the

opinion in this case somehow alters "what constitutes actionable intrinsic fraud

under Rule 1.540 and Rule 12.540." (Petitioner's Brief at 7).          Yet, no such

discussion is contained in the District Court's opinion and, in fact, other than a

quotation of Rule 1.540, the term "intrinsic fraud" appears nowhere in the decision.

But, for this Court's jurisdiction to lie, the opinion in question must show - "within

                                       9
the four corners of the majority decision" - a clear and express conflict between the

decision in question and a decision of this Court, circumstances which simply do

not exist in this case. Department of Health and Rehabilitative Services v.

National Adoption Counseling Service, Inc., 498 So.2d 888 (Fla. 1986).

                                    CONCLUSION

      Based on the foregoing argument and authority, the Husband respectfully

submits that there is no conflict between the opinion in the instant case and that of

this Court or any of the District Courts and, therefore, this Court should decline to

exercise its jurisdiction herein.




                                      10
                        CERTIFICATE OF SERVICE

      WE HEREBY CERTIFY that a copy of the foregoing Amended

Jurisdictional Brief of Respondent was served by mail upon counsel for the

Appellee/Wife, Guillermo F. Mascaro, Esq., 9415 Sunset Drive, Suite 256, Miami,

Florida, 33173-5474 and John Zavertnik, Esq., Sinclair, Louis, Heath, Nussbaum

& Zavertnik, P.A., 169 East Flagler Street, Suite 169, Miami, Florida 33131, this

26th day of September, 2007.

                                 Law Offices
                        Schreiber, Rodon-Alvarez, P.A.
                          2222 Ponce de Leon Blvd.
                         Coral Gables, Florida 33134

                                         and

                                  Law Offices
                        Greene Smith & Associates, P.A.
                             7340 S.W. 61st Court
                            Miami, Florida 33143
                                (786) 268-2553


                    By: ______________________________
                            CYNTHIA L. GREENE

cc:   e-file@flcourts.org




                                    11
        STATEMENT OF COMPLIANCE WITH RULE 9.210(a)(2)

      WE HEREBY CERTIFY that this Amended Jurisdictional Brief of

Respondent has been prepared in compliance with Rule 9.210(a)(2), Florida Rules

of Appellate Procedure, using 14 point Times New Roman font.

                                 Law Offices
                       Greene Smith & Associates, P.A.
                            7340 S.W. 61st Court
                           Miami, Florida 33143
                               (786) 268-2553

                      By: __________________________
                            CYNTHIA L. GREENE




                                   12

								
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