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 February 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:              Atkinson v. Atkinson
Court:             Second District Court of Appeal.
Trial Judge:   Ashley B. Moody.
Attorneys:      Elizabeth S. Wheeler, Christian D. Denmon, Nicole Denmon, Andrew Plagge.
Issues:            Alimony.

Holding:        The court may reduce or terminate an award of alimony upon making specific written findings that, since the granting of a divorce and the award of alimony, a supportive relationship has existed between the payee and a person with whom the payee resides. Cohabitation often constitutes a change in circumstance. However, the definition of cohabitation and what facts, beyond a common residence, establish a supportive relationship rather than that of roommates or tenant/lodger. A trial court's decision concerning whether or not cohabitation has been established involves a mixed question of law and fact requiring a mixed standard of review, limited to determining whether they are supported by competent, substantial evidence. However, the appeals court reviewed the trial court's construction of the term "cohabitation" and its legal conclusions, de novo.  Matrimonial settlement agreements providing for the termination of alimony upon cohabitation are intended to protect the payor spouse from a continuing obligation to pay alimony when the payee spouse is residing with another person under circumstances similar or tantamount to marriage. Therefore, a finding of cohabitation requires more than the mere presence of another person under the payee spouse's roof.

In this case, the trial court erred in ruling that a male living in the Former Wife's residence amounted to "cohabitation with a male" within the meaning of the parties’ MSA, such that the Former Wife’s alimony award would terminate. On the evidence, the Former Wife and the man maintained a relationship more akin to his being a lodger or tenant. The appeals court reversed and remanded for, among other things, an amended order denying the Former Husband's petition to terminate his obligations to pay alimony and maintain a life insurance policy as security for its payment. 

Case:              Chamberlain v. Eisinger
Court:             Fourth District Court of Appeal.
Trial Judge:   Paul B. Kanarek.
Attorneys:      A. Julia Graves
Issues:            Child Support, Imputed Income, Time-Sharing, Reunification. 

Holding:        Modification of Custody & Timesharing
When modifying a parenting and timesharing plan, the primary considerations are the best interests of the children. To modify an order of custody, the movant must show that: the circumstances have substantially and materially changed since the original custody determination; this change could not be contemplated by the parties at the time of the original judgment; and it is in the child’s best interests to change custody. While this onus on the party seeking to modify is intended to preclude repeated custody disputes, it should not preclude legitimate review of the petition. Courts must evaluate all relevant statutory factors affecting the welfare and interests of the child. A trial court’s order changing custody enjoys a presumption of correctness on appellate review and will only be disturbed for abuse of discretion.

In this case, the trial court did not err in concluding a substantial change in circumstances existed and that such change warranted the modification of timesharing because it trial court considered evidence relevant to the best interests of the children.


A custodial parent has an affirmative obligation to encourage and nurture the relationship between the child and the noncustodial parent. This entails encouraging the child to interact with the noncustodial parent, taking good faith measures to ensure that the child visit and otherwise have frequent and continuing contact with the noncustodial parent and refraining from doing anything likely to undermine the relationship naturally fostered by such interaction. In this case, the trial court did not err in holding that the Former Husband was not thwarting the Former Wife’s efforts at reunification with the children insofar as he provided evidence to support his position while the Former Wife provided none. 

Child Support

The standard of review for a child support award is abuse of discretion. In this case, the trial court erred in factoring in the Former Husband’s alimony payments into child support for months where he failed to pay alimony.  The appeals court reversed and remanded for a determination of the amount of alimony paid to determine an offset to the retroactive child support obligation.

Imputing Income

When imputing income, the trial court must set forth factual findings, based on cogent evidence, concerning the probable and potential earnings level, source of imputed and actual income, and adjustments to income. In this case, the trial court erred in imputing income to the Former Husband in the absence of evidence. 

Case:              Clark v. Clark
Court:             First District Court of Appeal.
Trial Judge:   John L. Miller.
Attorneys:      E. Jane Brehany.
Issues:            Alimony, Property Distribution. 

Holding:        Under Florida statutes, the date the petition for dissolution of marriage was filed is an appropriate date for classifying the parties’ assets as marital, and the date for determining value of assets classified as marital is the date, or dates, as the court deems is just and fair in the circumstances. In this case, the trial court did not err in using the petition filing date as the date for valuing a marital asset, an investment account, which was lower in value at the end of the marriage than at the beginning. The appeals court reversed that portion of the final judgment equitably distributing the parties’ marital assets and liabilities, and remanded for correct determination of the value of the asset. 

Case:              Jonas v. Jonas
Court:             Fourth District Court of Appeal.
Trial Judge:   Lucy Chernow Brown.
Attorneys:      Roderick V. Hannah, Eric C. Christu.
Issues:            Jurisdiction, Foreign Judgments. 

Holding:        Comity requires courts state to refrain from exercising jurisdiction in certain cases. When a court is confronted with an action that would involve it in a serious interference with or usurpation of this continuing power, considerations of comity and orderly administration of justice demand that the non-rendering court should decline jurisdiction and remand the parties for their relief to the rendering court, so long as it is apparent that a remedy is available there. As for the principle of priority, or where a foreign court is first to assert jurisdiction, the usual remedy in such cases is to stay the subsequent proceeding in favor of the prior proceeding. The interests of judicial economy and finality may require that subsequent actions come to an end. The appeals court affirmed and required a former spouse to return to the original jurisdiction to conclude proceedings. 

Case:              Kelly v. Snietka
Court:             Fourth District Court of Appeal.
Trial Judge:   Thomas Barkdull, III.
Attorneys:      Craig A. Boudreau, Scott D. Glassman, Sue-Ellen Kenny.
Issues:            Paternity, Child Support. 

Holding:        Under Florida Rules of Appellate Procedure, the court may review any ruling or matter occurring before filing of a notice of appeal. A notice of appeal of a final judgment does not include orders entered after the final judgment unless they are specifically appealed. In this case, the trial court did not err in taking jurisdiction to consider an order vacating a prior final judgment and a motion to disqualify a trial judge, as both were issued before the final judgment, which is under appeal. 

Case:              Medina v. Haddad
Court:             Third District Court of Appeal.
Trial Judge:   Marcia B. Caballero.
Attorneys:      Brandon A. Rotbart.
Issues:            Procedure. 

Holding:        In deciding whether a protective order is appropriate in a particular case, the court must balance the competing interest that would be served by granting discovery or denying it.  Overall, means less intrusive than the release of confidential information should be used where available. In this case, the trial court erred by ordering the Former Wife to disclose settlement agreements between the law firm to which she was contracted and third parties. Such was the property of a non-party law firm or its non-party clients. Moreover, to do so might result in a breach of confidence. The appeals court quashed the order. 

Case:              Haeberli v. Haeberli
Court:             Fifth District Court of Appeal.
Trial Judge:   Bob Leblanc.
Issues:          Contempt.

Holding:          While a person facing civil contempt sanctions is not entitled to the full panoply of due process rights afforded to a person facing indirect criminal contempt charges, he or she is nonetheless entitled to a proceeding that meets the fundamental fairness requirements of the due process clause of the Fourteenth Amendment to the United States Constitution. Such fundamental fairness includes providing the alleged contemnor with adequate notice and an opportunity to be heard. The failure to provide the Former Husband with any notice that motions for contempt would be considered justifies a reversal and a new hearing. An order finding the alleged contemnor to be in contempt shall contain a finding that a prior order of support was entered, the alleged contemnor has failed to pay part or all of the support ordered, the alleged contemnor had the present ability to pay support, and the alleged contemnor wilfully failed to comply with the prior court order. The order shall contain a recital of the facts on which these findings are based. In this case, the trial court erred when it denied the Former Husband due process by ruling on motions that had not been noticed for hearing. The appeals court reversed. 

Case:              Baker v. Baker
Court:             Fifth District Court of Appeal.
Trial Judge:   Bob Leblanc.
Issues:           Custody.

Holding:          To succeed on a petition for a change of custody, whether permanent or temporary, the petitioner must plead and prove, AND the trial court must find on the evidence, the following:

a)      that a substantial change of circumstances occurred since entry of the previous custody order, which was not reasonably contemplated when the previous order was entered; and

b)      the requested change of custody is in the best interests of the child.

If the first requirement is not met, the trial court need not address the second. A modification petition must be properly pled. Failure to plead properly is fatal, such that a modification order can be reversed on that basis by an appeals court. In this case, the trial court erred in temporarily changing custody because Former Wife failed to plead and prove a substantial change in circumstances since the previous custody determination and by modifying custody at a hearing that that was not properly noticed as being for a modification proceeding. 

Case:              Maguire v. Wright
Court:             Fifth District Court of Appeal.
Trial Judge:   Alan A. Dickey.
Attorneys:      Sarah H. Bolinder.
Issues:            Custody. 

Holding:      Florida statutes set out the factors a trial court must consider in creating a parenting plan that governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child. While separate findings as to each factor are not required to sustain a temporary award, the record must reflect that the custody determination was made in the best interest of the child. However, the appeals court has also specifically recognized a “true emergency” exception to the general rule, concluding that the normal burden on the party seeking custody to show that the custody transfer is in the child’s best interest need not be met when there is an improper removal of a minor child from the state. If a court grants permission for a parent to remove a child from the jurisdiction for a date specific, the child must be returned by that date, failing which the removal becomes improper. Based on the context in which the removal is granted, it can be construed to be an interlocutory order determining the right to custody.  As such, the appeals court has jurisdiction under Florida Rules of Appellate Procedure. A further hearing may be necessary to resolve the issues of temporary shared parental responsibility and temporary timesharing in accordance with the relevant statutory criteria holding that the best interests of the child are paramount. In this case, the trial court did not err in granting temporary custody of the minor child to the Former Wife. The appeals court affirmed and remanded for an evidentiary hearing on temporary shared parental responsibility and temporary time-sharing. 

Case:              Juchnowicz v. Juchnowicz
Court:             Second District Court of Appeal.
Trial Judge:   Rochelle T. Curley.
Attorneys:      W. Russell Snyder, Susan J. Silverman, Cynthia L. Greene, Deborah J. Blue.
Issues:            Alimony.

Holding:       Permanent alimony is to allow the requesting spouse to maintain the standard of living established by the parties during the marriage. In viewing the totality of the circumstances, one spouse should not be  "shortchanged."  Each party's standard of living must come as close as possible to the prior lifestyle, given the available financial resources. An award of permanent alimony is reviewed pursuant to the abuse of discretion standard. An award of permanent periodic alimony typically terminates upon the death of the obligor. However, Florida statutes allows a trial court to order an alimony obligor to purchase or maintain a life insurance policy to the extent necessary to protect an award of alimony.

In this case, the trial court erred in making the alimony award without adequate consideration of the substantial income disparity between the parties. The award was not commensurate with the parties' marital standard of living and created a gross disparity. Nor was the award secured. The appeals court reversed the award of permanent periodic alimony and remanded for proceedings and to mandate the Husband to secure the alimony award with a life insurance policy.

Case:              Winton v. Saffer
Court:             Third District Court of Appeal.
Trial Judge:   George A. Sarduy.
Attorneys:      Chantale L. Suttle, Holly A. Aliprandi, John B. Agnetti, Armand Murach
Issues:            Arrearages.

Holding:        When considering a petition regarding arrearages, the trial court must make its findings based on substantial, competent evidence showing that the payor spouse failed to make support payments as required despite an apparent ability to do so. The record must discloses the calculations and evidence establishing the commencement of the arrearages, the total unpaid balance, and the computation of the purge amount. As to the purge amount, the court must make a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions.  The amount itself must be supported by substantial, competent evidence. Relief exceeding the amount which is pled is impermissible.

In this case, the trial court erred when it awarded an amount in excess of the amount calculable on the record and which exceeded the amount recoverable, based on the Former Wife’s pleadings. While there was substantial, competent evidence to support the court’s findings that the Former Husband failed to make support payments as required, despite an apparent ability to do so, the record did not disclose the calculations and evidence establishing the commencement of the arrearages, the total unpaid balance, and the computation of the purge amount. The appeals court reversed in part and remanded for further proceedings.

Case:              P.C. v. D.C.F. and Guardian ad litem
Court:             Fourth District Court of Appeal.
Trial Judge:   Kenneth L. Gillespie.
Attorneys:      Denise E. Kistner, Pamela Jo Bondi, Carolyn Schwarz.
Issues:            Parental Rights.

Holding:        When considering the termination of parental rights, the court must do so on the basis of:

a)      competent, substantial evidence of the grounds alleged by the Department of Children and Families under Florida statute;

b)      upon making statutorily-required findings of fact and conclusions of law; and

c)      ensuring that the termination of parental rights is not the least restrictive means to protect the child from harm.

The termination order should address which grounds form the basis for the termination.

In this case, the trial court erred in making the termination order which did not specify the grounds for the basis on termination in that competent, substantial evidence did not support one of the grounds alleged by the D.C.F. under Florida statute for termination. However, there was such evidence under the remaining allegations. The appeals court affirmed the termination of parental rights, but remanded with instructions to the court to amend the final judgment to indicate in its conclusions of law that the termination was based on the grounds alleged and substantiated.

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.