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 22, 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:              Kobe v. Kobe
Court:             First District Court of Appeal.
Trial Judge:   John L. Miller.
Attorneys:      Ross A. Keene, E. Jane Brehany.
Issues:            Alimony. 

Holding:  When a court awards more alimony than requested without sufficient findings in the final judgment to support the increased award, the award must be reversed and remanded for further proceedings. In this case, the trial court erred when it awarded alimony, both before and after the sale of the marital home, which, when coupled with the amount of income imputed to the Former Wife, exceeded her stated need.  Further the trial court made no findings to support this award. In addition, while there was ample evidence that the parties enjoyed a high standard of living during the marriage, there was little specific evidence in the record concerning the Former Wife’s expected expenses after the marital home sold, and the trial court did not make specific findings concerning this matter. The matter was reversed and remanded for further proceedings concerning the amount of alimony needed by the Former Wife.

Case:              Hair v. Hair
Court:             Fourth District Court of Appeal.
Trial Judge:   Timothy P. McCarthy.
Attorneys:      Michael L. Cohen.
Issues:            Domestic Violence Injunction. 

Holding: Florida Statutes provide that a family or household member may file a petition for protection against domestic violence if that person is either the victim of domestic violence as defined under statute or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence. Domestic violence is any assault, including but not limited to, aggravated assault, battery, sexual assault, stalking, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member. To determine whether the victim’s fear of imminent domestic violence is reasonable, the trial court must consider the current allegations, the parties’ behaviour within the relationship, and the history of the relationship as a whole. In this case, the trial court erred in granting the injunction when the petitioner failed to present sufficient evidence that she was a victim of domestic violence or was in imminent danger of becoming a victim of domestic violence. The appeals court reversed the final judgment of injunction for protection against domestic violence.

Case:              Polcz v. Polcz
Court:             Fourth District Court of Appeal.
Trial Judge:   Timothy P. McCarthy.
Attorneys:      E. Ross Zimmerman, Doreen Inkeles.
Issues:            Alimony. 

Holding:  The mathematical findings behind a modification order must support the court’s final decision as to a reduction in arrearages. In this case, the trial court erred insofar as within the modification order, the amount of alimony arrearages purportedly owed was inconsistent with the findings regarding the amount of alimony paid. Although the trial court may have had some other compelling reason for eliminating arrearages owed by the Former Husband, it was not apparent in the modification order. The appeals court reversed and remanded for clarification of arrearages.

Case:              K.K. v. D.C.F.
Court:             Second District Court of Appeal.
Trial Judge:   Emily A. Peacock.
Attorneys:     Jennifer S. Paullin, Pamela Jo Bondi, Meredith Hall.
Issues:            Dependency, Certiorari. 

Holding:  To be entitled to certiorari relief, the petitioner must show that the trial court's order departs from the essential requirements of the law and results in material harm that cannot be corrected on post-judgment appeal. The question of whether the order results in material harm that cannot be corrected on post-judgment appeal constitutes a jurisdictional test, while the question of whether the order departs from the essential requirements of the law constitutes a decision on the merits. It is improper, and a denial of due process, for a court to order relief not requested in any of the pleadings. As a general rule, case plan tasks and related activities imposed on parents and children must be meaningful and designed to address the facts and circumstances upon which the court based its determination regarding dependency, or, in some circumstances, a no-contact order. Further, those tasks must be the least intrusive possible into the life of the parent and child, must focus on clearly defined objectives, and must provide the most efficient path to quick reunification or permanent placement given the circumstances of the case.

In this case, the trial court erred when it ordered the dependent children undergo therapeutic assessments in connection with the denial of the Mother's motion to amend a safety plan which prohibited her current husband, from having any contact with the children - his stepchildren. (In previous proceedings, the current husband, stepfather, was not a party per the statute. The trial court therefore entered a no-contact order as between him and the children.) Any error in requiring the children to undergo therapeutic assessments results in material harm that cannot be corrected on pos-tjudgment appeal. Once the children undergo the assessments, the damage is done. The trial court's ruling departs from the essential requirements of the law in two ways. First, the ruling denied the Mother due process by ordering relief not requested in any of the pleadings. Neither the Mother nor the Department nor the Guardian ad Litem requested further assessments of the children in connection with this motion. The entry of an order imposing conditions about which the parents had no notice or opportunity to be heard violates due process. Requiring the children undergo therapeutic assessments which are unrelated to the reasons that resulted in the initial dependency (or, here, the no-contact order) is neither meaningfully designed to address the circumstances that brought them into care nor the least intrusive means possible to protect them. The appeals court quashed that portion of the dependency order.


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.