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 Weeks Ending November 16, 2014

Case:              Williams v. Williams
Court:             First District Court of Appeal.
Trial Judge:   Linda F. McCallum.
Attorneys:      Lynn W. Martin, J. Nickolas Alexander, Jr..
Issues:            Contempt, Attorney’s Fees. 
Holding:          A judgment of contempt is presumed correct on appeal and will not be disturbed unless the evidence in the record is insufficient to support it. Moreover, in dissolution and support matters, the final judgment creates a presumption in subsequent proceedings that the obligor has the ability to make the payments ordered. If the obligor defaults, triggering contempt proceedings, then, the obligor must overcome the presumption with evidence showing circumstances beyond his or her control arose and creating an inability to comply with the prior order. Further, the court shall include in its order a separate finding that the contemnor is currently able to comply with the purge, and the factual basis for that finding. Additionally, the appellant must preserve the issue for appeal. Finally, an award of attorney’s fees must be based on the trial court’s clear findings regarding the need-and-ability-to-pay requirement.
In this case, the trial court was correct in determining the Former Husband failed to sustain his burden.  Further, though the trial court’s order did not make an express finding, the record included the Former Husband’s financial affidavit, which showed cash on hand. However, the Former Husband failed to preserve the issue for appeal. While he had filed a notice of appeal the day after the trial court rendered the contempt order, he did not subsequently file a sufficient post-judgment objection (or an emergency motion). As such, the trial court lacked the jurisdiction to amend the contempt order. As for attorney’s fees, the trial court erred as it’s decision was not specific enough to enable the appeals court to effect proper review.  Matters were remanded to the trial court to consider the relative financial standing of the parties and articulate its findings.

 Case:              Diaz v. Diaz
Court:             Third District Court of Appeal.
Trial Judge:   Valerie R. Manno Schurr.
Attorneys:      Michael F. Vander Wyden, Brian D. Fell.
Issues:            Alimony, Dissolution.
Holding:          Under Florida statute, durational alimony: a) may not exceed the length of the marriage; and b) cannot be modified except under exceptional circumstances. Equitable arguments that, in exceptional circumstances, the durational alimony may exceed the length of the marriage must fail given the clarity of the statute on point. In this case, the trial court erred in awarding durational alimony for such time which exceeded the parties’ marriage.  The matter was reversed and remanded for reduction of the term of the award.

 Case:             Coleman v. Bland
Court:             Fifth District Court of Appeal.
Trial Judge:   Donald E. Grincewicz.
Attorneys:     Carlton Pierce, Michael B. Jones, Eric Lee Bensen, Cynthia M. Winter.
Issues:           Attorney’s Fees.
Holding:          If a trial court order fails to specify which portions of an award of attorney’s fees applies to appellate fees and costs, as opposed to trial fees and costs, then an appeals court is precluded from meaningful review of that award. A review of an order on appellate costs, or attorney’s fees, requires filing a motion for review in the appellate court according to the procedural requirements. In this case, the trial court erred in awarding attorney’s fees without specifying the rationale for the award.  Accordingly, the matter was remanded to the trial court to apportion attorney’s fees and/or costs awarded between appellate and trial work.

Case:              Clayton v. Clayton
Court:             Fifth District Court of Appeal.
Trial Judge:   Donald E. Scaglione.
Attorneys:      Scott T. Smith.
Issues:            Child Support, Time-Sharing.
Holding:          A final judgment for child support must: a) be based on consistent and cogent evidence; b) reflect time-sharing arrangements; and c) state the month, day and year that a reduction in child support will become effective. Further, the final judgment shall identify marital liabilities and designate which spouse is responsible for each. In this case, the trial court erred in that the final judgment incorporated an erroneous child support worksheet. Specifically, the worksheet utilized the Appellee’s net income but the Appellant’s gross income. Additionally, while the worksheet employed utilized the “Gross Up Method” of calculation of child support, the time-sharing arrangement did not support this method. Further, the final judgment failed to comply with Florida statutes in that it did not address the time-sharing schedule and date of reduction of child support. The final judgment also failed to allocate the liabilities between the parties. The appeals court reversed and remanded those portions of the final judgment to the trial court to make the necessary corrections.