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 November 30, 2014

Case:               Daoud v. Daoud
Court:              First District Court of Appeal.
Trial Judge:    Terrance R. Ketchel.
Attorneys:       Jeremiah J. Talbott, Tonya C. Petermann.
Issues:             Equitable Distributions, Contempt. 
Holding:          A trial court lacks jurisdiction to alter or modify the property rights awarded to the other former spouse in the dissolution judgment if there are no appropriate pleadings by the other party. Generally, a lower court does not have jurisdiction to modify property rights after an adjudication of those rights has been made in a judgment of dissolution, unless it specifically reserves the jurisdiction to do so. This general reservation does not empower a trial court to address or redistribute vested property between the parties.  In this case, the trial court erred as it failed to specifically reserve jurisdiction to alter the prior distribution of property. Further, the Former Husband failed to properly plead for modification of the real property distribution contained in the dissolution judgment, upon which the trial court acted. The appeals court reversed on these issues and remanded for further proceedings.

Case:              Merkulova v. Elbouatmani
Court:             Fifth District Court of Appeal.
Trial Judge:   Heather L. Higbee.
Attorneys:      David T. Roberts, Shannon L. Akins, Lora S. Scott.
Issues:            Child Support. 
Holding:          The monthly gross income figure used to calculate the amount of a payor’s
retroactive child support obligation must be based on, and supported by, competent, substantial evidence. In this case, the trial court erred in establishing the monthly gross income figure used to calculate the amount of the Father’s retroactive child support from the date of the filing of the petition through the hearing on the matter without competent, substantial evidence as to that figure. The appeals court reversed as to the retroactive child support award and remanded with instructions to recalculate it to correspond with evidence presented below.

Case:              Ellisen v. Ellisen 
Court:             Fifth District Court of Appeal.
Trial Judge:   John M. Alexander.
Attorneys:      Adam B. Schemer, Sharon B. Johnson.
Issues:            Alimony. 
Holding:          If a former spouse files on a modification petition then the other party, and the court, is on notice that he or she is seeking modification or termination. This is particularly so if coupled with a pretrial stipulation. Further, per Florida statute, the burden of proof required to modify a settlement agreement and that required to modify an award established by court order shall be the same.  In this case, the trial court erred by narrowly construing the Former Husband’s modification petition as a request to terminate alimony, thereby rejecting his request for modification. Further, the trial court erred in applying an incorrect burden of proof to the matter. Specifically, the trial court determined that because the alimony award had bee determined by agreement, the Former Husband had a heavier than usual burden of proof.  The appeals court reversed that portion of the trial court’s order denying the former husband’s petition to modify or terminate alimony, and remand with directions that the trial court reconsider the issue applying the correct burden of proof.

Case:              Arquette v. Rutter
Court:             Fifth District Court of Appeal.
Trial Judge:   Bob Leblanc.
Attorneys:      J. Brian Phillips.
Issues:            Child Support. 
Holding:          Under the Florida's Uniform Interstate Family Support Act ("UIFSA"), a Florida court may modify a child support order issued in another state under one of the following circumstances:

  1. After notice and hearing the tribunal finds that: a) the child, individual obligee, and obligor do not reside in the issuing state; b) the petitioner seeks modification and is not a Florida resident; and c) the Florida tribunal has personal jurisdiction over the respondent.
  2. The tribunal finds that it has personal jurisdiction over an individual party or the child and that all of the individual parties have filed a consent in the issuing tribunal to the Florida tribunal's modifying the support order and assuming continuing exclusive jurisdiction over it.

A judgment entered by a court which lacks subject matter jurisdiction is void and is subject to collateral attack under Florida procedural rules at any time. 
In this case, the trial court erred in modifying a child support order from California (per the Former Husband’s petition) as it lacked subject matter jurisdiction to do. Neither the Former Wife nor the child resided in Florida. Moreover, nothing in the record indicated that either party had filed a consent in the California court allowing the Florida court to modify the child support order. The appeals court reversed and remanded for the trial court to vacate the order modifying the California child support order.

Case:              Kirkland v. Kirkland
Court:             First District Court of Appeal.
Trial Judge:   Linda F. McCallum.
Attorneys:     James Preston Brunet.
Issues:            Dissolution, Child Support, Jurisdiction.
Holding:          A Judgment of Dissolution of Marriage is a non-final order if it reserves jurisdiction and contemplates the exercise of additional judicial labor. In this case, the trial court explicitly reserved jurisdiction as to child support. The appeals court therefore declined to address child support.

Case:              Wood v. Blunck
Court:             First District Court of Appeal.
Trial Judge:   Daniel F. Wilensky.
Attorneys:     Brian P. North, Mary Esther, Stefani K. Nolan, Shachar D. Spiegel, Clyde M. Taylor III, L. J. Arnold IV.
Issues:            Alimony. 
Holding:          To justify a modification of alimony, the party seeking modification must establish (1) a substantial change of circumstances; (2) that the change was not contemplated at the time of the final judgment of dissolution; and (3) that the change is sufficient, material, permanent, and involuntary. The substantial change of circumstances necessary to modify an alimony award must bear on either the payee spouse’s need for alimony or the payor spouse’s ability to pay it.  For example, when the payee spouse’s need decreases significantly, alimony should ordinarily be modified downward even if the payor spouse has ample ability to pay the original amount. However, the fact that the income of the spouse receiving alimony has increased will not necessarily justify modification of the award. A variety of factors must be considered. The court’s ultimate decision is reviewed under the abuse of discretion standard. Although courts have discretion in determining the amount of alimony to award, the comparison of a party’s expenses and income with the amount of alimony is an important consideration.
In this case, the trial court erred as its findings do not indicate a proper exercise of discretion under the principles governing requests to modify alimony. An improvement in the Former Wife’s financial position appeared to be a substantial change of circumstances. The Former Wife’s pre-alimony income had increased by sixty-three percent. The record did not indicate what her expenses were at the time of the final judgment but it  did indicate that the existing award exceeded her current pre-alimony deficit. While the trial court determined that the amount of the Former Wife’s spending reflected a lifestyle below the standard established during the marriage, it did not make findings to indicate what amount of spending would be commensurate with that lifestyle or what factors, if any, offset the substantial increase in her earnings. While the Former Wife’s financial situation had improved, the same could not be said for the Former Husband. The appeals court considered the Former Husband’s ability to pay remained the same and relied on the figures in the final judgment and concluded that the trial court’s finding of no substantial change of circumstances is inconsistent with its findings concerning the Former Wife’s income and expenses. In so ruling, the appeals court declined to comment on whether modification was necessarily required at the time and simply concluded that the order was insufficient to support the trial court’s result. The matter was reversed and remanded for reconsideration.

 Case:              Van Exter v. Diodonet-Molina
Court:             Third District Court of Appeal.
Trial Judge:   Antonio Marin.
Attorneys:      James H. Wyman.
Issues:            Paternity, Custody, Child Support.
Holding:          Child support awards and arrearages must be based on competent, substantial evidence of the parties’, and notably the payor’s, net income. The trial court must determine the net income of each parent pursuant to applicable Florida statutes, and include the findings in the final judgment. If the trial court fails to make adequate findings, the appeals court is required to remand for determination of child support. When determining an award of attorney’s fees, the primary factor a judge considers is the financial resources of the parties. This determination is properly made at the time of final judgment, when the trial court can determine the proper amount of attorney’s fees to award based on the parties’ financial situation and ability to pay at the time.
Child Support & Arrearages
In this case, the trial court erred, and abused its discretion in entering the final judgment because it failed to make sufficient findings with respect to the payor father’s income. In its judgment, the trial court concluded that the father must pay as set amount, based on the Child Support Guidelines.  However, the trial court failed to explicitly state how it calculated that amount and it did not include any findings of the payor father’s gross income or applicable deductions. The trial court also failed to include any explicit findings as to the recipient mother’s income.  Likewise, the trial court erred when it failed to include in the final judgment sufficient findings to establish child support arrearages. The lack of findings in the final judgment was an abuse of discretion.
Attorney’s Fees
In this case, the trial court erred in that, at the time of the final judgment, it made no specific findings of the father’s ability to pay, as it should have done.
The appeals court reversed and remanded on these issues.