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 23, 2014

Case:              Lieberman v. Lieberman
Court:             Fourth District Court of Appeal.
Trial Judge:   Tim Bailey.
Attorneys:      Lourdes E. Ferrer, Kenneth M. Kaplan.
Issues:            Dissolution, Procedure, Disqualification of Attorney.
Holding:          Disqualification of a party’s chosen counsel is a drastic remedy that should be used sparingly.  Motions for disqualification are generally viewed with skepticism because disqualification of counsel impinges on a party’s right to employ a lawyer of choice, and such motions are often interposed for tactical purposes.  Attorney’s fees may be awarded as a punitive measure where a spouse in a domestic relations case institutes frivolous claims that contribute to unnecessary legal expenses, costs and a delay of the proceedings. In this case, the trial court erred in ordering that the former husband’s current wife and legal counsel from could no longer represent him even though she was a potentially necessary witness at the contempt hearing. The fact of her being a potential witness in one instance would not prevent her from serving as the former husband’s attorney in other proceedings. The former wife’s attorney took drastic steps to have the former husband’s wife removed, which were determined to be inappropriate and attorney’s fees were awarded accordingly. The disqualification order is contrary to the plain terms of Florida procedural rules, which, while prohibiting the lawyer from acting as advocate at a trial in which the lawyer is likely to be a necessary, does not support general disqualification of counsel. There was no reason for a general disqualification. The appeals court remanded the matter to the trial court to assess the amount of appellate attorney’s fees to be imposed as sanction on the former wife for her counsel’s conduct in the proceedings in the lower court.

Case:              Ford v. Ford
Court:             Fourth District Court of Appeal.
Trial Judge:   James L. Martz.
Attorneys:      Stacey D. Mullins, Holly D. Schuttler, Andrew A. Harris, Holly Gayle Gershon.
Issues:            Parenting, Contempt.
Holding:          In order to find an individual in contempt, the trial court must make specific findings of conduct in violation of an order or procedure. Further, the trial court must find that the contemnor had the ability to comply with the previous court order. A party cannot be held in contempt for non-compliance with a court order if the party did not have the ability to do so.

Pursuant to Florida statute, the trial court has the authority to make specific orders regarding parenting and time-sharing as such orders relate to the circumstances of the parties, the nature of the case and are equitable. While such provisions have not been interpreted to give authority to order parents into therapy, they may be challenged for clarity and broadness.  Florida statute also authorizes the trial court to award costs and attorney’s fees incurred where a parent has not provided time-sharing to the other parent, as well as order any other reasonable sanction as a result of noncompliance. In such instances, the need and ability to pay test under statute is not applicable. Rather, the power to award fees is triggered by the wrongful conduct of the custodial parent, without consideration of the financial resources of the non-custodial parent.
In this case, the trial court did not err as there was competent substantial evidence of specific violations of the parenting plan by the Former Wife to support the finding of contempt. There was also evidence in the record to support the finding that the Former Wife’s failure to comply with parenting and visitation orders was wilful.
Counselling Order
In this case, the trial court’s authority to order counselling for the Former Wife is not being challenged, rather, the issue is that the counselling provision were vague and overly-broad so as to be unenforceable. To that extent, the appeals court reversed the order to the extent that it required the Former Wife to submit to therapy under ambiguous conditions.
Attorney’s Fees
In this case, the trial court did not err in awarding the expert and attorney’s fees in accordance with the statute given the Former Wife’s conduct, despite the fact that the Former Husband had the ability to pay. In this case, the need and ability to pay test under statute is not applicable. Rather, the power to award fees was triggered by the wrongful conduct of the Former Wife, without consideration of the Former Husband’s financial resources.
The appeals court reversed that portion of the order requiring the Former Wife to obtain counselling and affirmed all others.

Case:               R.C. v. D.C.F
Court:             Third District Court of Appeal.
Trial Judge:   Cindy S. Lederman.
Attorneys:      Eugene F. Zenobi, Kevin Coyle Colbert, Karla Perkins, Patricia Murphy Propheter.
Issues:            Termination, Certiorari.
Holding:          Certiorari relief is available when an interlocutory order causes material injury that cannot be remedied on direct appeal. If this threshold requirement is met, then certiorari will only be granted when the order amounts to a departure from the essential requirements of the law. Jurisdiction lies to review an order compelling a psychological or physical evaluation under Florida procedural rules.  The order may be made only upon good cause shown and pursuant to notice and procedures as set forth by the Florida statutory requirements. These specify that such an order shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.  In this case, the trial court erred in that it failed to afford the Mother notice that she would be examined / questioned on whether or not she was pregnant and subsequently ordered to take a pregnancy test. There was no showing of good cause, as required by law, and no opportunity for a reflective response by her counsel, the hallmark of notice and due process.  In addition, the order entered by the trial judge fails to include any of the specific information required by rule and the appeals court quashed the order.

Case:              Elias v. Elias et al
Court:             Fourth District Court of Appeal.
Trial Judge:   David E. French.
Attorneys:     Nancy W. Gregoire, Joel M. Weissman, Ashley M. Johnson.
Issues:           Dissolution, Prenuptial Agreement, Property Division.
Holding:          In Florida, there is no cause of action for a legal separation. If a prenuptial agreement incorporates language such as, “if the parties become legally separated pursuant to judicial proceedings”, it is unclear, in the context of Florida law, what such language means. A contract provision is ambiguous if it is rationally susceptible to more than one construction. The interpretation of an ambiguous contractual term requires the submission of evidence extrinsic to the contract bearing on the parties’ intent. A trial court’s interpretation of a prenuptial agreement is reviewed de novo, as such agreements are governed by the law of contracts.
In this case, the trial court erred in when it reviewed the prenuptial agreement. Specifically, the trial court determined that the parties were legally separated pursuant to a judicial proceeding and ordered the sale of certain marital assets. This threshold determination, however, was based on a finding that the language of the prenuptial agreement was unambiguous when the provision, as noted above, is ambiguous. Since this rendered the trial court’s ultimate ruling moot, the appeals court vacated the trial court’s order determining the date of legal separation and the sale of marital assets. The matters were remanded for further proceedings, including the hearing of evidence to clarify the ambiguous clause.