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 the Week Ending January 11, 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:              Valdes v. Valdes
Court:             Second District Court of Appeal.
Trial Judge:   Paul L. Huey.
Attorneys:      Jose C. Gonzalez, Ingrid Anderson.
Issues:            Child Support.

Holding:  Under Florida statute, the calculation of child support, and retroactive child support awards, requires attention be given to the parenting or time-sharing of children of the marriage.  If a particular parenting plan, a court-ordered timesharing schedule, or a time-sharing arrangement exercised by agreement of the parties provides that each child spend a substantial amount of time with each parent, the court shall adjust any award of child support, in consideration of, among other things, the percentage of overnight stays the child spends with each parent and day care and health insurance costs.  The support and retroactive support awards are calculated Using a particular formula under the statute. A trial court can consider the matter of a Former Spouse living rent-free during a certain period in determining sources of parental income or setting a child support amount—including to achieve an equitable result. In this case the trial court erred by incorrectly calculating child support. The matters were remanded for reconsideration and recalculation.

Case:              Jarrard v. Jarrard
Court:             Second District Court of Appeal.
Trial Judge:   Nick Nazaretian.
Attorneys:      Kristal L. Knox, Jeffrey S. Sirmons, Eileen H. Griffin.
Issues:            Alimony. 
Holding:         In petitioning the court for a modification of an award of alimony, the movant must establish there has been a sufficient, material, permanent and involuntary substantial change in circumstances that was not contemplated at the time of the final judgment of dissolution of marriage.

While the standard for an appellate court's review of a trial court's decision to modify alimony is often abuse of discretion, the issues arising during the adjudicatory process necessary to address the modification of alimony often involve standards of review other than abuse of discretion. The trial court makes findings of fact based on the evidence of the movant.  The appeals court must review these essential findings of fact, both express and implied, to assure that they are supported by competent, substantial evidence. These are legal conclusions, not factual determinations, and they are reviewed by the appellate court under a type of de novo review that is actually the normal second step in a "mixed" review.  In cases concerning modification or termination of alimony, this "mixed" standard applies to long-term marriages where an assessment of the supportive nature of the parties’ relationship is required. A mixed standard of review is actually performed by an appellate court as a sequence of two or more distinct reviews. Most commonly, the appellate court reviews the findings of fact to assure they are supported by competent, substantial evidence. Occasionally, the appellate court must review, de novo, the decision of the trial court as to applicable law. In so doing, the appellate court provides a modest presumption of correctness to the trial court because the issue usually involves a pure issue of law upon which the trial court has no greater insight than the appellate court. Finally, the appellate court reviews the trial court's legal conclusion, which was reached by the application of the law to the facts. The interrelationship between the findings of fact and the conclusions of law is what makes the standard of review "mixed." Thus, the trial court's legal conclusion is undoubtedly reviewed with a greater deference to the presumption that the trial court has made a correct ruling on the legal issue.

In this case, the trial court erred in finding that the Former Husband failed to meet his burden of proof that there was the required substantial change of circumstances that was permanent in nature regarding his income. In light of the inherent uncertainty in predicting future economic developments and given certain undisputed facts in this case, it was improper for the trial court to require the Former Husband to essentially prove his income would never increase again.  The fact that Former Husband’s income had been reduced for a  period of nearly two years already was sufficient evidence that the change was “permanent”.  The trial court’s decision was reversed and remanded in order for a proper decision as to the nature and extent of the appropriate modification. 

Case:               Chalmers v. Burrough
Court:             Third District Court of Appeal.
Trial Judge:   Antonio E. Marin.
Attorneys:      Nancy A. Hass, Roger J. Schindler.
Issues:            Child Support, Parenting.

Holding:          A trial court must make findings of fact, and its assessment as to the parenting responsibilities, in reliance of competent, substantial evidence. In this case, the trial court erred in making its order in the absence of competent substantial evidence to support a finding that shared parental responsibility would be detrimental to the child. The appeals court reversed and remanded for the trial court to clarify whether the supplemental final judgment maintained the parents’ shared parental responsibility.

Case:               Wiesenthal v. Wiesenthal
Court:              Fourth District Court of Appeal.
Trial Judge:    Susan Greenhawt.
Attorneys:      Douglas R. Bell, Tracy Belinda Newmark, Natalie Suzanne Kay.
Issues:            Child Support, Alimony, Attorney’s Fees, Contempt.

Holding:      Attorney’s Fees A trial court cannot award attorney’s fees without making findings as to one spouse’s ability to pay fees and the other spouse’s need to have the fees paid. The absence of such findings is generally fatal.  In this case, the trial court erred in making an award of attorney’s fees at the modification proceedings in the absence of consideration of relevant evidence as to claims that the parties’ respective incomes had changed dramatically.


Where the court imposes a contempt order and sets the conditions for purge of the contempt, the trial court’s order shall include both, a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding. Courts have characterized the rule as requiring the trial court to identify the source of payment for the purge amount. Further, a finding that a party divested himself of assets does not substitute for a finding of present ability to pay. Even a person who has wilfully or negligently divested himself or herself of the ability to pay money as ordered cannot be incarcerated for civil contempt when he or she does not then have the ability to effect a purge. In this case, the trial court erred in making the contempt order in the absence of the required sufficient evidence and factual findings that the payor wilfully and neglectfully failed to make the required payments. The appeals court reversed the contempt order and remanded both issues to the trial court, with directions to reconsider the issue after making specific factual findings regarding the parties’ net incomes and financial circumstances.

Case:             Wiesenthal v. Wiesenthal (2)
Court:            Fourth District Court of Appeal.
Trial Judge:   Susan Greenhawt.
Attorneys:     Douglas R. Bell.
Issues:           Attorney’s Fees, Contempt.
Holding:        A trial court cannot award attorney’s fees without making findings as to one spouse’s ability to pay fees and the other spouse’s need to have the fees paid.  An award of attorney’s fees, if improperly made, can be reversed where the order contains a finding that one party has the ability to pay, but does not make a finding of need on the part of the other party. Further, where an award is improper and requires reversal, a finding of contempt based upon such award must also be reversed.

Here, the prior attorney’s fee award underlying the prior contempt was the subject of the companion appeal in consolidated case numbers 4D11-3501, 4D11-4400 and 4D12-3515.  In the consolidated appeal, the court reversed the fees award as it was not supported by the requisite factual findings regarding the parties’ respective financial circumstances and need and ability to pay. The reversal of the underlying fee award necessitated reversal of the prior contempt order to the extent it was predicated upon the failure to pay such fees.

In this, No. 4D12-2807, being an additional appeal to the consolidated appeal, above, the Former Husband challenged an order holding him in contempt for failing to pay both alimony and attorney’s fees previously awarded to the former wife and requiring him to pay additional attorney’s fees to the Former Wife.  It was determined that the trial court erred in issuing the contempt order to the extent it was it was predicated on an errant finding in the court, below.  The additional fees award to the Former Wife was deficient in that was not supported by the required factual findings. The matter of the additional attorney’s fees was remanded to the trial court, with directions that the trial court reconsider the issue after making specific factual findings regarding the parties’ net incomes and financial circumstances.

Case:              D.S-B. v. D.C.F.
Court:             Fourth District Court of Appeal.
Trial Judge:   Moses Baker, Jr..
Attorneys:      Andrew A. Holness, Rosemarie Farrell, Patricia M. Propheter.
Issues:            Dependency, Procedure.

Holding:       In proceedings regarding the termination of parental rights, dependency and related matters, a trial court must make a determination that a parent has waived his or her right to counsel with an “intelligent and understanding choice,” as required by Florida statutory law.  Specifically, where a parental party is self-represented, an order for dependency must be made after the parent provides a valid waiver of counsel. This may require the court, in certain situations, to delve into how the psychological or mental condition of a parent would affect his or her ability to validly waive counsel (ie: that is has been made “knowingly, intelligently, and voluntarily,”).  In this case, the trial court erred in failing to make such inquiries when it allowed the Mother to proceed on her own. While the trial court queried her as to whether or not she had ever been adjudged incompetent or insane, the prior proceedings (including numerous legal counsel withdrawing for reasons related to client-counsel relationship), it failed to assess her mental health and other requisite circumstances as to her competence to proceed on her own. The trial court therefore failed to consider all of the factors relevant to whether she had made an intelligent and knowing choice to do so. The appeals court remanded for further proceedings and directed that if the Mother wished to represent herself, a hearing be conducted as to whether her waiver is knowing and intelligent.

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.