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 Week Ending January 25, 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:              Burkett v. Burkett
Court:             First District Court of Appeal.
Trial Judge:   Thomas R. Santurri.
Attorneys:      Sharon K. Wilson, Autumn O. Beck.
Issues:            Attorney’s Fees.

Holding:          Awards of attorney’s fees to a former spouse for proceedings to modify a final judgment of dissolution of marriage, and any associated income deduction order effectuating the fee order, must be based on sufficient evidence. A party seeking to alert the court to the deficiencies in the findings must file a motion to do so, and transcripts, if available, failing which, an appeals court may be constrained from review of the issue.   In this case, the trial court erred when it failed to include sufficient findings to support the fee award and associated income deduction order effectuating the fee order. However, the appeals court was constrained to affirm as to this issue because the Former Husband did not file a motion for rehearing alerting the trial court to the deficiencies in the findings and no transcript was available.

Case:                Lascaibar v. Lascaibar
Court:               Third District Court of Appeal.
Trial Judge:     Bertila Soto.
Attorneys:       Robert I. Spiegelman, Steven Grossbard.
Issues:              Child Support. 
Holding:     A party may contest a general magistrate’s recommendation by filing an exception to the recommendation within ten (10) days from the date the recommendation is served. If a party fails to file an exception, he or she cannot later claim entitlement to the interest accrued prior to the date of the recommendations/order at issue. While a general magistrate’s findings of fact are presumed correct, a trial court is duty bound to examine and consider the evidence for itself and to make a judicial determination as to whether under the law and the facts the court is justified in entering the judgment recommended by the master. Furthermore, a trial court should carefully determine whether the general master's findings and determinations were supported by competent, substantial evidence or whether there was any other departure from the essential requirements of applicable law. A trial court is not bound to accept findings which are clearly erroneous. In this case the trial court erred when it abused its discretion and denied the Mother’s exceptions to the general magistrate’s recommendations at issue. The appeals court reversed the trial court’s orders denying exceptions and remanded, directing that the Mother be permitted to present evidence as to the amount of interest that accrued from the date the Father submitted the final lump-sum payment to the registry.

Case:               D.C.F. & A.H. v. T.S. & R.H.
Court:              Fourth District Court of Appeal.
Trial Judge:     Roger B. Colton.
Attorneys:       Rosemarie Farrell, Alexandra St. Pierre.
Issues:             Dependency. 
Holding:          All procedures in a dependency case must comport with due process principles. Procedural due process requires fair notice and a real opportunity to be heard. An arraignment provides the opportunity for the parent or legal custodian to admit, deny, or consent to findings of dependency alleged in the petition. When due process is denied, fundamental error occurs. Notice and an opportunity to be heard are the hallmarks of due process. A trial court commits an abuse of discretion when it denies a party the opportunity to be heard. Further, the best interests of the child ground all dependency proceedings. When the court obtains jurisdiction of any child who has been found to be dependent, it shall retain jurisdiction, unless relinquished by its order, until the child reaches twenty-one (21) years of age, subject to a few exceptions.  A trial court errs when it fails to consider the best interests of a minor child in the dependency proceeding before it. If a trial court adjudicates a child dependent, the court is not divested of jurisdiction over the child upon his or her turning eighteen (18), and could provide needed services. Thus, if a trial court fails to make a best interests determination, its dismissal can be adverse to a child’s best interests.

In this case, the trial court committed fundamental error and violated the rights of the minor child to due process insofar as it dismissed the petition without notice and without an opportunity to be heard. Here, the arraignment was reset three times previously but no notice was presented to the child or the DCF that the case might be dismissed. Neither the child nor DCF was allowed to present evidence or recommend what disposition was in the best interests of the child. Furthermore, the trial court neglected to consider the best interests of the child, which are paramount. The appeals court reversed and remanded. 

Case:               Cameron v. Cameron
Court:              First District Court of Appeal.
Trial Judge:     T. Michael Jones.
Attorneys:       J. Rod Cameron, Ross A. Keene.
Issues:             Alimony.

Holding:       In a dissolution of marriage proceeding, each party’s sources of income and ability to pay are factors to be considered in determining whether alimony, child support, or attorney’s fees are appropriate, and if so, in what amounts. Where a parent is underemployed, the court is required to impute income to that parent unless the lack of employment is the result of the parent’s physical or mental incapacity or other circumstances beyond the parent’s control. The decision of whether to impute income must be supported by competent, substantial evidence. In this case, the trial court erred in delaying ruling imputed income to the Former Wife for six months in the absence of any competent, substantial evidence to support the decision. The record contained no evidence of involuntary underemployment by the Former Wife for the relevant time period. To the extent that her underemployment was due to her status as a pro se litigant in her own divorce proceeding, there is no evidence that this decision was anything other than a voluntary one on her part, and one that was not due to physical or mental incapacity or other circumstances beyond her control. The appeals court reversed on this point. 

Case:              McDuffie v. McDuffie
Court:             First District Court of Appeal.
Trial Judge:    Mark J. Borello.
Attorneys:      Lester Makofka, Cindy L. Lasky.
Issues:            Alimony.
Holding:        To impute income for the purposes of child support and alimony, a trial court must first find the parent is voluntarily underemployed or unemployed, not due to a physical or mental incapacity or other circumstance beyond the parent’s control. If the court makes this finding, it must impute income. To support the amount, the parent’s employment potential and probable earnings level must be based on particularized findings relating to factors such as the current job market, recent work history, occupational qualifications, and the prevailing earnings level in the local community. A trial court must make specific findings of fact or, in the absence of findings, look for record support of the factors and affirm on that basis. A finding of voluntary unemployment is only part of imputing income. The party seeking to impute income must support the income figure for which it advocates. 

In this case, the trial court erred in making a finding as to imputed income on the part of the Former Wife in the absence of sufficient evidence to support the amount of imputed income. Despite the Former Wife explaining there was no job outside the home she could perform, the trial court—as trier of fact and judge of credibility—found the former wife and doctor’s testimony not credible and made an order as to imputation. However, the record was devoid of evidence support for this imputed amount. There was no evidence of the local job market, the area minimum wage, or the type of job the Former Wife could secure that would pay the required amount per hour. The record presented facts which were not competent, substantial evidence of the current job market, work history, occupational qualifications, and the prevailing earnings level in the local community. The appeals court reversed the imputation and remanded for the circuit court to take further evidence on the amount of income to impute. Also on remand, because the improperly imputed income played into the alimony and equitable distribution amount determinations, the court was directed to consider revising those amounts if appropriate. Finally, while the court did not abuse its discretion in distributing the parties’ credit card and loan debt equally, the court did not delineate how each party would be responsible. On remand, the circuit court was instructed to revise the final judgment to allocate each account so as to accomplish equal distribution, or devise some other delineated system for allocating responsibility for the debt and the method of payment. 

Case:               Panopoulos v. Panopoulos
Court:             Second District Court of Appeal.
Trial Judge:    Daniel D. Diskey.
Attorneys:      John A. Shahan, Johnny D. Drizis.
Issues:            Alimony, Procedure.

Holding:        Under the Florida Rules regarding appeals procedures, a notice of appeal must be filed within 30 days of rendition of the order to be reviewed. The timing of the filing of the notice of appeal is a jurisdictional matter. Where a judgment is amended to correct only a scrivener's error, the time for appeal is counted from the date of the initial order. When a party wishes to challenge a judgment by motion or appeal the time to challenge the judgment runs from the original judgment unless an amendment changes or clarifies a matter of substance. The court may review any ruling or matter occurring before filing of the notice.

In this case, in a highly unusual procedure, the circuit court trifurcated the parties’ dissolution proceedings. Part of the proceedings involved the Former Wife’s petition for alimony, which the court denied overall but in its "partial final judgment," it awarded alimony to be paid starting on a particular date. There was a scrivener's error and the parties contacted the judge's judicial assistant, rather than filing a motion for rehearing, recognizing the date in the order set out the incorrect year. The court issued an amended order correcting the error. The Former Husband filed his notice to appeal that order on the amended order, which did not effect a substantive change. Accordingly, the Former Husband's notice of appeal was not timely and the appeals court dismissed the appeal for lack of jurisdiction. However, the appeals court noted that, fortunately for Former Husband, due to the unusual trifurcation proceedings, the issues raised in this appeal may be within the scope of review of an appeal from a final order of dissolution.

Case:             B.W.P. v. A.L.H.
Court:            Second District Court of Appeal.
Trial Judge:   James R. Thompson, R. Thomas Corbin.
Attorneys:     Luis E. Insignares, Theresa Daniels.
Issues:           Paternity, Attorney’s Fees.

Holding:       Attorney's fees should not be awarded pursuant to Florida statute when the losing party attempted in good faith to advance a novel question of law. Further, Florida statute precludes a sperm donor from asserting parental rights, whether or not a valid written contract between the parties limits his ability to do so. In this case, the trial court did not err in dismissing the petitioner Donor’s amended petition with prejudice, because even if he, as the Donor, is correct that there was no valid written contract between the parties limiting his ability to assert parental rights, Florida statute precludes him from asserting such rights.  However, the trial court erred in awarding attorney's fees to the respondent Mother. The trial court based the award on its finding that the petitioner Donor knew or should have known that his petition and amended petition were insufficient on the facts and the law. Under Florida statute, notwithstanding whether an action is not supported by the facts or the application of then-existing law, fees may not be awarded if the claim was presented to advance the law. The appeals court affirmed the order dismissing the amended petition to determine paternity with prejudice, but reversed the order granting respondent Mother an award of attorney's fees.

Case:               Perez v. Fay
Court:             Second District Court of Appeal.
Trial Judge:    Elisabeth Adams.
Attorneys:      Robert L. Donald, Robert J. Coleman.
Issues:            Custody, Procedure.

Holding:       Claims for relief consisting of modification of residence of a minor child, time-sharing, or other parenting matters must be supported by substantial and sufficient evidence showing a change of circumstances not anticipated at the time of the order to be modified. A parent has a constitutionally protected inherent right to a meaningful relationship with his or her children. Time-sharing privileges should not be denied to either parent as long as his or her conduct, while in the presence of the children, will not adversely affect the children. Given of the constitutional right to a meaningful parent-child relationship, there must be competent, substantial evidence in the record that demonstrates that any restrictions or limitations on time-sharing are in the best interests of the child. It is the trial court's responsibility to ensure that an appropriate relationship is maintained between a parent and his or her children. When the court exercises its discretion to reduce or eliminate time-sharing with a parent's children, the court must give the parent the key to reconnecting with his or her children. An order that does not set forth the specific steps a parent must take to re-establish time-sharing, thus depriving the parent of that key, is deficient because it prevents the parent from knowing what is expected and prevents any successor judge from monitoring the parent's progress. The trial court cannot delegate its authority to rule on the visitation details to a person such as a supervisor of a parent’s time-sharing. Such a delegation of authority constitutes an abuse of discretion that must be reversed. A parent's visitation rights may not be conditioned on the payment of the parent's financial obligations. The expenses of visitation are part of the parties' child rearing expenses that must be addressed as part of the parties' child support obligations.

In modification proceedings, as in other civil matters, courts are not authorized to award relief not requested in the pleadings. To grant unrequested relief is an abuse of discretion and reversible error. Additionally, a court should not grant such relief absent proper notice to the parties. Moreover, a court errs in granting relief on issues not tried with the consent of the parties.  

In this case, the trial court erred in several ways. The trial court ruled on matters not requested in the pleadings. The trial court sua sponte awarded the Father sole parental responsibility and sole decision-making authority despite the fact that the Father did not raise the issues in his pleadings, and the issues were not tried by consent. Even if the Father had requested such relief in his pleadings, no evidentiary basis existed to support it. The trial court abused its discretion in making any change to this portion of the original final judgment. The appeals court reversed and remanded for the trial court to reinstate shared parental responsibility and shared parental decision-making responsibility as to all issues. The same analysis applied to other aspects of the trial court’s order including rulings requiring the Mother speak only English to the minor child, reduced time-sharing to the Mother and the costs of time-sharing. Finally, the trial court’s ruling was legally deficient as it failed to set forth what was required of the Mother to regain primary residential custody and/or meaningful unsupervised time-sharing with her daughter. The appeals court reversed and remanded for reconsideration.

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