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: Horowitz v. Horowitz
Court: Second District Court of Appeal.
Trial Judge: Jalal Harb.
Attorneys: Rafael J. Echemendia.
Issues: Injunction for Protection Against Domestic Violence.
Holding: Cyberstalking is a form of domestic violence against which a person may
obtain an injunction. The petition for injunction must be supported by competent, substantial evidence. Florida law defines cyberstalking as engaging in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person,
causing substantial emotional distress to that person and serving no legitimate purpose.
Unlike email communication, posts to one's own Facebook page are not directed at a specific person but are instead posted for all of the user's Facebook "friends" to see, depending on a user's privacy settings. “Hacking” into a Facebook account is not cyberstalking at it is not an electronic communication. A Petitioner must also show sufficient emotional distress related to the conduct complained of.
In this case, the trial court erred in granting the petitioner an injunction against the Respondent for cyberstalking because there was insufficient evidence regarding the specific elements of the offence.
The Respondent’s Facebook posts were not "directed at a specific person". The evidence showed he had posted the questionable comments to his own Facebook page and the Petitioner was neither tagged nor identified. The pertinent allegations of the Respondent’s “hacking” into Petitioner’s account were insufficient insofar as hacking is not cyberstalking. Finally, although she testified that the posts were a concern, the Petitioner failed to establish she suffered substantial emotional distress as a result. The appeals court reversed.
Case: A.S. v. D.C.F.
Court: Fourth District Court of Appeal.
Trial Judge: Kathleen J. Kroll.
Attorneys: Frank A. Kreidler, Rosemarie Farrell, Jorge Anton, Patricia M. Propheter.
Issues: Termination of Parental Rights.
Holding: Florida statutes establish that: a) the termination of parental rights because of abandonment must be based on clear and convincing evidence; b) a prospective parent cannot be determined to have abandoned his child until paternity is established; c) the DCF must make good faith efforts to reunification; and e) establish that termination is the least restrictive means of protecting a child from harm. Specifically, DCF must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child. The trial court must make a specific inquiry when the identity or location of a parent is unknown and a petition for termination of parental rights has been filed. The trial court must direct the DCF to conduct a diligent search for the prospective parent if the prospective parent’s location is unknown. When such a search fails to locate a prospective parent, then DCF can proceed with a petition for termination of parental rights.
In this case, the trial court erred in ordering termination against the Father in the absence of clear and compelling evidence. The trial court erred further as it determined he abandoned the child based on inquiries of conduct prior to paternity being established. Finally the trial court erred in ordering termination when there was no evidence that reunification was not possible and that termination was the least restrictive means available to protect the child from harm.
Case: Ledoux-Nottingham v. Downs
Court: Fifth District Court of Appeal.
Trial Judge: Bob LeBlanc.
Attorneys: Jamie Billotte Moses, Leigh Anne Miller, Andrew T. Windle.
Issues: Grandparent Visitation, Attorney’s Fees.
A Florida court shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this part or the determination was made under factual circumstances meeting the jurisdictional standards of Florida laws. In this case, trial court did not err when it enforced the Colorado order determining visitation for the Grandparents after the Mother moved from Colorado to Florida. Since the Colorado order was a final judgment and emanated from a “child custody proceeding” within the meaning of Florida Statutes (2013), it became enforceable in Florida pursuant to the Full Faith and Credit Clause. Accordingly, the trial courts was required, without discretion, to give recognition to final judgments of another state.
A party seeking modification of a time-sharing schedule has the burden of proving (1) a substantial and material change in circumstances, and (2) that the best interests of the child will be promoted by such modification. The substantial and material change in circumstances must have occurred subsequent to the last order addressing time-sharing. In this case, the trial court properly determined that there had not been a substantial and material change in circumstances during the 13 days between the entry of the Colorado order and the filing of Mother’s petition.
In such circumstances, a trial court is not necessarily precluded from ordering make-up visitation. On remand, the trial court was directed to promptly address the Grandparents’ motion for make-up visitation.
Florida States (2013) provides that if a court has personal jurisdiction over the party against whom attorney’s fees are being assessed, the court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including attorney’s fees unless the party from whom fees are sought establishes that the award is clearly inappropriate. In this case, the trial court erred in summarily denying the Grandparents’ request for attorney’s fees, because it did not consider whether assessing attorney’s fees against Mother would be “clearly inappropriate.” On remand, the trial court was directed to make specific findings as to the entitlement to attorney’s fees.
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.