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 1, 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:              Rudnick v. Rudnick
Court:             Fourth District Court of Appeal.
Trial Judge:   Martin H. Colin.
Attorneys:      Robin Bresky, Jonathan Mann, Seth E. Schneiderman.
Issues:            Child Support.

Holding:        A trial court can include a party’s bonus, or other form of elevated income, when calculating child support obligations if there is evidence establishing the bonus, or elevated income, is regular and continuous. In this case, the trial court erred when it relied strictly on the Former Husband’s total annual income, including the bonus, for the previous year when calculating his child support obligation when there was uncontroverted evidence that the bonus was due to a specific non-recurring event (i.e., the 2012 presidential election). The appeals court reversed and remanded for the trial court to make additional findings consistent with this opinion.

Case:              Gonzalez v. Parisi
Court:             Fourth District Court of Appeal.
Trial Judge:   Renee Goldenberg.
Attorneys:      Jacqueline R. Hernandez-Valdes, Claudia Moncarz.
Issues:            Child Support, Foreign Judgment. 

Holding:        A petitioner seeking to domesticate and enforce a foreign decree or judgment pertaining to child support obligations and arrearages must present a trial court with competent, substantial evidence in support of his or her claims. In this case, the trial court erred in finding that the Former Wife’s assertions regarding a purported document providing for the payment of child support, with annual indexed increases, was the same agreement given effect in a foreign decree, when there was no competent, substantial evidence on point. The appeals court reversed as to the trial court’s order granting the petition to domesticate because of the lack of competent substantial evidence of the document purporting to create the support obligation.

Case:              J.A.I and J.K.C. v. B.R.
Court:             Second District Court of Appeal.
Trial Judge:   R. Thomas Corbin.
Attorneys:      Luis E. Insignares, Robert L. Donald.
Issues:            Paternity. 

Holding:        Orders compelling DNA testing to establish paternity are appropriate for certiorari review. Florida statute provides the procedures to be used in determining paternity when children are born out of wedlock. These include establishing that a signed and notarized voluntary acknowledgment of paternity creates a rebuttable presumption of paternity. Any challenge to this voluntary acknowledgment of paternity must be commenced before the sixty (60) day limitation period expires, after which, this acknowledgment of paternity becomes an establishment of paternity, to be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger.

A man who believes that he may be the father of a child may bring an action to determine the paternity of the child when paternity has not been established by law or otherwise. Paternity would be established "by law" when there has been an adjudication of paternity or by the filing of affidavits or stipulation acknowledging paternity as provided by Florida statute. Paternity would otherwise be established when a child is born to an intact marriage and recognized by the husband and the mother as being their child. In such a case, the husband would be the child's legal father to the exclusion of all others. Under any other interpretation, a husband could never be more than a presumptive father absent an adjudication of paternity.

Courts have extended this principle courts to children whose parents are both listed on the birth certificate at the time of birth and who were married two months later. However, where a mother married her husband and they signed the acknowledgement of paternity after the challenger had filed his paternity action, the acknowledgement of paternity created only a rebuttable presumption of paternity.

In this case, the trial court erred when it departed from the essential requirements of the law in the Petitioner’s motion for genetic testing despite the fact that he was precluded from bringing a cause of action to challenge the paternity of the child. The Petitioner was barred insofar as he filed outside the required sixty-day limitation period and by virtue of the fact that the Mother and her Husband signing an acknowledgment of paternity. The appeals court granted the petition for writ of certiorari and quashed the trial court's order requiring the parties to submit to genetic testing.

Case:              Card v. Card
Court:             Second District Court of Appeal.
Trial Judge:   Olin W. Shinholser.
Attorneys:      Mark A. Sessums, Lauren E. Jenson.
Issues:            Attorney’s Fees. 

Holding:        The appeals court maintains jurisdiction over trial court’s orders capping the amount of attorney’s fees recovered in dissolution proceedings.  If a party agrees to the methodology used by the trial court in determining the award, the award will likely be affirmed, considering all other aspects are properly determined. Under the invited-error doctrine, a party may not make or invite error at trial and then take advantage of the error on appeal.

In this case, the trial court did not err in making its determination as to matching attorney’s fees without making factual findings as to the need of the Former Wife and the Former Husband’s ability to pay. Specifically, at trial, the Former Wife argued that the court did not need to assess reasonableness because of a Joint Stipulation Provision between the parties as to fees, and particularly that they would match. On appeal , the Former Wife sought an order beyond the scope of the Joint Stipulation Provision on the ground that the trial court erred in failing to make factual findings as to her need or the Former Husband’s ability to pay attorney's fees and costs.   The appeals court determined that the trial court did not err in awarding a final amount of attorney's fees on a matching basis without specific factual findings about a need for attorney's fees, the corresponding ability to pay, and the reasonableness of the award given the Former Wife’s position at trial, which relied on the matching provision. She was not now allowed to argue against the position upon which she previously relied.

Case:              Spreng v. Spreng et al  
Court:             Fifth District Court of Appeal.
Trial Judge:   Dawn D. Nichols.
Attorneys:      Shimene A. Shepard-Ryan, Horace Smith, Jr., Sheila M. Ennis.
Issues:            Attorney’s Fees. 

Holding:          In making an award for attorney’s fees and costs, a trial court is required to make written findings of fact as to the attorney’s reasonable hourly rate and the reasonableness of the hours expended.  Failure to do so constitutes reversible error. The order must also be based on factual findings, supported by substantial and cogent evidence regarding the recipient party’s financial circumstances and the payor’s ability to pay. Finally, a party must properly preserve an error for appeal by filing a motion for rehearing, or taking other necessary and timely procedural steps. Failure to do so can prove fatal to an appeal.

In this case, the trial court did not err in failing to consider the Former Wife’s ability to pay her own legal fees and costs and in failing to set forth the reasonableness of the time expended and the hourly rate used to calculate the fee.  The order under review detailed the history of the marriage and the present financial circumstances of the parties and established that the Former Husband had a significant net worth and income stream while the Former Wife did not. The appeals court affirmed the trial court order despite the fact that the written order did not clearly consider the Former Wife’s financial circumstances and needs as well as Former Husband’s ability to pay. Despite this deficiency in its factual findings, the error was not preserved for appeal because the Former Husband failed to file a motion for rehearing. 

Case:              Waheed v. Brummer
Court:             Fifth District Court of Appeal.
Trial Judge:   Clyde E. Wolfe.
Attorneys:      Robert S. Walton lll.
Issues:            Attorney’s Fees. 

Holding:          Objections raised on appeal must be the same as those raised below. In order to be preserved for appeal, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation.  In this case, the trial court did not err in taking judicial notice of affidavits filed by the opposing parties in support of the requested attorney’s fees. Doing so did not effect a situation where the trial court made an award of attorney’s fees despite a lack of competent, substantial evidence to support its findings as to the amount of hours reasonably expended and the reasonableness of the hourly rate and the fact that a witness was not properly sworn in at trial.  The appeal was dismissed as the appellant failed to preserve any of the arguments for appeal. He did not object to the trial court taking judicial notice of the two affidavits, both of which were sworn, or to the unsworn testimony of the particular witness. The appeals court noted, in taking into consideration the numerous proceedings initiated by the self-represented appellant related to the overall dissolution proceedings, that it was “close to reaching” a point where it would prohibit him from filing additional appeals without being represented by a member of the Florida Bar.

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.