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: Cilenti v. Cilenti
Court: Second District Court of Appeal.
Trial Judge: John A. Schaefer.
Attorneys: Andrew J. Rodnite, Jr., Nikie Popovich.
Issues: Child Support, Equitable Distribution.
Holding: Child Support
By Florida statute, child support orders shall provide for health insurance for a minor child when such insurance is reasonable in cost and accessible to the child. By presumption, health insurance is reasonable in cost if it is no more than 5% of the gross income of the parent providing coverage. An order may exceed 5% on written reasons of the court. In this case, the trial court erred when it made no findings in the final judgment explaining its deviation from the presumption.
Equitable Distribution
Nonmarital liabilities include liabilities incurred by either party prior to the marriage. In this case, the trial court erred determining that the Former Wife’s credit card account was a marital debt when, in fact, the account was closed before the parties even married.
Case: Storey v. Storey
Court: Fourth District Court of Appeal.
Trial Judge: Charles E. Burton.
Attorneys: Nancy A. Hass, Sue-Ellen Kenny, Scott D. Glassman.
Issues: Equitable Distribution.
Holding: The provisions of a marital settlement agreement (MSA) reached by the parties, and the controlling law, must be followed. In this case, the trial court erred in awarding the Former Wife a greater monthly benefit from the pension of the Former Husband than she was entitled to under unambiguous terms of the parties’ MSA and the controlling law.
Case: Carlson v. Carlson
Court: Fourth District Court of Appeal.
Trial Judge: David E. French.
Attorneys: Christopher R. Bruce, John E. Schwencke, Gary D. Weiner, Scott M. Weiss.
Issues: Child Support, Attorney’s Fees.
Holding: Child Support
Imputing Income - Income may be imputed based on gifts to a party on sufficient evidence that the gifts have been regular, ongoing and will continue in the future. In this case, the trial court erred in relying on a magistrate’s inclusion of gifts as income to the Former Wife without sufficient evidence that they were regular or continuing.
Child Care - A trial court must rule on a party’s request for relief where the request arises in the pleadings and subsequent proceedings. Child care costs related to employment, finding work, or obtaining education to improve opportunities to work, shall be added to the basic obligation. In this case, the trial court erred in relying on the magistrate’s findings when they were silent on the Former Wife’s requests (made in the pleadings and subsequently) regarding daycare expenses. The appeals court reversed and remanded on this issues.
Attorney’s Fees
Recalculation of income requires reconsideration regarding attorney’s fees. The appeals court reversed and remanded for the trial court recalculate her income, child support, child care expenses and attorney’s fees.
Case: Lowery v. Carney
Court: First District Court of Appeal.
Trial Judge: Terrance R. Ketchel.
Attorneys: Clark H. Henderson, Anna F. Foster.
Issues: Due Process, Custody.
Holding: The decision of a trial court is presumed and an appellant bears the onus to demonstrate error. In this case, the Mother’s due process rights were not violated when her hearing notice went a wrong address because she could not meet the burden of showing error. No transcript of the hearing was available to show she what address she had provided the court and and the evidence she provided on point could not discharge the onus on her.
Case: Serra v. Brown
Court: Second District Court of Appeal.
Trial Judge: William H. Burgess, III.
Attorneys: John A. Shahan, Knute J. Nathe.
Issues: Attorney’s Fees.
Holding: An award of attorney’s fees must be based on findings required by statute. In this case, the trial court erred in awarding attorney’s fees in the absence of statutory findings in support. The appeals court reversed and remanded.
Case: Benevides v. Reese
Court: Fifth District Court of Appeal.
Trial Judge: George Paulk.
Attorneys:
Issues: Procedure, Custody.
Holding: An appellant must to ensure the appeal record is prepared and transmitted to the appeals court. A copy of the order under review be attached to the notice of appeal. In this case, the Appellant failed to supply the record on appeal, a copy of the final judgment on appeal, or any transcript of the trial for review, which precluded a meaningful review. The appeals court denied.
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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.