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 and Family Law Update for 4 Weeks Ending July 17, 2016

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:             Sherlock v. Sherlock 
Court:            Fourth District Court of Appeal.
Trial Judge:   F. Shields McManus.
Attorneys:      Karen O’Brien Steger, Lori I. Steger, Michael J. Mortell.
Issues:            Alimony.

Holding:         A trial court’s decision on whether to award permanent alimony is reviewed for abuse of discretion.  So is a court’s determination of whether certain assets should be available sources of income. Permanent periodic alimony is intended to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. The primary factors for a court to consider when awarding alimony are the respective spouses’ need and ability to pay. There is a rebuttable presumption that permanent alimony is appropriate after a long-term marriage. The criteria to be used in establishing a spouse’s need for alimony include the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties’ estates. However, the parties’ standard of living during the marriage does not control other considerations. The purpose of permanent alimony is not to divide future income to establish financial equality. A court should not require a spouse in need of alimony to deplete or invade capital assets to maintain his or her standard of living. However, in ruling on a request for alimony, a court must consider all sources of income available to either party, including income available to either party through investments of any asset held by that party. When a spouse with under-earning investments has the ability to generate additional earnings—without risk of loss or depletion of principal—but fails to do so, it is fair for a court to impute a more reasonable rate of return to the under-earning assets, comparable to a prudent use of investment capital. A trial court should not impute income from the home that a spouse occupies after the divorce.

In this case, the trial court did not abuse its discretion in denying the Former Husband’s request for permanent periodic alimony. Although the trial court should not have imputed income to the husband based on his current residence, the trial court did not abuse its discretion in imputing income to him from his real estate and financial holdings, even though those assets included non-liquid assets. The trial court properly imputed a reasonable rate of return to the Former Husband’s real estate and financial assets. While the trial court should not have imputed income based on the equity in his residence, this equity represented only a small portion of his net worth and accounted for a nominal amount of annual income that the trial court imputed to him. The trial court’s imputation of income from the equity in his current residence was a harmless error under the facts of this case. The appeals court affirmed.

Case:             Slaton v. Slaton
Court:            Second District Court of Appeal.
Trial Judge:   Susan St. John.
Attorneys:      Ingrid Anderson, Thomas J. Donnelly.
Issues:            Custody.

Holding:         A trial court may enter an order temporarily modifying child custody, even without notice to the opposing party, if there is evidence of a bona fide emergency situation.  A trial court may not modify primary residential custody based on a parent's behavior without also identifying the steps that the parent must take to restore the original custody arrangement. In this case, the trial court did not err in granting temporary residential custody to the Father as there was evidence of domestic violence between the Mother and her new partner. This evidence was sufficient to support the trial court's finding that an emergency situation existed and its conclusion that modification of the Mother's custody of and visitation with the children was necessary. The trial court erred, however, as its order did not provide a timesharing schedule for the Mother and the children, and it did not delineate the actions required of the Mother if she wished to regain primary residential custody. Nor did it contain any support for the proposition that zero timesharing for the Mother is the appropriate result.  The appeals court affirmed on temporary residential custody and reversed and remand for further proceedings.

Case:             E.M. & B.O. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge:  Stacey Schulman.
Attorneys:      Jeffrey B. Levy, Pamela Jo Bondi, Carolyn Schwarz, Kelley Schaeffer.
Issues:            Termination of Parental Rights.

Holding:         In this case, the trial court did not err in granting the Department’s petition for termination of parental rights, based on only 2 of several grounds in the pleadings. Those grounds were that the Father was incarcerated and would be for a significant portion of the child’s minority; and continuing the parental relationship with the Father would be harmful to the minor child.

However, the judgment contained language indicating that termination was based on all the grounds alleged in the petition. The appeals court remanded for correction of the scrivener’s error.

Case:             Viruet v. Grace
Court:            Fifth District Court of Appeal.
Trial Judge:  Heather Pinder Rodriguez.
Attorneys:     Scott E. Siverson.
Issues:           Termination of Parental Rights.

Holding:         In this case, the trial court did not err in denying the Father’s motions for a new trial and rehearing, despite his assertions that he was not afforded an opportunity to present his evidence. The trial court did err, however, in ordering the Father to pay arrearage in child support when neither the magistrate’s report (which the trial court approved) nor the final judgment, stated the amount in arrears. The appeals court affirmed on denial of the Father’s motions (but without prejudice to permit him to bring a new motion) and remanded for the trial court to determine the arrearage and amend the final judgment to specify the amount.

Case:             Holaway v. Holaway
Court:            Fifth District Court of Appeal.
Trial Judge:  Mark J. Hill.
Attorneys:    John N. Bogdanoff, Shannon McLin Carlyle, Earle W. Peterson, Jr., Barry P. Burnette, Matthew Capstraw.
Issues:           Child Support, Equitable Distribution.

Holding:         Child Support
In determining an award of child support, a trial court errs if it fails to explain the calculations used to arrive at the parties’ imputed incomes. In this case, the trial court erred when it imputed income to Husband without explaining its calculations.

Equitable Distribution

A trial court abuses its discretion when it omits marital liabilities from the equitable distribution. In this case, the trial court erred when it vallued the parties’ property as at the date of filing the petition for dissolution, but then used a different valuation date for the parties’ business interests. Further, the trial court erred when it awarded post-valuation profits from business assets to the Wife after it specifically found that income generated after valuation was passive.

The appeals court reversed as to the calculation of child support, equitable distribution, and award of post-valuation profits. 

Case:             Everett v. Everett
Court:            First District Court of Appeal.
Trial Judge:   Mary Polson.
Attorneys:      Curtis W. Brannon.
Issues:            Contempt.

Holding:         In deciding a motion for a stay of a contempt order, a lower tribunal shall consider the likelihood of prevailing on appeal and irreparable harm to the appellant if the motion is not granted. An appeals court will review a lower tribunal’s decision on a motion to stay under the “highly deferential” abuse of discretion standard. In this case, the trial court did not err when it ruled on the Former Wife’s motion for contempt against the Former Husband for failure to pay child support without first hearing his pending petition for modification while also not making a detailed finding that he could afford the purge. It was open to the trial court to make such a ruling as it had the benefit of all the evidence before it. The appeals court affirmed.

Case:             Freiha v. Freiha
Court:            First District Court of Appeal.
Trial Judge:   Charles W. Arnold, Jr., Steven M. Fahlgren.
Attorneys:     William S. Graessle, Jonathan W. Graessle, Rebecca Bowen Creed, Dale   G. Westling, Sr..

Issues:            Parenting, Child Support, Alimony.

Holding:         In this case, the trial court erred when it ordered final dissolution of marriage in the absence of a parenting plan which included a timesharing schedule and regarding the amount of life insurance coverage which the Former Husband was ordered to maintain as it lacked a sufficient evidentiary basis (the record bore no evidence of the availability or cost of the insurance or his ability to pay that unknown cost). The appeals court reversed on the life insurance requirement and to allow the trial court to order timesharing and recalculate the child support obligation.

Case:             Dunkel v. Dunkel
Court:            Second District Court of Appeal.
Trial Judge:   Catherine M. Catlin.
Attorneys:     Cynthia L. Greene, Allen Dell, Michelle Ralat Brinner, Michael L. Lundy, Mark F. Baseman.
Issues:           Equitable Distribution, Alimony.

Holding:         A temporary alimony award pending the final judgment in the lower court is merged in the judgment and does not continue after the judgment. In this case, the trial court erred when it ordered the continuation of temporary alimony remain in effect until the post-dissolution equitable distribution transfers were effected.  A temporary mediation agreement between the parties on point terminated upon entry of the final judgment. The appeals court reversed the award of temporary alimony and remanded.

Case:             Fischer v. Fischer
Court:            Fourth District Court of Appeal.
Trial Judge:   Jeffrey Dana Gillen.
Attorneys:      John D. Boykin, Matthew S. Nugent, Adam M. Zborowski.
Issues:            Alimony.

Holding:         An involuntary dismissal may not be entered before the plaintiff has completed the presentation of his evidence. In actions involving numerous counts, dismissal of the entire case is proper only if the plaintiff has failed to establish a prima facie case as to each of the counts. In this case, the trial court erred in:

a.     involuntarily dismissing the Former Husband’s entire petition when he had not finished presenting his case-in-chief. The trial court denied the Former Husband his due process.

b.     dismissing the Former Husband's entire multi-count petition based solely on his inability to establish one ground for the relief sought (modification).

The appeals court reversed and remanded.

Case:             Pachter, Jr. v. Pachter
Court:            Fourth District Court of Appeal.
Trial Judge:   Jeffrey Dana Gillen.
Attorneys:      John F. Schutz, Leonel R. Plasencia, Curt Sanchez.
Issues:            Equitable Distribution.

Holding:         In this case, the trial court in:

a.     requiring the Former Husband, by an unequal distribution of marital assets, to make a payment to the Former Wife for income taxes assessed as a result of dissipation of marital assets (fraudulent IRA withdrawals). The Former Husband paid the taxes when the withdrawals were made from the IRA account so the final judgment constitutes a “double” payment for the taxes.

b.     b. requiring him to pay certain expenses of the marital home without credit for one-half of the expenses from the sale proceeds.

The appeals court reversed: (1) the trial court’s double imposition of income tax consequences; and (2) the order requiring the Former Husband to pay all of the expenses of the marital residence pending its sale, without reimbursement for one-half of those expenses from the sale proceeds.

Case:             Smith v. Smith
Court:            Fourth District Court of Appeal.
Trial Judge:   David E. French.
Attorneys:      Jennifer S. Carroll.
Issues:            Right to Marry.

Holding:         The appeals court denied a motion for rehearing and rehearing en banc and granted a motion to certify a question of great public importance being: “Where the fundamental right to marry has not been removed from a ward under section 744.3215(2)(a), Florida Statutes, does the statute require the ward to obtain approval from the court prior to exercising the right to marry, without which approval the marriage is absolutely void, or does such failure render the marriage voidable, as court approval could be conferred after the marriage?” The majority and dissent disagree on the effect of a statute which restricts the fundamental right to marr

Case:             Jaeger v. Jaeger
Court:            Fourth District Court of Appeal.
Trial Judge:   Krista Marx.
Attorneys:      Elizabeth J. Kates, Lisa Marie Macci, John F. Schutz.
Issues:            Equitable Distribution.

Holding:         The determinations of a trial court within a dissolution judgment for abuse of discretion must be supported by competent evidence. In this case, the trial court erred in the award of equitable distribution as its determinations were not supported by competent, substantial evidence. Specifically, per the record, the parties stipulated a value for a marital asset portion of a retirement account that the trial court valued otherwise. The final judgment should have reflected the value agreed upon by the parties. The appeals court reversed for recalculation of the equitable distribution.

Case:             Potchen v. Potchen
Court:            Fifth District Court of Appeal.
Trial Judge:   Jessica J. Recksiedler.
Issues:            Domestic Violence Injunction.

Holding:         An incarcerated party has a right to be heard in civil matters if the party has brought to the court's attention his or her desire to appear personally or telephonically.  In this case, the trial court erred in failing to allow the Appellant to appear by telephone from prison. In so doing, the trial court denied him due process. The appeals court reversed and remanded.

Case:             Bass v. Bass
Court:            First District Court of Appeal.
Trial Judge:   David Rimmer.
Attorneys:     Stephen A. Pitre, Trevor A. Thompson, Laura E. Keene.
Issues:            Custody, Due Process.

Holding:         A court violates due process when it modifies visitation, changes primary residence, or alters child support when the pleadings do not include such issue. In this case, the trial court erred when it granted the Former Husband relief (temporary custody) not set out in the pleadings, and raised only at the start of the hearing. The appeals court reversed.

Case:             McFatter v. McFatter
Court:            First District Court of Appeal.
Trial Judge:   John L. Fishel, II.
Attorneys:      Linda A. Bailey, Jerry L. Rumph, Jr., Hunter J. Hendrix, Rachel R. Seaton.
Issues:            Parenting.

Holding:        A Former Spouse cannot seek to enforce compliance on an issue resolved in a temporary order if the final judgment is silent on such a matter. In this case, the trial court erred in its interpretation on whether a specific parenting provision was incorporated into the Amended Final Judgment. Specifically, the Amended Final Judgment did not incorporate, or attach, that portion of the Temporary Order allowing for the Father to make the decisions concerning the children’s contact with his mother. The appeals court reversed.

Case:             Jackson v. Jackson
Court:            Third District Court of Appeal.
Trial Judge:   Antonio Marin.
Attorneys:      Ilene F. Tuckfield, Hegel Laurent.
Issues:            Procedure.

Holding:         An appeals court has the power to award a new trial where, as here, essential records have been destroyed by an official of the lower court through no fault of the appellant. In this case, the trial court’s decision was appealed by the Former Husband however, the record was unavailable as the court reporter died. A search for the court reporter’s recordings or stenographic equipment, performed by the court reporting firm and appellant’s counsel, was unavailing and the parties attempted, unsuccessfully, to reconstruct the record in accordance with Florida Rules of Appellate Procedure. The appeals court reversed the final judgment and remanded for a new trial.

Case:             A.G. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge:   James L. Martz.
Attorneys:      Antony P. Ryan, Richard G. Bartmon, Deborah Anne Schroth, Sara E. Goldfarb.
Issues:            Dependency.

Holding:         A trial court may not grant a motion restricting the method of examining a child witness without holding an evidentiary hearing and making factual findings supported by the evidence. Factors for an appellate court to consider in reviewing a competency determination include the entire context of the child’s testimony and whether other evidence corroborates the child’s testimony. A prerequisite to the admission of child-victim hearsay is for the court to conduct an evidentiary hearing to ascertain the reliability of the out-of-court statements. In this case, the trial court erred as it granted the Department’s dependency motion based on its assertions, but not on proper evidence, that a minor child would suffer emotional or mental harm if required to testify in open court. Nor did the trial court conduct the proper test as to the competence of a minor child to give evidence. Finally, the trial court improperly admitted child-victim hearsay evidence. The appeals court reversed and vacated a disposition order and case plan and provided directions on remand.

Case:             J.N.S. v. A.M.A.
Court:            Fifth District Court of Appeal.
Trial Judge:   Tonya B. Rainwater.
Issues:            Child Support, Time-Sharing.

Holding:         A trial court’s order establishing a parenting plan is reviewed for an abuse of discretion. Florida Statutes (2012), lists the expenses that parents may deduct from their gross income to determine their net income, including mandatory retirement payments. A child support order must make findings on a parent’s potential earning ability or address whether she or he is voluntarily underemployed. Here, the trial court’s finding on time-sharing could not be properly reviewed because no transcript was provided. The Mother appealed on the grounds that the trial court failed to state, as required by statute, that it had considered evidence of domestic violence, and the best interests of the children. The appeals court noted concern about some trial court findings but was compelled, in the absence of a transcript, to affirm on time-sharing. The trial court had also considered the statutory criteria relating to time-sharing and made findings of fact related to each factor. The trial court erred, however, in its application of the child-support guidelines as it refused to deduct the Mother’s mandatory retirement benefits from her gross income and failed to make findings regarding the Father’s employment status and potential earning ability.  The appeals court affirmed on timesharing and reversed and remanded on child support.

Case:             Martin v. Martin
Court:            Fifth District Court of Appeal.
Trial Judge:   John M. Alexander.
Attorneys:      Aaron M. Makofka, Valarie Linnen.
Issues:            Alimony.

Holding:         A trial court may reduce or terminate an alimony award when a Former Spouse enters into a supportive relationship with an individual and resides with him or her. Florida Statutes (2015), sets out the factors a trial court shall weigh in making the determination as to whether a supportive relationship exists. These include the extent to which the obligee and the other person have held themselves out as a married couple and has supported the other, in whole or in part. In this case, the trial court erred in deciding that a supportive relationship did not exist between the Former Wife and another individual when the evidence indicated both held themselves out as a married couple and received/provided support and financial benefits to one another. The appeals court reversed and remanded.

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