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 March 1, 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:             Isaacs v. Isaacs
Court:            Fourth District Court of Appeal.
Trial Judge:   Arthur M. Birken.

Attorneys:     Pamela Jo Bondi, William H. Branch.
Issues:           Contempt. 

Holding:      Under Florida Family Law Rules, a contempt order must contain findings that a contemnor had the present ability to pay support under a prior court order and wilfully failed to comply. The issued contempt order must present a recital of the facts on which the court made the findings upon which it is based. Where a court orders incarceration as the appropriate sanction, the contempt order must also contain a separate affirmative finding (emphasis added) that the contemnor has the present ability to comply with the purge and the factual basis for that finding. In this case, the trial court erred as its order contained no recitation of facts to support the finding that appellant had the ability to comply with the court’s prior order. The appeals court reversed and remanded.

Case:              Purin v. Purin
Court:            Second District Court of Appeal.
Trial Judge:   Elizabeth V. Krier.
Attorneys:     Matthew E. Thatcher, Cynthia B. Hall.
Issues:           Alimony. 

Holding:        When determining alimony awards, the starting point is one party’s need and the other’s ability to pay. Generally, trial courts may not consider future events in setting current alimony amounts due to the uncertainty and lack of evidence. An obligor's retirement does not mandate termination of an alimony award. Retirement simply allows the trial court, upon proper motion, to revisit the parties' respective applicable circumstances. A trial court may consider a combined alimony award (being a nominal amount of permanent periodic alimony in conjunction with the durational alimony award). This approach may minimize the need for litigation at the time of an payor’s retirement while preserving an payee’s right to support if he or she continued to have need. Florida statute allows for the extension of durational alimony if a party can demonstrate exceptional circumstances showing the need for continued alimony.

In this case, the trial court erred in awarding durational, rather than permanent, alimony for a long-term marriage by speculating on the parties' needs and ability to pay when the Former Husband retired. A current alimony issue could not be properly resolved by addressing future contingencies. The trial court also misinterpreted statute in denying the Former Wife her statutory right to seek an extension of a durational alimony award. The appeals court reversed in part and remanded for further proceedings. 

Case:             Westwood v. Westwood
Court:            Fifth District Court of Appeal.
Trial Judge:  Robert M. Evans.
Attorneys:    Matthew R. McLain, Nicholas A. Shannin.
Issues:           Modification, Process. 
Holding:      It is not improper for a trial court to deny a hearing on an unserved petition for modification. To succeed on modification a party must plead and prove a substantial, material, and unanticipated change of circumstances, and establish that modification is in the children’s best interest. In this case, the trial court did not err in denying the hearing on the Former Wife’s petition insofar as it was correct in viewing the pleading as an untimely motion for rehearing or reconsideration (rather than a supplemental petition). While the petition attempted to cover all bases, the Former Wife neither obtained a summons nor served the petition on the Former Husband. The appeals court’s decision was without prejudice to the Former Wife to re-file a properly served petition for modification. 

Case:              C.D. v. D.C.F.
Court:            First District Court of Appeal.
Trial Judge:   David M. Gooding.
Attorneys:   Jeffrey E. Lewis, Robert Keep, Jr., Crystal McBee Frusciante, Kelley Schaeffer, Ward L. Metzger.
Issues:           Termination of Parental Rights. 

Holding:       It is improper for a trial court to order termination of parental rights as the least restrictive means available to protect a child, or children, from serious harm when its findings of fact regarding a parent-child relationship are incongruous with that ruling. Specifically, if a trial court finds on the evidence that there is a bond or relationship between the parent and the child or children, it is incongruous to order termination as the least restrictive means of protection. Before parental rights in a child can be permanently and involuntarily severed, the state must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child or children. The standard of review in termination of parental rights cases is highly deferential. In this case, while the trial court did not err to the extent it found that termination was warranted under Florida statute and because it was in the children’s manifest best interests, it did err to the extent that it found termination of the Mother’s parental rights was the least restrictive means available to protect the children from serious harm. The appeals court reversed termination on the least restrictive means basis and remanded for further proceedings consistent with this opinion.


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.