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 Three Weeks Ending December 26, 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:              Geraci v. Geraci
Court:             Second District Court of Appeal
Trial Judge:   Richard A. Weis, Cheryl K. Thomas
Attorneys:     Patricia K. Kuhlman, David A. Maney, Mark A. Linsky, Raymond T. Elligett, Jr., Amy S. Farrior, David M. Carr, Matias Blanco, Jr.
Issues:            Property Distribution, Alimony, Antenuptial Agreement

Holding:  A court may determine that an antenuptial agreement was abandoned or rescinded by the conduct of the parties during their marriage. This determination must be based on competent, substantial evidence of the parties’ conduct during the marriage. In this case, the trial court did not err in holding that, after reviewing all the evidence as to the parties’ conduct, the antenuptial agreement did not apply to an alimony or equitable distribution upon dissolution. However, the trial court was unclear as to its consideration regarding a certificate of deposit the Former Wife allegedly removed prior to the property division. As such, the appeals court affirmed on the issues of division and distribution and remanded the issue the certificate of deposit for consideration and an amended judgment.  

Case:              Porter v. Porter
Court:             Second District Court of Appeal
Trial Judge:   Marion L. Fleming
Attorneys:     Joseph J. Registrato, Seth R. Nelson, Kathryn M. Ashley
Issues:            Equitable Distribution, Parenting, Support. 

Holding:  If parties to a dissolution properly enter into stipulations regarding equitable distribution, then the stipulations bind the parties and also the court. In this case, the trial court erred in refusing to enforce the parties' stipulation regarding a vehicle and associated debt. In the final equitable distribution scheme the parties' debt, which exceeded their assets, was equally distributed between the parties. The trial court later made a further distribution based on a later unsworn representation by the Former Wife's counsel. No one disputed that the parties properly entered into the stipulations. The appeals court reversed the equitable distribution award and remanded with directions for the court to distribute the particular asset and its associated debt to the Wife. The trial court was also directed to refashion the portions of the equitable distribution scheme to which the parties did not stipulate in order to effect an approximately equal a distribution of the parties' debt. 

Case:              Brummer v. Brummer
Court:             Fifth District Court of Appeal
Trial Judge:   Willard Pope
Attorneys:      Robert H. McLean, Henry G. Ferro
Issues:            Parenting, Property Distribution, Child Support

Holding:  Ordering Psychological Evaluations & Obligations to Pay:  When formulating a time-sharing plan, a court may order a psychological evaluation of the parties and the children in concert with findings that this is in the best interests of the children. The court may also order one of the parties to pay for the evaluation, but it must find that the party has the ability to do so. In this case, the trial court determined the psychological evaluation of the parents and children was required and the Father was obligated to pay for it. However, the trial court did not make the necessary findings as to the children’s best interests and the Father’s ability to pay. The appeals court reversed the portion of the Final Judgment addressing the evaluation and its payment and remanded to make determinations on those issues. 

Non-Marital Property Determinations:

The determination and valuation of non-marital property must be done on competent and substantial evidence. In this case, the trial court erred in that it failed to properly consider the non-marital assets of the Former Husband and their characterization prior to distribution.  The relevant portion of the equitable distribution plan was reversed, and on remand, the trial court was directed to award to the Father his non-marital assets and properly determine the value of the firearm collection. 

Imputation of Income: 

Finally, the imputation of income in the Final Judgment for purposes of child support determinations must be supported by competent, substantial evidence. In this case, the trial court erred in imputing income to the Father in the absence of competent, substantial evidence. Accordingly, that part of the final judgment is reversed, and on remanded.

Case:              Assimenios v. Assimenios
Court:             First District Court of Appeal
Trial Judge:   Linda F. McCallum
Attorneys:     William S. Graessle, Jonathan W. Graessle, Barry S. Sinoff, Michael J. Korn
Issues:            Child Support, Parenting. 

Holding:  Imputing income to a party, or making a finding that they are voluntarily unemployed or underemployed, must be done in reliance on sufficient evidence. Notice and an opportunity to be heard is required when facing proceedings for breaching a parenting or support order.  In this case, the trial court erred in ordering the Former Wife responsible for the full cost of missed or cancelled appointments required under a parenting plan without affording her the opportunity to be heard and present evidence on point. In so doing, the trial court did not assess if her conduct was intentional or not, which is improper. The appeals court reversed the portion of the order imputing income to the Former Wife and remanded the case to the trial court to reconsider the issues. 

Case:              Winder v. Winder
Court:             First District Court of Appeal
Trial Judge:   Elzie S. Sanders
Attorneys:     Justin D. Jacobson, J. Mark Dubose, Jr., Karen S. Yochim
Issues:           Equitable Distribution, Alimony, Attorney’s Fees

It is improper to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings. However, if a spouse dissipates a marital asset during dissolution, resulting in a finding of misconduct by the trial court, then that asset is assigned to the spending spouse. In determining such misconduct and that a spouse has dissipated marital assets, the trial court must find the spouse acted intentionally. Such a finding is based on evidence showing that the marital funds were used for one party's own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. Misconduct is not shown simply by mismanagement or by the squandering of marital assets in a way of which the other spouse disapproves. A trial court’s ruling on equitable distribution is reviewed for an abuse of discretion.

In this case, the trial court erred in finding dissipation when it did not find misconduct on the part of the Former Husband in his handling of two marital assets. The evidence showed that certain funds were dissipated, but not improperly. Rather, the funds were used to pay marital expenses, including temporary support for the Former Wife, while the dissolution was pending.  On remand, the trial court was directed to exclude the funds received from the assets from the equitable distribution scheme.


A trial court’s award of permanent alimony is reviewed for an abuse of discretion. In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in Florida statute supporting an award or denial of alimony. The test for determining an award of alimony is whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance, as based on the evidence. The purpose of permanent periodic alimony is not to divide future income to establish financial equality.  Marriages of less than 17 years in duration are of moderate duration (“grey-area” marriages) in which there is no presumption for or against permanent alimony.  Permanent alimony may be awarded following a marriage of moderate duration, if such an award is appropriate based upon clear and convincing evidence related to the enumerated factors (including but not limited to the financial resources of each party, the value of marital and non-marital assets and liabilities distributed to each, the standard of living established during the marriage, the contribution of each party to the marriage, and the sources of income available to either party.) Finally, in awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties.

In this case, the trial court erred in ordering permanent periodic alimony for the parties’ 10-year marriage in the absence of adequate factual findings as to the financial resources of each party and other relevant factors under statute. As this was a “grey-area” marriage, such findings in the final judgment of dissolution of marriage were required. The trial court’s failure to make such factual and written determinations precluded meaningful appellate review. In addition, the alimony award was reversed because the trial court failed to expressly find that no other form of alimony would be appropriate before awarding permanent alimony. On remand, the trial court was directed to take into consideration the effect of the appeal court’s holding regarding the exclusion of the funds from the two dissipated marital assets, as it would impact the financial resources of both parties. Further, given that the Former Husband’s current ability to pay alimony is at issue, the trial court was directed that, should it be faced with a situation where the Former Wife has a clear need for permanent alimony in the absence of his current ability to pay, then a nominal award of permanent alimony would preserve the trial court’s jurisdiction to revisit this matter, until a substantial change in the parties’ respective financial circumstances arises.

Attorney’s Fees

An award of attorney’s fees is based on the need of the party seeking the fees and the ability of the other party to pay the fees. The trial court must also make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors. A dissolution order directing a party to pay the other party’s fees and costs, which recites simply that the total amounts ‘are reasonable time spent and hourly rates,’ is insufficient.

In this case, the trial court erred as it made an award of attorney’s fees for the Former Wife when it did not make specific findings as to her need, the Former Husband’s ability to pay, and the reasonableness of her attorney’s fees and costs. As such, the appeals court was unable to accurately evaluate the propriety of the award. The appeals court therefore reversed  the order on attorney’s fees and remanded to the trial court for reconsideration in light of the changes in the parties’ relative financial resources following the trial court’s ultimate ruling. 

Case:              Wood Jr. v. Wood
Court:             First District Court of Appeal
Trial Judge:   Mark J. Borello
Attorneys:      Denise Watson, William S. Graessle, Michael J. Korn
Issues:            Child Support, Imputing Income

Holding:  Florida statute requires imputation of income to an unemployed or underemployed parent if such status is found by the court to be voluntary on that parent’s part. The trial court must undertake a two-step analysis of the circumstances and make findings based on cogent and substantial evidence. First, the trial court must conclude that the termination was voluntary; second, the court must determine whether the individual’s subsequent unemployment or underemployment resulted from the spouse’s pursuit of his or her own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received. While a parent’s motive in voluntarily quitting a job is relevant, it is simply one factor to be considered.

The party seeking a downward modification in their child support obligation bears the “heavier burden” where the original child support amount was by agreement of the parties.

The standard of review governing a trial court’s decision to modify child support and also to impute income for the purposes of calculating child support obligations is abuse of discretion.

In this case, the trial court erred when it abused its discretion when it granted the Former Husband’s motion to reduce his child support obligation; eliminate his arrearages; remove the security requirement for his payments; and impute income to the Former Wife when the evidence before it was insufficient and when it failed to undertake the required two-step analysis for imputing income.  The trial court improperly imputed income to the Former Wife solely because she voluntarily left her new employment and its order contained no particularized findings related to the current job market, her recent (5 years) work history, occupational qualifications, or the prevailing earnings level in the local community.  As well, the Former Husband’s motion to reduce his child support obligation was not supported by evidence sufficient to discharge his burden to establish grounds for a reduced child support obligation. He simply relied on a chart/child support worksheet indicating a reduction in his net income. The appeals court reversed and remanded with instructions for the trial court to reconsider the matters on proper evidence.

Case:              Caine v. Caine
Court:             First District Court of Appeal
Trial Judge:   Mary Polson.
Attorneys:     James M. Levy, E. Jane Brehany.
Issues:            Equitable Distribution.

Holding:  Florida law holds that a party is not entitled to any credits or setoffs upon the sale of the marital home unless the parties' settlement agreement, final judgment of dissolution of marriage, or final judgment equitably distributing assets or debts specifically provides that certain credits or setoffs are allowed or given at the time of the sale. If the parties do not have a settlement agreement involving the marital home, then the court shall consider specific factors before determining credits or setoffs in the final judgment. These include, but are not limited to; exclusive use and possession of the marital home is being awarded; alimony and child support awards and if such awards are being awarded to address expenses related to the marital home; value of the marital home to the party in possession and any other factor necessary to bring about equity and justice between the parties.

In this case, the trial court erred when it denied the Former Husband’s request for a set off of the amount of the fair rental value of the former marital home given that the final judgment was silent concerning his entitlement to a credit or setoff in the marital home.   The final judgment provided that all proceeds from the sale of this residence shall be equally divided by the parties after accounting for the expenses allocated to each party as stated above. The trial court failed to consider the required factors under statute. The appeals court remanded the credit/setoff issue for further proceedings.  

Case:              Topel v. Topel
Court:             Fifth District Court of Appeal.
Trial Judge:   Sally D.M. Kest.
Attorneys:      Sherri K. Dewitt, Marcia K. Lippincott.
Issues:            Child Support, Spousal Support.

Holding:   Although trial judges have broad discretion in setting temporary alimony awards, any such award must be supported by competent, substantial evidence that demonstrates the need for support and the paying spouse's ability to pay. The determination of the ability to pay alimony should be based on the party's net income. In this case, the trial court erred in relying on the gross income figure for the Former Husband, and ordering a temporary support award which exceeded his ability to pay. The appeals court vacated the temporary relief order and remand for reevaluation of all issues and the Former Husband making full and current disclosure of his income and expenses.

Case:              Berry v. Berry
Court:             First District Court of Appeal.
Trial Judge:   Angela C. Dempsey.
Attorneys:      William E. Whitlock, III, Ethan Andrew Way.
Issues:            Dissolution, Procedure.

Holding:  Florida Rules of Judicial Administration provide that prior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration. Such a motion must be filed within 20 days of the order of disqualification, unless good cause is shown for a delay in moving for reconsideration or other grounds for reconsideration exist. In this case, the trial court erred in granting further relief for the Former Wife while the appeal was pending. Specifically, the Former Wife appealed an order denying her motion to vacate the final judgment of dissolution of marriage and set aside the parties’ martial settlement agreement. Then, while the appeal was pending, the trial court granted her petition for writ of prohibition upon finding that an ex parte conference held during a hearing on her motion to vacate constituted a legally sufficient basis for the judge’s disqualification. The appeals court held that, pursuant to the Florida Rules of Judicial Administration, the proper procedure would be for the Former Wife to seek relief by filing a motion requesting the successor judge to reconsider the disqualified judge’s order. However, since she was precluded from filing such a former motion pending the appeal, the court remanded with directions that she be enabled to file her motion within twenty days of the issuance of the appeals court ruling. 

Case:              Oliver v. Stufflebeam
Court:             Third District Court of Appeal.
Trial Judge:   George A. Sarduy.
Attorneys:      Cristina Alonso, Elizabeth F. Schwartz, Daniel B. Rogers, Shannon P. Minter.
Issues:            Dissolution, Same-Sex Marriage. 

Holding:  Florida law does not recognize the validity of same-sex marriages. As such, in Florida, a petition for dissolution of marriage lacks a case or controversy, and therefore standing before the courts. Given Florida’s exclusive right, subject only to the confines of the Federal Constitution, to define both marriage and its dissolution, and the state of Florida’s recognition of marriage as only between a man and a woman, then same-sex couples do not have standing to seek the dissolution of a marriage that, by Florida law, does not exist. An action for annulment may lie insofar as, in granting an annulment, Florida typically determines the validity of a marriage in accordance with laws of the place where the marriage occurred. However, a court need not recognize as valid marriage which is valid in the jurisdiction where consummated if such recognition would affront the public policy of the forum state. In this case, the trial court was correct in determining that a petition for dissolution of marriage lacks a case or controversy requiring the expenditure of judicial labor. The appeals court affirmed the dismissal of the petition for dissolution. 

Case:              In Re: the adoption of K.A.G
Court:             Fifth District Court of Appeal
Trial Judge:   Alicia Latimore
Attorneys:     Mark M. O’Mara, Lorna M. Truett, Alyssa Flood, Bryan S. Gowdy, Jessie L. Harrell, Thomas Wade Young, John R. Hamilton, Jamie Billotte Moses
Issues:            Adoption, Termination of Parental Rights

Holding:  Under Florida statute, a child’s best interests are the paramount consideration when the court considers an adoption. The standard of review in a termination of parental rights case is highly deferential. The appeals court will review a judgment of adoption for substantial, competent evidence. A trial court’s finding of clear and convincing evidence will not be overturned unless it may be said that, as a matter of law, no one could reasonably find such evidence to be clear and convincing.

Additionally, Florida statute allows the trial court to terminate parental rights pending adoption if it determines, by clear and convincing evidence, and supported by written findings, that the parent has executed a valid consent to adoption. Such consent shall be obtained under and according to the requirements of relevant Florida statute. Therefore, before the trial court can consider the best interests of the child, it must first determine that the parent’s consent was properly given. A court may consolidate as many issues as is practical in adoption and dependency/termination proceedings and to conduct joint hearings or trials of any issues in related family cases. 

Finally, a trial court is authorized, in its sound discretion, to appoint a guardian ad litem for a child in an adoption proceeding. Courts have the inherent authority to protect children by appointing guardians ad litem when appropriate.

In this case, the trial court erred when it dismissed the adoption petition of the child’s Grandmother as it failed to find that Father’s consent to the adoption was, or was not, valid. If the trial court determined Father’s consent was valid, it should have then determined, in the same proceeding, whether the Grandmother should be allowed to adopt the Child. The trial court had before it two separate questions: (1) whether the Father’s parental rights could be terminated based upon his consent; and (2) if so, was adoption by the Grandmother in the Child’s best interests. Different evidentiary burdens of proof apply to each determination. The termination of parental rights must be proven by clear and convincing evidence. The best interests determination is to be proven by a preponderance of the evidence. The trial court further erred in its determination that it was not authorized to appoint a guardian ad litem for the Child. In fact, the relevant statute authorizes the trial court, in its sound discretion, to appoint a guardian ad litem for a child in an adoption proceeding. In addition, courts have the inherent authority to protect children by appointing guardians ad litem when appropriate. However, the trial court was correct in its determination that the Father’s consent to termination of his parental rights was not unconditional, but rather, was conditioned on the trial court granting Grandmother’s petition to adopt Child.

The matters were remanded with directions that, if the trial court concludes that the adoption by the Grandmother is not in the Child’s best interests, then the Father’s consent to the termination of his parental rights is deemed withdrawn. Finally, the recent adoption of Florida Family Law Rule of Procedure amendments allow a court to consolidate as many issues as is practical in adoption and dependency/termination proceedings and to conduct joint hearings or trials of any issues in related family cases. 

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