Weekly Law Update on Florida Divorce & Child Custody Cases

Weekly summaries of decisions made by Florida Court of Appeals on actual divorce, child custody, child support and alimony cases.  

Florida Divorce & Family Law Update for the Four Week Ending December 7, 2014

Below are summaries of recent decisions from Florida's appellate courts on Florida divorce and family law issues.  Clicking on the case name allows you to view the appellate opinion described in the analysis below.  These summaries are courtesy of Bruce Law Firm, P.A., a law firm limited to representation of clients in the mediation, litigation and appeals of Florida marital and family law matters.  The firm also created and maintains the family law focused appellate resources website DivorceCourtAppeals.com.

Case:               Gerber v. Gerber
Court:              Second District Court of Appeal.
Trial Judge:    Robert W. McDonald, Jr..
Attorneys:      Susan J. Silverman, Crystal C. Roland.
Issues:            Child Support, Contempt.
Holding:          A modification of a partial settlement agreement (“PSA”) seeks to change the status quo and seeks a new benefit for one party while a clarification does not seek to change rights and obligations but to make a judgment more clear and precise. Documents attached as exhibits to a motion are not evidence. An order that is indefinite or ambiguous may not be enforced by contempt. 
In this case, regarding clarification of the PSA, the trial court was correct in pursuing clarification of the PSA was appropriate because the PSA did not specifically enumerate a procedure for objections by the parties.
However, the trial court did err in considering as evidence documents attached to the Former Wife’s motion when they were not admitted as exhibits at the hearing, and none of the testimony elicited at the hearing constituted competent, substantial evidence of the amount owed by the Former Husband to the Former Wife for his share of the children's medical expenses.
Finally, regarding the matter of contempt, although the Former Husband's conduct in these proceedings was reproachable (in that he created frivolous and unnecessary litigation and delayed the payment of money to the Former Wife for the benefit of the children) the trial court erred in finding civil contempt. Such a finding is premature if a PSA is not sufficiently clear in its directive regarding objections. The matters of contempt and reimbursement were reversed and remanded.

Case:               Sbroggio v. Sbroggio
Court:              Third District Court of Appeal.
Trial Judge:    John C. Schlesinger.
Attorneys:      Robert J. Merlin, Ana-Maria Mejer, Javier Perez-Abreu.
Issues:            Attorney’s Fees. 
Holding:          Attorney’s fees must be properly pled to the trial court in order for it to retain jurisdiction over the matter.  In this case, the trial court erred in retaining jurisdiction when the matter was not properly before it.

Case:               A.C. v. D.C.F.S. & Guardian ad Litem
Court:              Second District Court of Appeal.
Trial Judge:    Elizabeth G. Rice.
Attorneys:      Melissa A. Cordon, Pamela Jo Bondi, Meredith Hall, Jennifer S. Paullin.
Issues:             Termination. 
Holding:          When a parent in a termination of parental rights case, petitions the appeals court for a writ of certiorari to quash a nonfinal order denying his or her motion to set aside a previous order of consent by nonappearance, then he or she must demonstrate that the order will result in material injury that cannot be corrected on post-judgment appeal.  In this case, the trial court did not err in making its nonfinal order and the appeals court was not presented with sufficient evidence to show the Mother would suffer material injury that could not be corrected at appeal.  The Mother may raise the same issue on direct appeal if and when a final termination order is rendered.

Case:              Clark v. Clark
Court:             Second District Court of Appeal.
Trial Judge:   Nick Nazaretian.
Attorneys:      Robert M. Tager, Donald A. Foster.
Issues:             Alimony, Contempt.
Holding:          Modification of temporary alimony / support should not be considered at a contempt hearing unless proper notice is provided to all parties and an opportunity is provided to tender sufficient evidence. In this case, the trial court erred in holding that it was sua sponte reducing the Former Wife's previously ordered temporary support but did not rule on her contempt motion. The order resulted from a noticed contempt hearing against the Former Husband by the Former Wife. However, the Former Husband had not filed a motion to reduce the temporary support and the Former Wife had no notice that the issue of a modification of temporary support would be considered at the contempt hearing. Based on the lack of notice and a meaningful opportunity for the parties to be heard, the appeals court reversed the Order on the Former Wife's Motion for Contempt and remanded for reinstatement of the temporary support obligation.

Case:               Albu v. Albu
Court:             Fourth District Court of Appeal.
Trial Judge:   Thomas Barkdull, III.
Issues:             Alimony. 
Holding:          A party seeking a modification of alimony must show: i) a substantial change in circumstances; ii) that was not contemplated at the time of the final judgment of dissolution; and iii) is sufficient, material, involuntary, and permanent in nature. However, the need of one spouse and the other former spouse’s ability to pay continue to be the most important factors to consider in such proceedings. In determining the extent of modification, the trial court should consider those factors listed in applicable Florida statutes, to the extent that they are relevant to modification of previous awards. These factors include each party’s financial resources, earning capacities, employability, and sources of income. The appeals court will review an order on a motion to modify alimony by relying on an “abuse of discretion” standard. In this case, the trial court did not err insofar as it considered the appropriate factors when it concluded that the Former Wife had no other source of income yet the Former Husband earned some income. Furthermore, the Former Wife had never worked and both parties had substantial medical problems. The Former Husband’s income was insufficient to allow both parties the standard of living to which they had been previously accustomed. Given these factors, the trial court’s efforts to provide some support to the Former Wife by approximately dividing the income of the Former Husband (although he earned more than she) is not an abuse of discretion were not improper. The trial court sought to balance the needs and ability of each party, and left open the option for the Former Husband to petition for a future reduction if the Former Wife qualified for social security benefits. No abuse of discretion was shown.

Case:               Castillo v. Castillo
Court:              Fourth District Court of Appeal.
Trial Judge:    Laura M. Watson.
Attorneys:      Gary Kollin, Gregory F. Betancourt.
Issues:             Alimony, Attorney’s Fees, Procedure. 
Holding:          The sworn allegation of a party to a post-dissolution support proceeding asserting that the trial court denied him or her to present argument or additional evidence can be grounds for a writ of prohibition. Such an allegation is sufficient to raise, in a reasonably prudent person, a fear of not receiving a fair hearing on his or her legal claims. In this case, the trial court erred in that it failed to allow the Former Husband to present argument or additional evidence prior to ruling on the Former Wife’s motion for temporary support. The appeals court directed reassignment to a successor judge and vacated the trial court’s order granting the Former Wife’s prior motion for temporary relief and attorney’s fees, as it was entered after the Former Husband’s motion to disqualify the trial judge.

Case:               Moore v. Kelso-Moore
Court:              Fourth District Court of Appeal.
Trial Judge:    Dale C. Cohen.
Attorneys:      Karen Coolman Amlong, Jennifer Daley, Alison Churly-Davis, Liana M. Carrozza, Joel L. Kirschbaum.
Issues:             Attorney’s Fees. 
Holding:          An award of attorney’s fees must be based on a sufficient evidentiary record. It is not, per se, reversible error when a trial court fails to make explicit findings in support of a temporary award of fees, if the record contains sufficient evidence to support the amount of fees awarded. In this case, the trial court erred in that the award of attorney’s fees was not based on sufficient evidence on the record.  The fees award appeared to reflect the lion’s share of the hours expended by the Former Wife’s legal team. This conflicted with the trial court’s other findings, which were in favor of the Former Husband, whose legal team expended significantly fewer billable hours on the matters before the trial court. While evidence to support the reasonableness of the hourly rate of associates and paralegals are helpful, they are not required for the court to make an award. Florida statutes do not require corroborating expert testimony as to the reasonableness of such items in order to support an award of fees. It may be sufficient for a party’s attorney to give evidence regarding the rates charged.  The trial court can rely on that evidence and those rates in setting the fee, particularly if there is no evidence led to the contrary. The appeals court reversed and remanded for the trial court to make sufficient findings on reasonable hours and hourly rates, to enable an appeals court to conduct a meaningful review.