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 Week Ending February 8, 2015

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:             Moore v. Moore
Court:            Second District Court of Appeal.
Trial Judge:   Paul L. Huey.
Attorneys:     Virginia R. Vetter, Lorena L. Kiely.
Issues:           Alimony, Child Support.

Holding:        For the purpose of determining the amount of income that is attributable to a spouse in computing alimony, Florida law defines "income" as any payment to an individual, including wages, salary, commissions and bonuses, compensation as an independent contractor, worker's compensation, disability benefits, annuities, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal, state government, or local government. An award of alimony must be based on the income that is available to the party (ie; net monthly income).

Additionally, in calculating a party's monthly income, business expenses must be deducted from the party's gross income. In determining the amount of income that is attributable to a parent in computing child support, Florida statute defines "gross income" to include
business income from self-employment, partnership, close corporations, and independent contracts. 'Business income' means gross receipts minus ordinary and necessary expenses required to produce income. A trial court's determination of a party's income has to be supported by substantial, competent evidence. Where there is a significant dispute in a party's income, meaningful appellate review is hampered by the absence of findings as to how the trial court determined the income amount.

In this case, the trial court abused its discretion in determining the Former Husband's monthly income because it failed to consider his business expenses. Although the trial court found that the Former Husband's testimony lacked credibility and that his business expenses were "grossly inflated," the trial court failed to give the Former Husband credit for any of his business expenses. The appeals court reversed the financial aspects of the final judgment and remanded for determination of the Former Husband's net monthly income and the amount of permanent alimony and child support to be awarded.

Case:              Henderson v. Henderson
Court:             Fifth District Court of Appeal.
Trial Judge:   John M. Alexander.
Attorneys:      Beth M. Terry, Reese J. Henderson, Jr..
Issues:            Custody, Child Support, Attorney’s Fees. 

Custody Order

The standard of review for the trial court's findings and determination regarding primary parental responsibility is abuse of discretion. A trial court's findings regarding the best interest of the child must be supported by competent, substantial evidence. Awarding sole parental responsibility to one parent is inappropriate without a specific finding that shared responsibility would be detrimental to the child. In this case the trial court erred regarding the custody order as it failed to contain a specific finding that shared responsibility would be detrimental to the children.  

Attorney’s Fees

Florida statutes, expressly requires the court to make findings regarding each party's financial needs and ability to pay. Where an order denying attorneys' fees fails to contain sufficient factual findings to facilitate meaningful appellate review of the trial court's decision, the appellate court must reverse and remand for the trial court to make further findings. The standard of review for an award or denial of attorney's fees in a dissolution of marriage proceeding is abuse of discretion. In this case, the trial court further erred when it denied attorneys' fees without findings as to the parties' needs, abilities to pay, and misconduct. Here, the evidence presented a clear disparity in income between the parties, which was not considered or referred to in the order.

Child Support

a.  Trial court orders modifying child support are reviewed for an abuse of discretion. Florida statutes requires that all child support orders and income deduction orders entered on or after October 1, 2010, must provide for child support to terminate when a child turns eighteen years of age, if the child is between the ages of 18 and 19 and still in high school, or subject to an agreement between the parties. The trial court erred in awarding continuing child support obligations when it failed to provide an automatic decrease in child support once the parties’ older child reached majority. Further, a Settlement Agreement between the parties as well as a prior Judgment and the Custody Order all contemplated reducing support payments when the older child reached majority and terminating the payments when the younger child reached majority.

b.  A trial court must reduce the support obligation of a parent who has visitation for a "substantial amount of time" with a child. Florida statutes, provides that a substantial amount of time means that a parent exercises time-sharing at least 20 percent of the overnights of the year.  The trial court erred in its calculation of Former Wife's temporary child support obligation because it failed to credit her with any overnights.

The appeals court reversed the custody order, award as to attorney’s fees, continuing child support obligations, and temporary child support obligation.   

Case:              Kemp & Associates v. Chisholm et al
Court:             Fifth District Court of Appeal.
Trial Judge:   C. McFerrin Smith, III.
Attorneys:     Richard L. Pearse, Jr., Jonathan D. Kaney III, Jonathan D. Kaney Jr..
Issues:           Adoption, Retroactivity. 

Holding:       While due process generally requires notice of adoptions to putative biological fathers, such notice is not an absolute right. In Florida, the unmarried father must take some statutorily mandated steps to protect his inchoate due process rights. An unwed father obtains a protected interest if he establishes a full commitment to the responsibilities of parenthood and participates in the upbringing of his child. Under the Full Faith and Credit Clause, Florida is obligated to recognize judgments, including adoption judgments, which have been validly rendered in the courts of sister states, an exception exists when the laws of the foreign state seriously depart from Florida's core values.

The retroactive application of case law holding that notice to an unwed father of the pending adoption is required pursuant to the United States Supreme Court’s decision of Stanley v. Illinois, 405 U.S. 645 (1972). However, full retroactive effect in cases still open on direct review could invalidate an adoptions finalized many years ago. This conflicts with intent to create permanence with adoption. Adoptive children have a right to permanence in their adoptive placements, as adoptive parents have an interest in retaining custody of a legally adopted child.

In this case, the trial court erred as it refused to recognize a 1961 Texas adoption judgment under which the claimant was adopted and the putative biological father, now deceased. The trial court decision would permit the claimant here, and an adopted child in general, to inherit from a biological father decades after the adoption was finalized. The effect of the trial court’s decision calls into question the validity of adoption judgments under the laws of Florida and other states that did not require notice to putative fathers at the time of the child's adoption. This would lead to increased litigation and disruptions to many families, both adoptive and biological. Public policy requires that adoption decrees that have been entered without the consent of the natural father must be honoured as family and financial decisions are, and have been, made in reliance on the validity of those decrees. Those reliance interests foreclose retroactive application of the above-noted ruling.

The appeals court reversed the trial court’s decision to refuse a Texas adoption judgment from 1961 and remanded with directions to enter judgment in favour of the opposing party.

About DivorceCourtAppeals.com and Bruce Law Firm, P.A.

The Bruce Law Firm, P.A. is limited to the resolution of marital and family la w matters in Florida’s trial and appellate courts.  The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts.  The firm pays referral fees in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.