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 April 19, 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:             Putzig v. Bresk
Court:            Fourth District Court of Appeal.
Trial Judge:   Michael G. Kaplan.
Attorneys:     Richard F. Della Fera.
Issues:            Dating Violence.

Holding:      Florida statute requires a full hearing before entry of permanent injunction against dating violence. A full evidentiary hearing includes direct examination of witnesses, cross-examination of witnesses, and the presentation of any other evidence. A trial court abuses its discretion when it denies parties to a petition for a dating violence injunction the opportunity to call witnesses, present evidence, or cross-examine witnesses.  In this case, the trial court violated due process rights by not affording both parties the opportunity to do so. The appeals court reversed and remanded for a hearing. 

Case:              B.K. v. D.C.F.
Court:             Fourth District Court of Appeal.
Trial Judge:   Hope Bristol.
Attorneys:     Lori D. Shelby, Pamela Jo Bondi, Carolyn Schwarz, Patricia Murphy Propheter.
Issues:            Termination. 

Holding:     A parent has a fundamental liberty interest in the care, custody and companionship of his child. The only limitation on this right is the ultimate welfare of the child itself. To terminate a parent’s rights in his or her child, the state must first meet the statutory requirements to prove a statutory ground for termination and prove that termination is in the manifest best interest of the child. Then, to satisfy constitutional concerns, it also must prove that termination is the least restrictive means to protect the child from serious harm. The state must present clear and convincing evidence to support each element. Florida statute further provides that incarceration, or expected incarceration, for a significant portion of the child’s minority is a ground for termination.

In this case, the trial court did not err given that the Biological Father would have been incarcerated for nearly fifty percent of the child’s life. This, combined with the fact that the child was currently in foster care and the fact that Biological Father could not take custody of the child for several years, weighed in favor of termination.

Case:              Broga v. Broga
Court:             First District Court of Appeal.
Trial Judge:   Karen Gievers.
Attorneys:      Emilian “Ian” Bucataru, Marilyn K. Morris.
Issues:            Alimony, Child Support. 
Holding:    Imputing income is a two-step analysis: (1) the determination of whether the parent’s underemployment is voluntary; and (2) if so, the calculation of imputed income. Florida statute provides that monthly income shall be imputed to an unemployed or underemployed parent if the court finds such unemployment or underemployment is voluntary. The employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available. The same factors are applied for awards of child support and of alimony.

Given the uncertain nature of future employment, a court must make particularized findings regarding work history, occupational qualifications, and the current job market in the community. Failure to do so results in reversal. The prevailing income ‘in the community,’ not income that could have been earned from a relocation, is to be used.

In this case, the trial court erred in imputing income as the evidence of (1) the former husband’s occupational qualifications and (2) the prevailing earning level in the community was sparse and conflicting. Also, while there was no dispute concerning the Former Husband’s past work history, reliance on this factor alone was insufficient to impute income. While there were sufficient findings and competent substantial evidence of the Former Husband’s prior earnings, the same could not be said regarding the Former Husband’s occupational qualifications and the prevailing earning levels for similar positions within the relevant community. The appeals court reverse and remanded for the trial court to further address imputation of income.

Case:              Harris v. Harris
Court:             Fifth District Court of Appeal.
Trial Judge:   Heather L. Higbee.
Attorneys:     Jeffrey A. Conner.
Issues:            Alimony, Attorney’s Fees. 

Holding:      A trial court’s use of different standards for calculating each spouse’s income is an abuse of discretion. Courts properly impute income from a second job or secondary source where record evidence clearly reveals that such secondary income has been earned on a recurrent or steady basis. As for attorney’s fees, evidence is required to establish the claim. In this case, the trial court erred when it considered Former Husband’s secondary sources of income while ignoring Former Wife’s. The error was in its failure to consider her secondary income when there was sufficient evidence to demonstrate that she was able to earn a recurrent and steady secondary salary, in addition to working full-time. There was no abuse of discretion in the trial court’s decision to impute the minimum wage for a full-time workweek.  The trial court also erred in awarding Former Wife attorney’s fees, as no evidence supported the reasonableness of the fee award. The appeals court remanded. 

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.