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 and Family Update for Week Ending September 25, 2016

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:             Flynn v. McCraney & McCraney 
Court:            First District Court of Appeal.
Trial Judge:   Jan Shackelford.
Attorneys:     Autumn O. Beck.
Issues:           Paternity, Time-sharing.

Holding:      A child born to an intact marriage cannot be the subject of a paternity proceeding brought by a biological father. It is a fundamental error for a trial court to grant relief pursuant to a nonexistent cause of action. In this case, the trial court did not err in dismissing Mr. Flynn’s petition the minor child was born to the intact marriage of Mr. and Mrs. McCraney. The appeals court affirmed.

Case:             Browne v. Blanton-Browne
Court:            First District Court of Appeal.
Trial Judge:
Attorneys:     Shelley L. Thibodeau.
Issues:           Certiorari, Child Support, Attorney’s Fees.

Holding:       Under Florida Family Law Rules of Procedure, a notice of hearing on a motion for civil contempt related to family support matters must specify the time and place of the hearing and contain specific language. If an alleged contemnor fails to appear for the hearing after proper notice, the hearing is to proceed simply to allow the movant to make a prima facie case of contempt in accordance with the Rules. If they meet this burden, the court is required to set a reasonable purge amount based on the individual circumstances of the parties. The court may issue a writ of bodily attachment to have the alleged contemnor brought in to answer the motion. After the court hears from both parties, it may grant or deny the motion for contempt. If the order grants the motion, it must find that the contemnor had the present ability to pay support and willfully failed to do so. The court must make a finding that the contemnor has the present ability to comply with the purge provision and state the factual basis for that finding.

In this case, the trial court erred when it failed to follow Florida Family Law Rules of Procedure when it found the Former Husband in contempt for failure to pay his child support arrearage and the attorneys’ fees. The trial court failed to warn the Former Husband that his failure to appear at the initial hearing for contempt could result in a writ authorizing his arrest. The appeals court granted the petition and quashed the order of contempt and related writ of bodily attachment.

Case:             Z.R. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge:   Cindy S. Lederman.
Attorneys:     Albert W. Guffanti, Rosemarie Farrell, Laura J. Lee (Sanford).
Issues:           Termination.

Holding:    A trial court record must reflect whether a party’s parental rights have been terminated. Under Florida Statutes, the termination of the rights of one parent must generally be accompanied by the termination of the rights of the other. In this case, the trial court erred because, while the record supportedtermination of the Mother’s rights, the record did not reflect whether the Fathers’ parental rights were also terminated. Nor did the trial court’s order discuss the factors under Florida Statutes, which limit the court’s power to terminate the rights of one parent without terminating the rights of the other. Given this, and the additional fact that the children for adoption, the appeals court affirmed in part, reversed in part and remanded.

Case:             Koscher v. Koscher
Court:            Fourth District Court of Appeal.
Trial Judge:  Tim Bailey.
Attorneys:     Terrence P. O’Connor, Michelle Ralat Brinner.
Issues:           Imputation, Alimony, Attorney’s Fees.

Holding:      Imputation

A trial court’s can impute income to a Former Spouse it is shown he or she is earning less than he could, based on a showing that he or she could earn more if they exercised best efforts, based on competent substantial evidence. The trial court engages in a two-step process. First, the court must conclude that the termination of income was voluntary. If so, the court must determine whether the unemployment resulted from the Former Spouse’s pursuit of his or her own interests or through inadequate efforts to find employment at a level of pay equal to or better than that formerly received. A Former Spouse bears the obligation to be diligent in finding replacement income even if he or she is initially involuntarily unemployed; is physically and mentally capable and otherwise employable. severance for over a year). Then, the Former Spouse claiming income should be imputed to the unemployed or underemployed spouse bears the burden of showing both employability and that jobs are available. The trial court must set forth factual findings as to the probable and potential earnings level, source of imputed and actual income, and adjustments to income. The trial court may only impute a level of income supported by the evidence of employment potential and probable earnings based on history, qualifications, and prevailing wages.

In this case the trial court erred in its analysis of the issue of imputing income to the Former Husband. The evidence showed he was involuntarily terminated from his last job, his continued unemployment was voluntary, and he did not make any diligent efforts to seek comparable employment. The trial court should have performed the necessary steps to calculate an actual value for the imputed income. The appeals court reversed and remanded for the trial court to take additional evidence to determine the amount of income it should impute to the Former Husband.


This Court reviews an alimony award with the abuse of discretion standard. Where the record does not contain substantial, competent evidence to support the trial court’s findings regarding the amount of alimony awarded, the appellate court will reverse. When one party is entitled to permanent periodic alimony but the other spouse has no current ability to pay, the trial court should award a nominal sum of permanent periodic alimony, which will give the court jurisdiction to reconsider the award should the parties’ financial circumstances change. The purpose of imputed income is to determine the amount that a spouse is able to earn, above and beyond what the spouse actually earns. Nominal alimony is therefore inappropriate in a situation where the paying spouse has the ability to pay more if he/she was to earn the amount the court has determined could be earned through diligent efforts. The appeals court reversed and remanded. Upon remand, the trial court is to impute income to the Former Husband and revisit the amount of permanent periodic alimony to be awarded to the Former Wife, commencing with the date of initial dissolution of marriage.

Attorney’s Fees

The court may, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees . . . to the other party of maintaining or defending any proceeding under this chapter.  A trial court may also consider other factors, including the parties’ behaviors and earning potential. In deciding whether an award of attorney’s fees is justified, a trial court may impute income to a voluntarily unemployed or voluntarily underemployed party.  The trial court denied the Former Wife’s request for attorneys’ fees because it found the parties to be equal based on their net worth and income. However, there was no evidence of her having any income and the Former Husband conceded she was unemployable for medical reasons. On the other hand, the evidence presented showed that the husband was an experienced business executive with significant earning potential. Therefore, the parties were not in similar circumstances. The appeals court reversed and 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 paysreferral 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.