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 4 Weeks Ending October 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:              Lalonde v. Lalonde
Court:            Fourth District Court of Appeal.
Trial Judge:   Arthur M. Birken.
Issues:            Procedure.

Holding:      Under Florida Rules of Procedure, the requiring thirty days’ notice is mandatory and applicable to final hearings as well as to jury trials. In this case, the trial court erred in proceeding with the hearing and rendering final judgment when the Former Husband did not have at least thirty days’ advance notice.  The appeals court remanded with instructions to the circuit court to set a new final hearing, giving the parties at least 30 days’ notice.

Case:              Miggins v. Miggins
Court:            Fourth District Court of Appeal.
Trial Judge:   Krista Marx.
Attorneys:     Doreen Truner Inkeles, Adam M. Zborowski.
Issues:            Equitable Distribution.

Holding:     A party seeking equitable distribution of a military Survivor Benefit Plan shall provide evidence concerning assertions as to the Plan including the cost of maintaining it and how equitable distribution or alimony would be affected. In this case, the trial court was incorrect when it found that the Former Husband’s military Survivor Benefit Plan was not marital property subject to equitable distribution. However, it was correct in its treatment of the Plan. Specifically, the Former Wife presented no evidence concerning the cost of maintaining the Plan and how equitable distribution or alimony would be affected. The appeals court reversed on the issue and remanded for the entering of a second amended final judgment containing language referring to the “existence of a supportive relationship” pursuant to Florida Statutes (2014).

Case:              Hofschneider v. Hofschneider
Court:            Second District Court of Appeal.
Trial Judge:   Richard A. Nielsen.
Attorneys:     Jeremy T. Simons.
Issues:            Contempt.

Holding:      Pre-judgment civil contempt orders are properly reviewed by certiorari. In this case, as the issue involved review of a contempt order by the trial court, the appeals court converted the matter to a petition for writ of certiorari. It was, however, declined as the Appellant / Applicant did not demonstrate suffering a material injury that could not be corrected on post-judgment appeal.

Case:              B.R. v. D.C.F.
Court:            Second District Court of Appeal.
Trial Judge:   Sonny Scaff.
Attorneys:     Donald K. Rudser, Ward L. Metzger, Dave Krupski.
Issues:            Dependency.

Holding:      An amendment or modification of an order or judgment in an immaterial, insubstantial way does not re-start the clock to file an appeal. Even substantial or material modifications in an amended judgment do not provide grounds sufficient to appeal issues adversely decided in the earlier judgment. In this case, the appeal was filed in excess of the thirty-days from the date the orders were rendered, one of which contained immaterial changes. The immaterial changes did not re-start the time for proper filing of an appeal.

Case:              J.B.-L v. D.C.F.
Court:            Second District Court of Appeal.
Trial Judge:   Suzanne Bass.
Attorneys:     Robert W. Keep, Jr., Joshua Goldsborough, Niki Guy, Ward L. Metzger, Wendie Michelle Cooper.
Issues:            Dependency.

Holding:      A trial court order finding a child dependent but withholding an adjudication of dependency is properly reviewable by the appeals court pursuant to the Florida Rules of Appellate Procedure.  In this case, the trial court did not err in adjudicating only two of seven minor children, dependent but finding all seven of them dependent. The fact that adjudication hearings were conducted on only two matters was not an error. The appeals court affirmed. 

Case:              Shah v. Shah
Court:            Third District Court of Appeal.
Trial Judge:     Mindy S. Glazer.
Attorneys:     Bryant Miller Olive, Elizabeth W. Neiberger, Clayton D. Simmons, Andrew Rier, Daniel Tibbitt.
Issues:            Process.

Holding:      Due process requires proper notice and an opportunity to be heard. In this case, the trial court erred when it noticed the hearing on the petition for dissolution of marriage as a status conference but, instead, conducted a final hearing and entered final judgment. The appeals court reversed.

Case:              De Leon v. Collazo
Court:            Third District Court of Appeal.
Trial Judge:   Leon M Firtel.
Attorneys:      David W. Macey, Lindsey M. Alter, Jessica B. Reilly.
Issues:            Permanent Injunction for Protection, Process.

Holding:      Due process serves as a vehicle to ensure fair treatment through the proper administration of justice. It requires that litigants be given proper notice and a full and fair opportunity to be heard. To be sufficient, notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must convey the required information, afford a reasonable time for those interested to make their appearance, and indicate the witnesses and the evidence expected.

In this case, the trial court erred when, at the final hearing, it permitted the Applicant, over objection, to testify to substantial and significant acts of domestic violence that were never pleaded in the petition. Nor was the Respondent put on notice that these additional acts would form a part of the allegations relied upon. This violated the Respondent’s due process rights. The appeals court vacated the permanent injunction and remanded for a new final hearing.


Case:              Gromet v. Jensen
Court:            Third District Court of Appeal.
Trial Judge:   Pedro P. Echarte.
Attorneys:     George R. Baise Jr., Brian C. Tackenberg, Robin Buckner, Robert F. Kohlman.
Issues:            Equitable Distribution.

Holding:      A trial court’s determination that an asset is marital or non-marital involves mixed questions of law and fact. Although an appeals court defers to the trial court’s factual findings if they are supported by competent, substantial evidence, it will review the trial court’s legal conclusions de novo.  

Non-marital assets include assets acquired separately by either party by non-interspousal gift, bequest, devise, or descent, and asset acquired in exchange for such assets. Non-marital assets may lose their non-marital character and become marital assets where they have been commingled with marital assets. This is especially true with respect to money because money is fungible, and once commingled it loses its separate character.

Florida Statutes (2014), provide that marital assets include the enhancement in value and appreciation of non-marital assets resulting from the efforts of either party during the marriage. Where a former spouse seeks to establish that marital efforts were utilized to enhance the value of the other party’s non-marital business, he or she also has the burden of proving that assertion and the value, based on competent, substantial evidence.

In this case, the trial court erred by treating the Former Husband’s accounts as marital assets subject to equitable distribution, when the accounts were entirely funded with an inheritance he received; the Former Wife failed to present competent, substantial evidence that marital funds were deposited into or commingled with any of the Former Husband’s accounts; and the evidence showed that, despite actively managing his accounts, they decreased in value.  The appeals court reversed the equitable distribution portion of the final judgment.

Case:              Russell v. Pasik
Court:            Second District Court of Appeal.
Trial Judge:   Marc B. Gilner.
Attorneys:    Paul F. Grondahl, Cristina Alonso, Jessica Zagier Wallace, Michael P. Sampson, Ashley Filimon, Elliot H. Scherker, Brigid F. Cech Samole, Jay A. Yagoda, Luis E. Insignares, Elizabeth Lynn Littrell, Paolo Annino, Brion Blackwelder, Michael J. Dale, Nancy Dowd, Shani M. King, Barbara Bennett Woodhouse.
Issues:            Time-sharing.

Holding:      To be entitled to certiorari relief, a party must demonstrate: (1) a departure from the essential requirements of the law; (2) resulting in material injury for the remainder of the case; (3) that cannot be corrected on post-judgment appeal. The second and third elements are jurisdictional and thus must be evaluated first. Typically, certiorari will not be granted from a denial of a motion to dismiss because there is not a material injury that cannot be corrected on post-judgment appeal.

A psychological parent is not recognized in law. Only natural and adoptive parents have a legal duty to support minor children. When there is no biological connection between a petitioner and a child and that nonparent is seeking to establish legal rights to the child, there is no clear constitutional interest in being a parent.

In this case, the trial court erred as it failed to conduct the proper analysis to determine standing. Further in order to prevent irreparable harm, the trial court must fully assess that issue. In denying the motion to dismiss, the trial court merely opined that a cause of action arose based on the facts set out in the petition. However, the petition showed that it was legally impossible for the Respondent to establish standing to petition the trial court for timesharing as she asserted she was a de facto or psychological parent and not a biological parent. As a cause of action does not exist in the absence of standing, the trial court departed from the essential requirements of the law by not dismissing the petition for timesharing. Additionally, the trial court improperly addressed the Applicant / Biological Parent’s constitutional privacy interest in the raising of her children, including determining with whom they are allowed to spend time. This would enable the State's interference with a constitutional right—here, the right to privacy, and an injury that cannot be corrected on post-judgment appeal. The appeals court granted the petition for certiorari.

Case:              Rosenblum v. Rosenblum
Court:            First District Court of Appeal.
Trial Judge:   W. Gregg McCaulie.
Attorneys:     Geraldine C. Hartin.
Issues:            Child Support.

Holding:      A party is entitled to have his or her motion to modify child support or alimony heard and resolved before, or simultaneously with, a hearing on another party’s later-filed motion for contempt. In this case, the trial court erred in proceeding only on a motion for contempt filed by the Former Wife, when the Former Husband had filed a prior motion for modification of child support, despite his repeatedly objecting to proceeding without first or simultaneously resolving the issues raised in his earlier-filed motion. The appeals court reversed and remanded for further proceedings on the Former Husband’s motion to modify child support.

Case:              Taylor v. Taylor
Court:            Second District Court of Appeal.
Trial Judge:   Jalal A. Harb.
Attorneys:     Jean M. Henne, Karie L. Sanoba.
Issues:            Alimony.

Holding:      Generally, trial courts may not consider future or anticipated events in making alimony awards, due to the lack of an evidentiary basis or the uncertainty surrounding such future events. Under statute, when determining alimony, a trial court considers: (1) a party's need for support; (2) the other party's ability to pay; (3) the type of alimony or the types of alimony appropriate in the case; and (4) the amount of alimony to award.

The first two considerations involve questions of fact to be supported by competent, substantial evidence. Once need and ability are determined, the court determines which type, or types, of alimony are appropriate. The court can award (1) bridge-the gap alimony; (2) rehabilitative alimony; (3) durational alimony; (4) permanent alimony or a combination. Statute limits a trial court’s discretion in this regard by making the court consider also the duration of the marriage. The trial court must demonstrate on the record or in its order that it has applied the correct law when selecting its choice of alimony. Under Florida statute, there lies a rebuttable presumption that a marriage of seventeen years or greater is a long-term marriage, for which permanent alimony may be awarded upon consideration of the statutory factors. There is no special burden of proof applicable to the award of permanent alimony in a long-term marriage, however, the court must include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties.  Durational alimony may be awarded when permanent periodic alimony is inappropriate or if there is no ongoing need for support on a permanent basis. The length of an award of durational alimony can be extended only under exceptional circumstances. There may be need to award a combination of the two.

In this case, the trial court erred in that it did not expressly find that permanent periodic alimony was inappropriate. The trial court erred further in that the judgment failed to contain the necessary findings to support durational alimony. The findings were so deficient as to hinder appellate review.  The appeals court reversed and remanded with special instructions.

Case:              Horrisberger, Jr. v. Horrisberger N/K/A Abbe
Court:            Second District Court of Appeal.
Trial Judge:   Laurel Moore Lee.
Attorneys:     Kathy C. George.
Issues:            Child Support.

Holding:      A trial court errs in determining child support based on a comparison of the gross income of one party to the net income of the other. In this case, the trial court erred in considering separate worksheets filed by the parties, which submitted respectively, figures which represented gross income net income. The appeals court reversed and remanded.

Case:              Cozzo v. Cozzo
Court:            Third District Court of Appeal.
Trial Judge:   Barbara Areces.
Attorneys:     Kimberly L. Boldt, Teresa Abood Hoffman, Maggie A. Berryman.
Issues:            Attorney’s Fees.

Holding:        Florida law requires a party seeking attorney’s fees to provide proof detailing the nature and extent of the services performed and expert testimony regarding the reasonableness of the fees. Where a party has provided sufficient, admissible proof of these two components, a trial court will not further mandate direct testimony from the attorney who performed the services. In this case, the trial court failed to provide a record which reveals sufficient evidence to support an award of attorney’s fees. The appeals court reversed the trial court’s order denying the Former Wife’s motion for attorney’s fees, and remanded for entry of an award of fees in accordance with the evidence presented.

Case:              Bush v. Henney
Court:            Fourth District Court of Appeal.
Trial Judge:   Laura M. Watson.
Attorneys:     Troy W. Klein.
Issues:            Domestic Injunction.

Holding:      Under Florida statute, a party to a domestic violence injunction may move at any time to modify or dissolve the injunction. No specific allegations are required. If the scenario underlying the injunction no longer exists so that the continuation of the injunction would serve no valid purpose, then the injunction should be modified or dissolved. In this case, the trial court erred in denying the Appellant’s motion to dissolve an injunction from approximately 14 years ago when he had never violated it, had never tried to contact the Appellee and he testified that he has no desire or intention of doing so. The appeals court remanded.

Case:              Malave v. Malave et al
Court:            Fifth District Court of Appeal.
Trial Judge:   Mark J. Hill.
Attorneys:     William Glenn Roy, III, Tyler J. Chasez, Nichole J. Segal, Andrew A. Harris.
Issues:            Equitable Distribution, Procedure.

Holding:       Ancillary relief is generally available in dissolution of marriage cases. However, the ancillary relief must relate to matters which are personal and proper to the divorce action itself. The common thread between them is a distinct relationship linking the parties and the subject of the litigation. A circuit court does not lack jurisdiction simply because a case is filed or assigned to the wrong division within the circuit court. All circuit court judges have the same jurisdiction within their respective circuits.  The filing of an action in the wrong division should be remedied by reassignment to the correct division as opposed to a dismissal of the action.

In this case, the family (trial) court erred as it found that it lacked jurisdiction over the divorce action because the Former Husband died before a judgment dissolving the marriage was entered and dismissed, with prejudice, the Former Wife’s ancillary petition. The parties were in the midst of divorce proceedings when the Former Husband and the parties’ children were tragically killed in a car accident. The divorce petition was abated by his death. Subsequently, the Former Wife discovered that he had allegedly made a substantial number of property and money transfers to his relatives shortly before his death. She deduced that the disposal of marital assets was intentional and that other parties, including his lawyer, had assisted in the allegedly fraudulent transfers. She moved to reopen the abated divorce case and to file an ancillary petition naming as defendants the parties whom she believed had assisted him, including his lawyer. The family court granted the motion. The parties named did not file a response. The clerk entered a default against the non-lawyer while the Former Husband’s previous lawyer filed a motion to dismiss the ancillary petition asserting that the family court lost jurisdiction over the divorce case when the husband died. The family court agreed and dismissed the ancillary petition. The appeals court reversed and found that the dismissal with prejudice was improvidently entered, and directed the circuit court to transfer the ancillary petition from its family division to its civil division. The Former Wife’s attempt to sue the Former Husband’s former lawyer for fraud in the divorce action was misplaced, as no judgment had been entered dissolving the marriage at the time of the Former Husband's death. Therefore, the divorce action ended when the Former Husband died. The Former Wife’s ancillary petition itself was not ancillary to the divorce because the Former Husband’s former lawyer was not a party to the divorce litigation. However, the family court should have transferred the matter to the civil division of the circuit court. By dismissing the action with prejudice the trial court completely denied the Former Wife the opportunity to raise her claims anywhere. The appeals court reversed the dismissal with prejudice of the ancillary petition and remanded for further proceedings in the appropriate division of the circuit court.

Case:              Wells v. Whitfield
Court:            First District Court of Appeal.
Trial Judge:   E. McRae Mathis.
Attorneys:     Seth Schwartz, Eric Lawson, Valarie Linnen.
Issues:            Child Support.

Holding:      In awarding child support, a trial court must make findings of fact based on record evidence in support. Meaningful appellate review is facilitated by such findings. In this case, while the trial court did not err (abuse of discretion) by refusing to allow the Father (Payor) to present additional evidence on rehearing, it erred when the amended final judgment did not justify the amount of the child support obligation. Specifically, the trial court properly found the Father failed to show that certain monies should be excluded from his income for child support purposes but failed to state in the amended final judgment how much of that money was part of his income for child support calculations. The appeals court could not meaningfully review the child support award to determine whether it is within the guidelines. The appeals court reversed and remanded for the trial court to make specific findings on point.

Case:              Nicolas v. Blanc
Court:            Third District Court of Appeal.
Trial Judge:   John Schlesinger.
Attorneys:      Hegel Laurent, Yolande Henry Van Dam, Barbara Green.
Issues:            Parenting, Relocation.

Holding:       In considering relocation applications, a trial court must properly consider and apply the enumerated factors under Florida Statutes (2014) to the record evidence. It must also articulate findings of fact based on such. In this case, the trial court did not err as it properly considered and applied the requisite and applicable factors under Florida Statutes (2014), and articulated findings of fact, supported by the competent substantial evidence presented. The appeals court affirmed the trial court’s order granting relocation.

Case:              Kelley v. Kelley
Court:            Fourth District Court of Appeal.
Trial Judge:   Timothy P. McCarthy.
Attorneys:     Troy William Klein, Bernice Marie Kelley.
Issues:            Equitable Distribution, Alimony, Child Support.

Holding:      Equitable Distribution

In distributing marital assets and liabilities, the presumption is an equal division, however, the court may order an unequal distribution based on factors enumerated under Florida Statutes.  Unequal distribution must be based on record evidence. In this case the trial court erred in awarding the Former Wife a greater share of the marital assets when it had already awarded her a balancing payment from the Former Husband in an effort to equalize the parties’ respective shares of the marital assets.  


An award of alimony will usually not be reversed on appeal absent an abuse of discretion. Under Florida Statutes (2014), the trial court must be consider the list of factors set out including any other consideration necessary to do justice between the parties. Failure to do so is reversible error. In this case the trial court erred in failing to make the requisite factual findings in support of the alimony award to Former Wife. Specifically, it failed to identify or make findings of fact relative to: the standard of living established during the marriage; the contributions of each party to the marriage; the tax treatment and consequences of the alimony award; and all sources of income available to either party. Without these findings, the appeals court was unable to make a proper determination as to the appropriateness of durational alimony. The appeals court reversed and remanded.

Case:              B.L. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge:   Michael Heisey.
Attorneys:     Antony P. Ryan, Richard G. Bartmon, Karla Perkins.
Issues:            Dependency.

Holding:       An adjudication of dependency based entirely, or largely, on inadmissible hearsay, must be reversed. In this case, the trial court erred in determining dependency on the basis of hearsay allegations of domestic violence by the Father. The allegations came through the Mother’s statements as conveyed through the investigating officers. The appeals court reversed.

Case:              Hutchinson v. Hutchinson
Court:            First District Court of Appeal.
Trial Judge:   Monica J. Brasington
Attorneys:      Stephen K. Johnson, Emily A. Snider, Jonathan P. Culver.
Issues:            Alimony, Attorney’s Fees.

Holding:      A trial court’s award of attorney’s fees is governed by statute. Such awards are to ensure that both parties will have a similar ability to obtain competent legal counsel. The general standard for awarding attorney’s fees and costs is the requesting spouse’s financial need and the other spouse’s ability to pay. Awards of attorney’s fees are reviewed for an abuse of discretion. Where marital property has been equitably distributed and the parties’ incomes have been equalized through an alimony award, a trial court abuses its discretion by awarding attorney’s fees. In this case, the trial court erred in awarding attorney’s fees to the Former Wife after it had equitably distributed the marital property and further awarded her alimony, thereby equalizing the parties’ incomes. The parties were in substantially the same financial positions and equally able to pay the fees and costs. The appeals court reversed the award of attorney’s fees and costs.

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