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 15, 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:             Cheek v. Hesik
Court:            First District Court of Appeal.
Trial Judge:   A. C. Soud, Jr..
Attorneys:     William S. Graessle, Jonathan W. Graessle.
Issues:           Process. 

Holding:         If a trial court issues an order adjudicating an issue not presented by the parties, or the pleadings, due process is infringed. The order, therefore, departs from the essential requirements of law. Further, where there has been no pleading requesting modification, then the modification of a judgment constitutes a jurisdictional defect. In this case, the trial court erred when it temporarily suspended the Former Husband’s one-half obligation toward travel costs and ordered that all timesharing less than four days in duration occur in the vicinity of his residence when such issues were neither properly raised by the pleadings nor set for hearing. In doing so, the Former Wife’s due process rights were violated. The appeals court reversed and remanded with instructions to vacate those portions of the order.

Case:               Solache v. Ibarra
Court:             Third District Court of Appeal.
Trial Judge:    Valerie R. Manno Schurr.
Attorneys:       Harvey D. Rogers, Nory Diaz, Nancy A. Hass.
Issues:             Child Support, Contempt.   

Holding:         Prospective Increase in Alimony: It is improper for a trial court to grant a final judgment which provides for an automatic prospective increase in alimony in the absence of specific factual findings, or the failure to articulate any reason, for same.

The trial court erred, however, with regards to the provision in the final judgment that, upon the child of the marriage reaching the age of majority (and the termination of child support payments), the monthly alimony payments to Former Wife would automatically increase. The final judgment failed to make any specific factual findings, or articulate any reason, for such an automatic prospective increase in alimony. The appeals court concluded it was error to provide for this automatic increase, affirmed the contempt order and reversed that portion of the final judgment providing for an automatic increase in alimony.

Contempt Order

An initial determination of a support obligation by a trial court, which must be supported by competent substantial evidence, creates a presumption of a payor’s ability to pay.  At a contempt hearing, it is open for a trial court to determine whether a payor alleged to have defaulted on such obligations, has overcome this presumption.  The trial court must, on competent substantial evidence, determine that the payor has the present ability to pay and failed or refused to comply with the support order to pay.

In this case, the trial court did not err with regard to the trial court’s contempt order. The final judgment was predicated upon an affirmative finding of the Former Husband’s ability to pay the support amount ordered. This initial determination, which was supported by competent substantial evidence, created a presumption of the Former Husband’s ability to pay. The trial court’s determination, at the contempt hearing, that former husband failed to overcome this presumption, had the present ability to pay, and failed to comply with this order, was also supported by competent substantial evidence. 

Case:              M.P. v. D.C.F.
Court:             Fourth District Court of Appeal.
rial Judge:   James Martz.
Attorneys:     Antony P. Ryan, Paulina Forrest, Rosemarie Farrell.
ssues:            Process. 

Holding:         Dependency Order

Courts are duty-bound to ensure that their dependency orders reflect only facts proved by competent, substantial evidence presented at the dependency hearing.

In this case, the trial court erred when it included, as a factual basis for the dependency, verbatim from the “prior history” summaries of call-out investigations that were set forth in the dependency petition, being uncorroborated reports not supported by evidence at trial. The appeals court affirmed the overall order but remanded with instructions for the trial court to strike the unsupported findings from its orders.
andom Drug Testing

A court may order a parent to submit to a mental or physical examination in circumstances where (1) the parent has requested custody of the child, (2) the parent’s mental or physical condition is in issue, and (3) there is good cause shown for the examination. An mental or physical examination may be ordered any time after a shelter petition or petition for dependency is filed and the mental or physical condition of a parent, caregiver, legal custodian, or other person who has custody or is requesting custody of a child, is in issue. A qualified professional must conduct the examination. Such matters, including a case plan, must be considered by the court having regard to whether the plan is meaningful and designed to address facts and circumstances upon which the court based the finding of dependency.

In this case, the trial court erred in requiring the Father to submit to random drug testing.  While the Father sought custody, and the dependency petition alleged that the father had a criminal history of drug possession, sufficient to place the issue of his substance use in issue, the trial evidence did not show that he abused drugs. There was also no evidence at trial regarding the Father’s alleged arrest for possession of drugs. The trial court relied, erroneously, on allegations of drug use, however this reliance fails to satisfy the good cause standard. Nor was there any showing that a substance abuse evaluation would meaningfully address the facts and circumstances which resulted in the adjudication of dependency as to the Father. The appeals court reversed for the trial court to strike the task of random drug testing from the Father’s case plan.   

Case:              Dugan v. Dugan
Court:             Fifth District Court of Appeal.
Trial Judge:   Shawn L. Briese.
Attorneys:     John N. Bogdanoff, Elizabeth Siano Harris.
Issues:            Alimony, Equitable Distribution, Attorney’s Fees. 

Holding:        An error on the face of a final judgment should be corrected. Findings related to alimony awards must have a proper evidentiary basis. A trial court must give its rationale, based on trial evidence, for a finding which forms part of the final judgment. In this case, the trial court erred in finding that all of Former Wife's medical expenses were entirely covered by Medicare, and entering such finding on the face of the judgment without sufficient rationale. Specifically, the trial court based its finding on what it described as the Former Husband's “uncontroverted testimony” notwithstanding that the Former Wife provided authority suggesting that she is responsible for Medicare premiums, deductibles, and noncovered expenses. The appeals court reversed on the issue of Former Wife's medical expenses and remanded.

Case:               McGarvey v. McGarvey
Court:             Fifth District Court of Appeal.
Trial Judge:   Hubert L. Grimes.
Attorneys:      Brian J. Lee, William R. Alexander.
Issues:            Time-sharing, Child Support, Attorney’s Fees. 

Holding:         In determining timesharing, a trial court must make an independent assessment of a timesharing arrangement that is in the best interests of the child or children.  Such an assessment must be based on substantial cogent evidence. In this case, the trial court erred in finding that the parties had reached an agreement addressing, among other things, parenting, and ruled on timesharing and child support. The parties later conceded that no such agreement had been reached. The appeals court reversed the ruling on timesharing and, as a result, determined that child support may also need reconsideration.  

Case:              Makaros v. Cichocki
Court:             Fifth District Court of Appeal.
Trial Judge:   James H. Earp.
Attorneys:      Elizabeth Siano Harris.
Issues:            Adoption. 

Holding:          Under Florida statute, jurisdiction of an adoption may be vested in the Florida courts by virtue of the fact that a child, or children, and the petitioner resided within the court's jurisdiction and the natural parent gave the required consent. An adoption proceeding is not barred merely because a competent court of another jurisdiction has validly exercised its authority by awarding custody of the child sought to be adopted when the court before whom adoption is sought otherwise has jurisdiction to proceed.  A relative (ie: aunt, uncle or even grandparent) with visitation rights procured in a different state, is not necessarily entitled to notice of the stepparent adoption proceedings.  The interest that entitles a person to notice of an adoption must be direct, financial, and immediate, and the person must show that he or she will gain or lose by the direct legal operation and effect of the judgment. A showing of an indirect, inconsequential, or contingent interest is inadequate, and a person with this indirect interest lacks standing to set aside a judgment of adoption.   

n this case, the trial court did not err in determining that Florida was the child’s home state when the final judgment was entered. Even though the “Home State” Rule was raised as a ground in the appeals process, under the “Tipsy Coachman” Rule, the appeals court concluded that the resolution of the case did not turn on whether Florida was the “Home State” of the child under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) at the time the court entered the adoption. Rather, regardless of whether Florida was the “Home State” of the child at the time the court entered the adoption, under Florida statute (as cited and relied on in Florida case law), the trial court had subject matter jurisdiction to enter the final judgment of adoption.     

Here, the Father had sole custody of the child at the time the petition for stepparent adoption was filed. Therefore, he was the only person required to consent to the adoption. Insofar as the Father had consented, the appeals court affirmed the trial court’s denial of the motion to set aside the final judgment of stepparent adoption.    

Case:              Bristow v. Bristow
Court:             Fifth District Court of Appeal.
Trial Judge:   Michelle T. Morley.
Issues:            Injunction for Protection Against Domestic Violence. 

Holding:        A petition for the dismissal of an injunction for protection against domestic violence must state a cause of action. It cannot make vague allegations. Rather, it must allege sufficient facts to show that a party has reasonable cause to believe he or she is in imminent danger of being a victim of domestic violence.

In this case the trial court did not err when it declined to set an evidentiary hearing regarding a petition filed by the Appellant on the grounds that the petition was deficient on the facts required to establish jurisdiction of the Florida courts pursuant to statute. The appeals court’s affirmance was without prejudice to the Appellant filing, if able to do so in good faith, a new, legally sufficient petition.

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.