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 Two Weeks Ending September 13, 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:              Hahamovitch v. Hahamovitch
Court:            Florida Supreme Court.
Trial Judge:   Martin Colin
Attorneys:   Jeanne Brady, Frank Brady, Robert Sidweber, Karent Weintraub, Jane Kreusler-Walsh, Rebecca Vargas, Stephanie Serafin, Joel Weissman, and Sarah Saull.
Issues:            Prenuptial Agreements.

Holding:         In short, the Court approved of the Fourth District's prior opinion, and determined that a general waiver of all marital claims and property rights in a prenuptial agreement is sufficient to waive any interest in property created during a marriage due to marital efforts despite there not being a specific waiver of marital claims related to a spouse's earnings, assets acquired with those earnings, or the enhanced value of the other spouse's property resulting from marital labor or funds.  The decision resolves a conflict that existed between the Fourth District (no specific waiver required) and the Second and Third Districts (which required a specific waiver).

Case:              Airsman v. Airsman
Court:            Second District Court of Appeal.
Trial Judge:   Joseph G. Foster.
Attorneys:     Cynthia B. Hall.
Issues:           Change of Name.

Holding:         The test for changing a child's name is whether it is in the child's best interests or is necessary for the welfare of the child. A child's surname should remain unchanged absent evidence on point. The party seeking to change a child's name bears the burden of proof. Conclusory assertions are insufficient.  In this case the trial court erred as the change of surname was not supported by competent, substantial evidence that the child's best interests were served, or that the welfare of the child was at risk. The appeals court reversed and remanded.

Case:              Rutan v. Rutan
Court:            Second District Court of Appeal.
Trial Judge:   Peter Ramsberger.
Attorneys:     Matthew R. McLain, Jane H. Grossman.
Issues:            Alimony.

Holding:     A trial court may award alimony upon sufficient evidence and factual findings regarding the respective parties’ need and ability to pay. The burden to show financial need and the former spouse's ability to pay lies with the party requesting alimony. In this case, the trial court erred in awarding alimony as it failed to make findings sufficient to allow meaningful appellate review, particularly regarding the Former Husband's income. The Former Wife failed to meet her burden of proving the Former Husband's ability to pay. The appeals court reversed.

Case:              Wolfson v. Wolfson
Court:            Third District Court of Appeal.
Trial Judge:   Stanford Blake.
Attorneys:     Sandy T. Fox, Karen B. Weintraub, Robert W. Sidweber.
Issues:           Parenting, Certiorari.

Holding:       Child custody determinations in a judgment of dissolution of marriage may be varied only if a movant can prove modification is required by a substantial and material change in circumstances, and that the child’s best interest will be promoted by such a modification. Generally, both parties must be given notice and opportunity to be heard prior to any modification, unless there is an actual, demonstrated emergency situation, such as where a child is threatened with physical harm or is about to be improperly removed from the state. Even in such instances, every reasonable effort should be made to ensure both parties have an opportunity to be heard. In this case, the trial court erred as it departed from the essential requirements of law when it entered an order granting an emergency request for temporary supervised visitation without providing both parties an opportunity to be heard.  The appeals court granted a petition for certiorari with respect to the order and remanded for further proceedings.

Case:              Gentile v. Gentile
Court:            Fourth District Court of Appeal.
Trial Judge:   Timothy L. Bailey.
Attorneys:     Stephen H. Butter, Jason H. Haber, Caryn Goldenberg Carvo.
Issues:            Equitable Distribution.

Holding:       A trial court should adhere to the terms of a settlement agreement in making an equitable distribution of assets, including provisions as to matters for which mediation is sought. A trial court should conduct an evidentiary hearing if there is dispute. In this case, the trial court erred in granting the Former Wife’s motion and ordering certain real property (a marital asset) be divided pursuant to appraisals for mediation proceedings when the record did not show that property division was subject to mediation. The parties had a settlement agreement that may have addressed the matter and upon which they may need to rely. The appeals court reversed and remanded to determine whether the settlement agreement contemplated resolution and proper division and valuation of the property.

Case:              Corcoran v. Corcoran
Court:            Fifth District Court of Appeal.
Trial Judge:  John M. Alexander.
Attorneys:     Leonard R. Ross, Sara E. Glover, Deborah L. Greene, Andrea C. Jevic.
Issues:           Alimony, Attorney’s Fees, Equitable Distribution, Parenting.

Holding:    A trial court shall make findings of fact as to modification of alimony. When determining attorney’s fees, a trial court considers the parties’ respective financial situations. A trial court must indicate what evidence it relied on for its findings regarding shared parental responsibilities and contempt of court. After a dissolution of marriage, the parties are equally responsible for all payments necessary to maintain their ownership of the marital property until its sale, including mortgage payments, taxes, insurance and repairs.

In this case, the trial court erred as it:

a.     reduced the Former Wife’s monthly in the absence of specific findings of fact.
b.     awarded attorney’s fees in the absence of specific findings as to the parties’ financial need and ability to pay.
c.     failed to  identify the evidence it relied on in making an order regarding shared parental responsibilities and the Former Wife being contempt of court.
d.     failed to hold the Former Wife solely responsible only for repairs to the marital home or, in the alternative, to indicate an evidentiary basis to hold her responsible for all future repairs.

The appeals court reversed and remanded for reconsideration.

Case:              Bailey v. Bailey
Court:            Fourth District Court of Appeal.
Trial Judge:   Nicholas R. Lopane
Attorneys:     John E. Schwencke and Adam M. Zborowski of Nugent Zborowski & Bruce, Michael J. Alman, Jamie D. Alman.
Issues:            Time-sharing, Certiorari, Notice.
Holding:         Certiorari
Certiorari will lie if an order compels production of confidential records and requires compulsory examination pursuant to Florida Rules of Civil Procedure. The issue on certiorari review is whether the order departs from the essential requirements of law and results in material injury which cannot be adequately remedied on appeal.


Proper notice of a motion must be given to opposing parties failing which the resulting order may be reviewed.  Twenty-four hours’ notice of a hearing on a motion may be inadequate.

Evaluations and Release of Records

Motions for the compulsory production of confidential records and the appointment of a social investigator may be subject to certiorari review. Parties to such motions must be provided adequate notice. In this case, the trial court improperly ordered the appointment of a social investigator in regards to the Father, and improperly compelled him to produce confidential records and undergo a compulsory examination. The appeals court quashed these portions of the order as the Father was not provided adequate prior notice of the motion, which was filed on the same day as the hearing. Psychotherapist-patient privilege may be asserted to preclude compulsory production of certain mental health records. It would be open to the trial court to make a determination on point.

The granting or denying of an order for a psychological evaluation is a discretionary act and may be reversed only upon a conclusion that no judge could reasonably have ordered such an evaluation. Such an order may be upheld if it is based on factual findings supported by record evidence. A trial court may order a new psychiatric or psychological examination instead of than ordering disclosure of existing mental health records as this balances the court’s need to determine the parents’ mental health as it relates to the best interest of the child, and the duty maintain the psychotherapist-patient privilege. In this case, the trial court made factual findings based on the record, which put the Father’s mental condition in controversy and provided good cause to compel his evaluation.

A trial court may consider, but is not bound by, the testimony or recommendations of a social investigator. In this case, the trial court erred in tying the Father’s time-sharing with the minor children “subject to” the investigator’s recommendations.  This was an improper delegation of the court’s authority to the investigator. The appeals court quashed this portion of the order.

Case:              Vaelizadeh v. Hossaini
Court:            Fourth District Court of Appeal.
Trial Judge:   Dale C. Cohen.
Attorneys:     John J. Shahady, John M. Ross, Steven D. Miller.
Issues:            Custody, Relocation.

Holding:         In determining a petition for relocation, the trial court must concern itself as to whether the relocation is in the best interests of the child. An appellate court reviews relocation determinations for abuse of discretion; however, the question of whether the trial court properly applied the relocation statute is a matter of law, reviewed de novo. Child custody issues should be determined upon child’s best interests, and such issues should not be foreclosed on technical pleading defaults. Florida statutes (2014) provide that, unless the parties have entered into agreement, the parent seeking relocation must file and serve a petition to relocate. The pleadings must conform to statutory requirements including that it be signed under oath or affirmation under penalty of perjury and include a specific statement (in prescribed typographic form) set out under statute, providing notice and direction to the parent upon whom the petition is served. Procedurally, if the parent upon whom the petition has been properly served fails to respond in a timely and proper manner, it is presumed that the relocation is in the best interest of the child and that the relocation should be allowed. The trial court shall, absent good cause, enter an order specifying that the order is entered as a result of the failure to respond to the petition. Additional procedural matters are as prescribed by statute.

In this case, the trial court erred in entering the relocation judgment when good cause existed to preclude the Mother’s relocation despite the Father’s untimely response to the Mother’s petition. Good cause included that:

a.             Despite filing a late response, the Father had a pending petition to domesticate and modify an out-of-state order to seek residential custody before the Mother filed her relocation petition. 
b.             He had filed a motion contesting the petition raising allegations requiring hearing.
c.             His untimely response was not due to wilful inaction but his attorney’s unavailability while tending to an ill family member.
d.             An order should not be rendered based on defaults which do not consider the child’s best interests.
e.             The relocation judgment was inconsistent with the trial court’s oral ruling and written order from earlier that day stating that an evidentiary hearing to determine best interests would be set.

The appeals court reversed and remanded for an evidentiary hearing.

Case:              Berg v. Young
Court:            Fourth District Court of Appeal.
Trial Judge:   David E. French.
Attorneys:     Nancy W. Gregoire, Howard S. Friedman, Andrew A. Harris, Curtis L. Witters.
Issues:            Equitable Distribution, Attorney’s Fees.

Holding:       The passive appreciation of a non-marital asset is a marital asset and subject to division where marital funds, or the efforts of either party, contributed to the appreciation. Where a prenuptial agreement does not address the right to enhanced value of a non-marital asset, the value is subject to equitable distribution. If a separate asset is unencumbered and no marital funds are used to finance its acquisition, improvement, or maintenance, then no portion of its value should be included in the marital estate (save for improvements arising from marital labor). A final judgment may be affirmed pursuant to the tipsy coachman doctrine because the trial court reached the right result, but for the wrong reasons. A trial court’s interpretation of a prenuptial agreement is reviewed de novo, as such agreements are governed by the law of contracts. So, too, is its legal conclusion that an asset is marital or non-marital.  The standard of review of a trial court’s determination of equitable distribution is abuse of discretion.

Florida statutes determine the review and award of attorney’s fees in family law matters and seek to ensure that both parties will have a similar ability to obtain competent legal counsel. It can be an abuse of discretion to grant only a partial attorney’s fee award where there is a substantial disparity between the parties’ incomes. However, the trial court cannot award fees based solely on disparity of income. A trial court must make specific findings of fact, either at the hearing or in the written judgment, supporting its determination of entitlement to an award of attorney’s fees and the factors that justify the specific amount awarded. Prenuptial agreement provisions awarding attorney’s fees and costs to the prevailing party in pieces of litigation concerning the validity and enforceability such an agreement are enforceable. A trial court’s ruling on attorneys’ fees in family law actions is reviewed for an abuse of discretion.

In this case, although the trial court erred in its interpretation of the prenuptial agreement (in that it failed to consider the pertinent title presumption), it properly declined to award the Former Wife any interest in the Former Husband’s company. Specifically, the trial court relied on competent, substantial evidence that the Former Husband’s corporation (acquired via a bank account and moneys which, pursuant to the agreement, were non-marital) and appreciation in its value were non-marital and not subject to equitable distribution. The trial court erred as to its award of attorney’s fees as it failed to make findings of fact on point. Further, the prenuptial agreement set out that the party seeking to avoid its terms would bear all the attorney’s fees and costs incurred by the other. As the Former Wife sought, unsuccessfully, to void the agreement the Former Husband was entitled to an award of fees against her. The appeals court reversed and remanded on the issue of fees.

 Case:            Suarez v. Orta
Court:            Third District Court of Appeal.
Trial Judge:   John Schlesinger.
Attorneys:      Leonardo G. Renaud.
Issues:            Child Support.

Holding:         Florida courts emphasize substance over form. Generally, if a motion is improperly titled, a court should focus on its substance. Pleadings by pro se litigants should only be defined by their function. In this case, the trial court erred in declining to consider the Former Husband’s motion notwithstanding that he had intended it as a timely-filed exception to a report, pursuant to Florida Family Law Rules of Procedure (“Rules”). The motion, filed on the same day the report and recommendation was entered, was filed within the ten-day window prescribed by the Rules. The appeals court reversed and remanded with instructions for the trial court to treat his pro se motion as a timely-filed exception pursuant to the Rules.

Case:              Temares v. Temares
Court:            Third District Court of Appeal.
Trial Judge:   Rosa C. Figarola.
Attorneys:     Ronald H. Kauffman.
Issues:            Time-sharing, Certiorari.

Holding:         Under Florida Rules of Civil Procedure, compulsory psychological evaluation or drug testing is authorized only when the party submitting the request has good cause for the examination regarding matters in controversy. The “in controversy” and “good cause” requirements entail an affirmative showing by the movant that each condition as to which the examination is sought is genuinely in controversy and that good cause exists for ordering each particular examination. Conclusory allegations, alone, are insufficient to demonstrate either “in controversy” or “good cause” for submission to examination. A court may order testing, sua sponte, on sufficient record evidence.

In this case, the trial court erred in ordering testing in the absence of any showing by the movant (in any pleading or otherwise at the hearing) that the opposing Party’s mental condition was in controversy.  Nor did the movant establish any good cause. Finally, there was nothing in the record to support a sua sponte order requiring testing.  The appeals court (granted Petitioner’s motion for certiorari and) quashed the trial court order for testing.

Case:              R.T. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge:   Martin Zilber.
Attorneys:      Sanford Rockowitz, Karla Perkins, Laura E. Lawson.
Issues:            Termination.

Holding:         Florida statute governs termination of parental rights based on abandonment. A trial court asked to order termination shall consider relevant statutory requirements with a view to finding that termination is the least restrictive means to protect the child and is in the best interests of the child. In this case, the trial court did not err in ordering termination because it considered requisite provisions and record evidence and found that, although the Father had maintained telephone contact with the child, the record firmly showed that he was unable to care for, support, and parent the child; he had no suitable family members to care for the child; it was in the child’s best interest to be raised with her siblings, with whom she has bonded, and to achieve permanency with a pre-adoptive family that wished to adopt all four siblings. The appeals court affirmed.

Case:              D.C.F. v. N.H.
Court:            Third District Court of Appeal.
Trial Judge: Martin Zilber.
Attorneys:      Karla Perkins, Sharon Wolling.
Issues:            Dependency, Certiorari.

Holding:         Certiorari may be granted where a trial court’s actions exceed its judicial authority by encroaching on the powers of the executive branch by ordering it to take some action not permitted by law. The DCF bears the burden of demonstrating that a trial court departed from the essential requirements of law, thereby causing irreparable injury which cannot be adequately remedied on appeal after final judgment. Florida statutes (2015) authorize the amendment of a case plan by the trial court or by agreement of all parties in certain limited circumstances.

In this case, the trial court erred, and the appeals court quashed a portion of its order relieving the Father from complying with an earlier case plan. Specifically, violence in the presence of the child contradicted the claim that the Father no longer needed services and no competent, substantial evidence supported amending the case plan.

Case:              Dorworth v. Dorworth
Court:            Fifth District Court of Appeal.
Trial Judge:   George B. Turner.
Attorneys:     John N. Bogdanoff, Shannon McLin, Stephen M. Brewer.
Issues:            Alimony, Equitable Distribution.

Holding:         Equitable Distribution
The valuation of an asset or debt in connection with equitable distribution is generally reviewed for an abuse of discretion. Valuation not supported by competent substantial evidence cannot stand. Settlement agreements are governed by the rules of contract interpretation. The trial court's interpretation of a contract in a dissolution proceeding is a matter of law subject to de novo review. When reversible error occurs with regard to valuation or distribution, the entire distribution scheme must be reversed and remanded to allow the trial court to ensure both parties receive equity and justice. In this case, the trial court erred, and abused its discretion, when it utilized the incorrect figure for a certain debt (a judgment resulting from a defunct land deal and which the parties agreed was a marital asset).  In its final judgment, the trial court concluded the value of the asset in the absence of any reasoning. The trial court then equitably distributed the parties’ assets and liabilities and made an associated award of lump sum alimony to the Former Wife. As the trial court erred in calculations on point and as alimony flowed, the appeals court remanded for reconsideration and recalculation.

Durational Alimony

An alimony award should not exceed a Former Spouse's need. An order awarding alimony in excess of the Recipient Spouse's needs will be reversed as an abuse of discretion, absent special circumstances. In this case, the trial court erred when it listed specific items of expense (such as student loan expenses) in the final judgment while it determined Former Wife's monthly needs. The calculations of the Former Wife's expenses and income were unclear.  The appeals court remanded for reconsideration of the amount of durational alimony to be paid based upon the Former Wife's needs and Former Husband's ability to pay.

Lump Sum Alimony

The trial court must also reconsider the entire distribution plan because each division and distribution of a marital asset or liability is interrelated in order to achieve a fair result to both parties. Similarly, the trial court should reconsider alimony awards and other orders in the final judgment that were based on the incorrect debt amount. In this case, the trial court erred in awarding Former Wife a specific amount of lump sum alimony, which was coordinated with her equitable distribution awards. The appeals court remanded for reconsideration of lump sum alimony in all the associated circumstances.

Case:              A.D., Jr. v. D.C.F.
Court:            Fifth District Court of Appeal.
Trial Judge:   Elizabeth A. Morris.
Attorneys:     Richard J. D'Amico, Ward L. Metzger, Thomas Wade Young.
Issues:            Termination, Abandonment.

Holding:         Florida statutes provide that a child is abandoned, or that abandonment occurs, when the parent or legal custodian of a child or the caregiver, while being able, has made no significant contribution to the child's care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both.

In this case, the trial court erred in determining that the Father abandoned the child when there was no clear and convincing evidence to support such a finding. While the Father made little effort to comply with the case plan until the petition for termination of parental rights was filed, following that he partially completed his required steps. DCF conceded he had substantially complied. Further, though the evidence showed he was volatile, this is not sufficient to justify the termination of parental rights. Additionally, while the Father had not provided financial support for the child, DCF had not established his ability to do so. Moreover, he had remained in contact with the child, who resided with the Father’s sister. The appeals court reversed and remanded.

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