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 the Week Ending January 18, 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:               D.C.F. & Guardian ad litem v. T.S. & A.B.
Court:              First District Court of Appeal.
Trial Judge:    David M. Gooding.
Attorneys:      Ward L. Metzger, Kelley Schaeffer, Crystal McBee Frusciante.
Issues:            Termination.
Holding:     In ordering termination, a trial court must find, on sufficient and cogent evidence, that the requirements under Florida statute are met and that termination of parental rights is in the manifest best interest of the child or children. Further, it is not appropriate to create an unsolicited permanent guardianship for the sole purpose of avoiding a least restrictive means outcome. Nor is it proper to rely on the availability of a non-adoptive placement with a relative in assessing the least restrictive means of addressing a situation.

In this case, the trial court erred in finding that the Department of Children and Families had both established the statutory factors for termination and that termination was in the best interests of the child.  Specifically, the trial court improperly relied on the availability of a non-adoptive placement with a relative when it assessed the least restrictive means of addressing the matter, which is expressly prohibited by statute. The appeals court remanded for the trial court to determine whether termination was appropriate, using the correct legal factors, and directed to re-evaluate the availability of least restrictive means without considering the non-adoptive placement with a relative.

Case:              Feuer v. D.C.F.
Court:             Third District Court of Appeal.
Trial Judge:    Not stated in opinion.
Attorneys:      Leslie Hinds St-Surin.
Issues:            Procedure. 

Holding:       A party is presumed to have received sufficient notice of a proceeding if it was mailed to him or her in conformity with the systematic business practice of the Office of Appeal Hearings. However, this is a rebuttable presumption, and a party is entitled to an evidentiary hearing on the issue of whether he or she received notice of procedural matters, including the issuance of an order. In this case, the issue is required to be considered by the trial court. The appeals court reversed the trial court’s decision and remanded for further proceedings. 

Case:               D.C.F. v. J.B.
Court:             Third District Court of Appeal.
Trial Judge:   Maria I. Sampedro-Iglesia.
Attorneys:      Javier Ley-Soto, Leslie Hinds St-Surin, Angela Vigil.
Issues:            Costs. 

Holding:        Unless a statute or a constitution authorizes the court to do so, it is a violation of Florida’s doctrine of separation of powers for a court to direct an executive department on how to expend funds appropriated to the department. A court may order an executive department to spend funds when a statute or constitution authorizes a court to do so. However, courts have rejected the idea that there is a doctrine of inherent judicial power that allows a court to direct how an executive department exercises its discretion to spend funds appropriated to the department. Rather, the  courts have repeatedly held that the judicial branch may neither interfere with the legislative branch by requiring funds to be spent by an executive agency in a manner not authorized by statute, nor interfere with an executive agency’s discretion in the spending of appropriated funds.

In this case, the trial court erred because no statute authorized the trial court to order the Department to pay for the travel of the pro bono Attorney Ad Litem for the purpose of facilitating the minor child’s therapy. The order violated the doctrine of separation of powers. Florida’s Constitution provides for the separation of powers between the three branches of state government. Under this doctrine, the judicial branch must not interfere with the discretionary functions of the legislative or executive branches of government absent a violation of constitutional or statutory rights.  The appeals court quashed the order.

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.