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 October 2, 2016

October 5, 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:             Koch v. Koch
Court:            First District Court of Appeal.
Trial Judge: Stanley H. Griffis, III.
Attorneys:     S. Scott Walker.
Issues:           Parenting.

Holding: Restrictions upon a noncustodial parent’s right to expose his or her child to his or her religious beliefs have consistently been overturned in the absence of a clear, affirmative showing that the religious activities at issue will be harmful to the child. However, Florida Statutes (2015) requires Florida courts to determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child. Religiously-motivated behavior with an impact on a child’s welfare cannot be ignored. The welfare and best interests of the children must prevail. In this case, the trial court did not err in restricting parenting and timesharing of the parties’ children and, in particular, in its injunction of the Father discussing any religious matters with his children during visitation, as he used religion against the Mother. The Father’s use and/or leverage of religious views was abusive to the children. The appeals court affirmed.

Case:             T.M. v. D.C.F.
Court:   Second District Court of Appeal.
Trial Judge: James V. Pierce.
Attorneys:   Ita M. Neymotin, David C. Chafin, Bernie McCabe, Leslie M. Layne.
Issues: Guardianship, Supervision.

Holding: Florida Statutes (2015) require a trial court placing child in a permanent guardianship to make specific considerations as to the child, the placement and the permanent guardian(s). The trial court’s order must be written and specify why the child's parents are not fit to care for the child and why reunification is not possible by referring to specific findings of fact. It must also give reasons why, among other things, a permanent guardianship is being established instead of adoption; specify the frequency and nature of visitation or contact between the child and his or her parents, grandparents and his or her siblings and order the permanent guardian not to return the child to the parent’s physical care and custody without the approval of the court. In this case, the trial court erred as its order placing the Mother’s children in permanent guardianship failed to make the findings required by law. Specifically, the trial court's order made no specific findings as to why the Mother was not fit to care for her children; why reunification was not possible; why the court ordered permanent guardianship rather than adoption; and it failed to order the permanent guardian not to return the children to her physical care and custody without approval of the court. The trial court did not conduct an evidentiary hearing on the motion for permanent guardianship and did not have before it competent and substantial evidence to support the findings. The appeals court reversed and remanded.

Case:             M.S. v. D.C.F.
Court:            Second District Court of Appeal.
Trial Judge: Emily A. Peacock.
Attorneys:    Scott L. Robbins, Pamela Jo Bondi, Christopher Lumpkin, Mary Soorus, Laura E. Lawson.
Issues:            Termination.

Holding: Florida Statutes (2014) provide that grounds for termination of parental rights may be established when the parent or parents engaged in conduct toward the child (or other children) that demonstrates continuing the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child. Florida Statutes also permits termination based upon incarceration if the court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and that termination is in the child's best interest. The trial court must consider to assist it with this determination: a. The age of the child. b. The relationship between the child and the parent. c. The nature of the parent's current and past provision for the child's developmental, cognitive, psychological, and physical needs. d. The parent's history of criminal behavior, which may include the frequency of incarceration and the unavailability of the parent to the child due to incarceration. e. Any other factor the court deems relevant. In this case, the trial court did not err in its denial of the Mother’s motion seeking a new adjudicatory hearing based upon the alleged ineffective assistance of her court appointed counsel. Although 4 of the 5 grounds found by the trial court for termination were not supported by competent, substantial evidence, the trial court was correct in its finding that it would be harmful to the child to continue the relationship with the Mother, an incarcerated parent, under Florida Statutes (2014). The appeals court affirmed.

Case:             Guerra v. Guerra
Court:            Second District Court of Appeal.
Trial Judge: Mary C. Evans.
Attorneys:     Lisa P. Kirby.
Issues:           Attorney’s Fees.

Holding: It is error for a trial court to make prospective determinations purporting to decide whether support obligations will be dischargeable in bankruptcy. In this case, the trial court erred when it included in its order a provision characterizing the award of attorney's fees and costs as a form of support not dischargeable in bankruptcy or by any other means. The entry of the award was appropriate on the facts, but prospective determinations purporting to decide whether support obligations will be dischargeable in bankruptcy are improper. The appeals court reversed the relevant portion of the order and remanded.

Case:             N.G. v. D.C.F.
Court:            Fifth District Court of Appeal.
Trial Judge: Timothy R. Shea.
Attorneys:     David B. Falstad, Rosemarie Farrell, Richard S. Dellinger.
Issues:           Termination.

Holding: If a trial court terminates parental rights, it shall enter a written order of disposition briefly stating the facts upon which its decision to terminate the parental rights is made. In this case, the trial court erred as the final judgment terminating the Mother’s parental rights did not contain the findings of fact required by law. The appeals court reversed and remanded.

Case:             B.R. v. D.C.F.
Court:            Fifth District Court of Appeal.
Trial Judge: Timothy R. Shea.
Attorneys:     Aaron S. Baghdadi, Rosemarie Farrell, Richard S. Dellinger.
Issues:           Termination.

Case:             Coleman v. Bland
Court:            Fifth District Court of Appeal.
Trial Judge: Sally D.M. Kest.
Attorneys:     Carlton Pierce.
Issues:           Equitable Division, Attorney’s Fees.

Holding: Equitable Distribution

In this case, the trial court did not err when it denied the Former Wife’s claims regarding the Former Husband’s pension, and prior appeals had resolved the matter. Specifically, the trial court was correct as the Former Wife’s claims were: (1) barred by res judicata as they could have been raised in a prior appeal; (2) beyond the scope of remand on a prior appeal; (3) beyond the scope of the pleadings; and (4) lacked justification or supporting evidence. The appeals court affirmed.

Attorney’s Fees

The trial court erred in finding that the Former Husband was unable to pay appellate attorney’s fees. This finding contradicted its prior attorney’s fee award without any additional evidence or hearing. It was also unsupported by the record showing a large disparity in the parties’ incomes and the fact that the Former Wife prevailed on the significant issue on appeal and filed a timely motion for costs. The appeals court reversed and remanded.

Case:             D.R. & D.C.F. v. J.R., S.R., D.R. & G.A.L.
Court:            Fifth District Court of Appeal.
Trial Judge: Susan W. Stacy.
Attorneys:   H. Kyle Fletcher, Jr., Rosemarie Farrell, Eddie J. Bell, Heather Morcroft, Sara E. Goldfarb.
Issues:            Dependency, Guardianship.

Holding: The standard of review for a question of law in dependency proceedings is de novo. The Interstate Compact on the Placement of Children (ICPC) applies to out-of-state placements with natural parents. The ICPC was to ensure that a child is placed in a suitable environment. Once a court has legal custody of a child, it would be negligent to relinquish that child to an out-of-state parent without some indication that the parent is able to care for the child appropriately. In this case, the trial court erred in failing to comply with the requirements of the ICPC when it placed two of the parties’ minor children in the Father's custody (removing them from the Mother’s custody after issues of violence and abuse), in Massachusetts, without complying with the ICPC. However, the children were not required to be immediately returned to Florida. The appeals court reversed the portion of the final order terminating the trial court’s jurisdiction and remanded with instructions for the trial court to determine whether it would be in the children’s best interest for them to remain in the father's custody pending the completion of the ICPC process.

Case:             Clemens v. Clemens
Court:            Fifth District Court of Appeal.
Trial Judge: Dawn D. Nichols.
Attorneys:      Mark A. Skipper.
Issues:            Alimony.

Holding: Permanent alimony is used to provide for the needs and necessities of life for a former spouse as they were established during the marriage of the parties. For long-term marriages, an initial presumption in favor of permanent alimony exists. The can be rebutted by sufficient evidence. In this case, the trial court did not err in its denial of the Former Wife’s rehabilitative alimony. However, the trial court erred (abused its discretion) in denying her permanent alimony, specifically, when it found that she did not have a need for alimony based on the figures set forth in her most recent financial affidavit (based on her current living arrangements, where she was renting a single room in a friend’s residence). The trial court should have considered the necessities as they were established during the marriage of the parties. Further, as this was a long term marriage (19 years), there was an initial presumption of permanent alimony which the Former Husband did not rebut on the evidence. 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 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.

Florida Divorce and Family Update for Week Ending September 25, 2016

September 28, 2016

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.

Alimony

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.

Florida Divorce and Family Update for Week Ending September 11, 2016

September 14, 2016

Case:              Cherry v. Viker
Court:            First District Court of Appeal.
Trial Judge: Robert Wheeler.
Attorneys:     M. Stephen Stanfield, Emilian “Ian” Bucataru.
Issues:           Attorney’s Fees.

Holding: An award of attorney’s fees pursuant to Florida Statutes must be based on the need of the party seeking the fees and the ability of the other party to pay the fees, based on competent substantial evidence. Further, an award of temporary fees must be properly based on evidence to support the award because a temporary award does not create vested rights. In this case, the trial court erred as its order for temporary attorney’s fees to the Former Wife was not supported by competent, substantial evidence. Specifically, the trial court’s findings regarding the parties’ financial resources were not supported by evidence (only argument of counsel was presented at the hearing below). The trial court could not have properly determined the need of the party seeking fees or the ability of the other party to pay. The appeals court reversed.

Case:              Bork v. Bork
Court:            First District Court of Appeal.
Trial Judge: David Rimmer.
Attorneys:     Ross A. Keene, Brian P. North.
Issues:           Alimony.

Holding: In making an alimony award, a trial court’s award must be based on proper findings concerning the respective incomes of the parties, which must be based on proper record evidence. In this case, the trial court erred as it calculated the alimony award based on the Former Husband’s net income after it had been reduced by the amount of a prior, temporary alimony award to the Former Wife. The record therefore reflected a clear error in the financial information utilized by the trial court in setting the permanent alimony amount. Since the temporary alimony award was in place only until the final hearing, the Former Husband’s net monthly income should have been adjusted and increased by the temporary award amount before calculating the Former Wife’s alimony amount. The trial court’s finding concerning the former husband’s net monthly income was not supported by the evidence. The appeals court reversed and remanded.

Case:              Trainor v. Trainor
Court:            Fourth District Court of Appeal.
Trial Judge: Scott Suskauer.
Attorneys:     Christine Deis, Jenna D. Wickenhauser, Kendrick Almaguer, Yvette B. Reyes.
Issues:           Alimony, Attorney’s Fees.

Holding: The standard of review for an award of attorneys’ fees is abuse of discretion. While a trial court has broad discretion in making an award of temporary attorney’s fees, the trial court must make sufficient factual findings as to the reasonableness of the time expended and the hourly rates. In this case, the trial court erred when it failed to address the reasonableness of the Former Wife’s attorneys’ fees, regarding the number of hours expended and the hourly rate. The appeals court reversed and remanded.

Case:              Brezault v. Brezault
Court:            Fourth District Court of Appeal.
Trial Judge: Dennis D. Bailey.
Attorneys:     May L. Cain.
Issues:           Alimony.

Holding: Florida Statutes provide a specific, non-exhaustive list of factors for the court to consider in making such awards. While the nature and amount of an alimony award is in the discretion of the trial court, it must be supported by competent substantial evidence. Findings must be made regarding the statutory factors, based on the evidence. Absent special circumstances which do not appear in the judgment, an alimony award should not exceed a spouse’s need. In this case, the trial court erred in the amount of alimony awarded to the Former Husband as the decision was not supported by the evidence. Specifically, the recipient spouse’s need was not supported by competent substantial evidence. Further, the trial court failed to make the required findings to support the award. The appeals court reversed and remanded.

Case:              Street v. Street
Court:            First District Court of Appeal.
Trial Judge: Michael Flowers.
Attorneys:     David A. Carroll, David J. Oberliesen, Tonya Holman.
Issues:           Timesharing, Procedure.

Holding: A scrivener’s error on the final order can be grounds for reversal. In this case, the trial court erred as the final order erroneously reflected the timesharing split. The appeals court reversed the portions of the final order reflecting the (scrivener’s) error and remanded for recalculation of the Former Husband’s child support payment to reflect the appropriate timesharing split.

Case:              Liguori, Jr. v. Liguori
Court:            Second District Court of Appeal.
Trial Judge: John S. Carlin.
Attorneys:     Kathryn F. Pugh, Bernard T. King.
Issues:           Child Support, Alimony, Parenting.

Holding: Child Support

The court has discretion to award child support retroactive to the date when the parents no longer lived in the same household with the child. The standard of review for a trial court's imputation of income is whether competent substantial evidence supports it. A final judgment must allocate responsibility for the child/children's uncovered medical and dental costs if applicable. The court may adjust a child support award when the children spend a significant amount of time with the noncustodial parent.

In this case, the trial court erred when it recalculated the award of temporary child support to the extent it calculated the support from the date of filing the petition rather than the date the Former Husband moved out of the marital residence. Further, while the record supported imputation of income, the final judgment failed to allocate responsibility for the children's uncovered medical and dental costs and did not provide for the children's health and dental insurance. Finally, the trial court's calculation regarding the number of overnights allocated to each parent was incorrect. The appeals court reversed and remanded.

Timesharing

A trial court's timesharing plan must be affirmed if it is supported by competent substantial evidence. When forming a parenting plan, the trial court must consider the best interest of the child. In this case, the trial court did not err as the Former Husband did not ask the trial court to continue the plan that had been in place. Instead, he offered a timesharing proposal which the trial court declined but, instead, gave him a temporary plan with more after school time. There was no abuse of discretion in the trial court's decision not to adopt either parent’s proposal and set out a different schedule because the best interests of the children were considered. The appeals court affirmed.

Case:              C.B. v. D.C.F.
Court:            Fifth District Court of Appeal.
Trial Judge: Timothy R. Shea.
Attorneys:     Aaron S. Baghdadi, Derek J. Angell, Rosemarie Farrell.
Issues:           Termination, Abandonment.

Holding: An appellate court will affirm an order terminating parental rights if, upon the pleadings and evidence before the trial court, there was a theory or principle of law which would support the trial court's judgment in favor of termination. Abandonment under Florida Statutes requires strict findings of fact that there was, among other things, no contact between Parent and Child for a period of time. In this case, the trial court did not err in terminating parental rights because it was substantiated by the pleadings and evidence. However, the trial court erred in finding abandonment, because the record reflected the Mother regularly visited with the child, provided toys and clothing for the child, and the child appeared happy to see her during the scheduled visits. The appeals court affirmed as to termination and reversed as to the finding of abandonment.

About DivorceCourtAppeals.com and The 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 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.

Florida Divorce and Family Law Update for Week Ending August 28, 2016

September 1, 2016

Case:             Steele, Jr. v. Prince
Court:            First District Court of Appeal.
Trial Judge: Jonathan E. Sjostrom.
Attorneys: Joseph Robert Boyd, Jr..
Issues:           Timesharing.

Holding: The trial court’s interpretation of a mediation agreement is reviewed according to the de novo review standard. The interpretation of such agreements is subject to contract law principles. The language in a mediation agreement should be given its plain meaning and not be disturbed unless found to be ambiguous or in need of clarification, modification, or interpretation. In this case, the trial court erred in its interpretation of a mediation agreement governing the Father’s timesharing rights. The magistrate failed to give the language of the mediation agreement its plain meaning. By its terms, the agreement made the third weekend of the month a default period for timesharing, regardless of whether notice is provided. The appeals court reversed.

Case:             Rogers v. Wiggins
Court:            Second District Court of Appeal.
Trial Judge: Jack Helinger.
Attorneys:     John A. Smitten, Jane H. Grossman.
Issues:           Attorney’s Fees.

Holding: Florida Statutes permit a trial court to order a party in a child custody case to pay a reasonable amount for attorney's fees after considering the financial resources of both parties. The financial resources of the parties are the primary factor to be considered. However, other relevant factors to be considered include the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation. In this case, the trial court erred in its consideration of the statutory factors regarding modification of child custody. Specifically, its order made a finding that the Mother had the ability to pay the fee award, but the court's factual finding that the mother had no income and no assets. The record contradicted the court’s conclusion that she had the ability to pay. The appeals court reversed.

Case:             Shaver v. Shaver
Court:            Second District Court of Appeal.
Trial Judge: Susan Gardner.
Attorneys:     Jane H. Grossman, Allison M. Perry.
Issues:           Alimony, Equitable Distribution.

Holding: Alimony

Four steps are involved in a trial court's alimony decision-making process: the trial court must determine: (1) a party's need for support; (2) the other party's ability to pay; (3) the type of alimony or the types of alimony appropriate in the case; and (4) the amount of alimony to award. An order or award must be reversed where a final judgment is inconsistent with a trial court's oral pronouncement. In this case, the trial court erred as the written judgment was inconsistent with its oral pronouncement. Specifically, the final judgment awarded the Former Wife one year of rehabilitative alimony followed by four years of durational alimony but the oral judgment awarded one year of rehabilitative alimony followed by five years of durational alimony. Further, the written judgment failed to include a provision requiring the Former Husband to pay for the Former Wife's education expenses when the trial court orally ruled that he needed to pay for the rest of her education. The trial court failed to rely on competent, substantial evidence in making its determination and further declined to state a specific amount of alimony awarded and asked the Former Wife to come up with possible scenarios to show her need. The appeals court reversed.

Equitable Distribution

An award of equitable distribution is reversed and remanded to the lower court because of inconsistencies on the face of the judgment and because certain of the findings are not supported by the record. In this case, the trial court adopted the Former Wife's proposed equitable distribution schedule and found that her valuation of the marital assets was supported by competent, substantial evidence. But, like the alimony scenario, the trial court left it to the parties to submit a proposed equitable distribution scheme. It made no findings of fact based on competent, substantial evidence in awarding a distribution of assets and making findings that certain assets should be excluded from equitable distribution altogether. The appeals court reversed and remanded.

Case:             J.C.O. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge: Martin Zilber.
Attorneys:     Eugene F. Zenobi, Kevin Coyle Colbert, Karla Perkins, Laura J. Lee (Sanford).
Issues:           Dependency.

Holding: Where an adjudication of dependency is based entirely on inadmissible hearsay, or where the trial court necessarily relied on inadmissible hearsay, it must be reversed. Parents have a right to counsel. In this case, the trial court erred when it declined the Father, who lives in Nicaragua, a right to fair notice and to properly present evidence. Specifically, the Father argued he was not properly served with notice of the proceedings. While in hearing, the trial court had the Father’s legal counsel removed from the courtroom, and continued to hear argument from the Department on the procedural (service) issue, relying on the Case Manager’s testimony that she heard the Father admit he had received the notice, to make its decision. In the circumstances the Father was not allowed to appear and the evidence of the Case Manager was inadmissible hearsay. The appeals court reversed.

Case:             Ridings v. Ridings
Court:            Fourth District Court of Appeal.
Trial Judge: Jessica Ticktin.
Attorneys:     Irene Annunziata, Angelica Del Vecchio.
Issues:           Alimony, Equitable Distribution, Attorney’s Fees.

Holding: When distributing marital liabilities, a trial court should include both identification of the liabilities and designation of which Former Spouse shall be responsible for payment of the liability. It is reversible error for a trial court to simply indicate that marital liabilities are to be equally divided without identifying each specific liability and without identifying which spouse is responsible for each. In this case, the trial court erred as the final judgment awarded a distribution of marital liabilities which failed to identify the liability and which Former Spouse was responsible for paying it. The appeals court reversed.

Case:             Mitchell v. Mitchell
Court:            Fourth District Court of Appeal.
Trial Judge: Tim Bailey.
Attorneys:     Jason B. Blank, Michael J. Dunleavy.
Issues:           Injunction for Protection Against Domestic Violence.

Holding: A trial court abuses its discretion by entering a domestic violence injunction when the ruling is not supported by competent, substantial evidence. Florida Statutes (2015), create a cause of action for an injunction for protection against domestic violence on behalf of a family or household member who has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence. The danger feared must be imminent and the rationale for the fear must be objectively reasonable. General harassment does not suffice. Nor does verbal violence, mental instability, a bad temper, depressive and suicidal statements, angry messages, vague actions, or general conditional future threats without overt action implying imminence. In determining whether the petitioner's fear is reasonable, the trial court must consider the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole. In this case, the trial court mischaracterized the law. Specifically, in granting the Former Wife’s request for an injunction, the trial court explained that the question is whether there is there behavior on the part of one party that “scares” the other. on your part that scares her?” The trial court then found credible the Former Wife’s testimony that the Former Husband’s text messages were scaring her. However, the trial court’s characterization of the law was incorrect. The question should be whether the Former Wife’s fear was objectively reasonable. Further, the trial court was required to conduct a close examination of the record, the text messages, and the surrounding context, to make a determination on the facts whether it was objectively reasonable for the Former Wife to have a fear for her own safety. On the fact, the Former Husband’s text messages contained no overt (or implicit) threats to the Former Wife. The appeals court reversed.

Case:             Colino v. Colino
Court:            Fifth District Court of Appeal.
Trial Judge: Michael S. Orfinger.
Attorneys:     Brett Hartley, Donald Appignani.
Issues:           Equitable Distribution, Alimony.

Holding: Equitable Distribution

A trial court’s interpretation of a prenuptial agreement is reviewed de novo, as such agreements are governed by the law of contracts. Where a contract is clear and unambiguous, it must be enforced pursuant to its plain language. In this case, the trial court misinterpreted the parties’ prenuptial agreement when it awarded to the Former Wife certain real property purchased by the Former Husband, transferred to the Former Wife which she later transferred back to the Former Husband by quitclaim. Specifically, the prenuptial agreement permitted her, as an owner of separate property, to dispose of such property by gift, sale or transfer. When the Former Wife obtained the property by transfer, it became her separate property. She then transferred it to the Former Husband and the series of transactions was consistent with the terms of the prenuptial agreement. She transferred the property to the Former Husband, it belonged to him and remained his separate property when he filed his petition for dissolution of marriage. Furthermore, the prenuptial agreement expressly provided that neither party would make any claim or demand on the separate property of the other party. Since neither party attempted to vacate or rescind the prenuptial agreement, the trial court was obligated to enforce its clear terms and distribute the property to Former Husband. The appeals court reversed.

Alimony

Trial courts, in dissolution of marriage cases, possess broad discretionary authority with various remedies available to do equity and justice between the parties. In this case, the trial court erred when, while it recognized that, based upon the length of the parties’ marriage and the terms of the prenuptial agreement, an award of alimony was permissible. Further, the trial court found that Former Wife demonstrated a need for alimony but elected not to award alimony to her due, in part, to its equitable distribution of the parties’ assets. Given the appeals court’s decision to reverse on the equitable distribution, the appeals court directed the trial court to reconsider and receive evidence on support.

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Florida Divorce and Family Law Update for Week Ending August 21, 2016

August 24, 2016

Case:             Ketcher v. Ketcher
Court:            First District Court of Appeal.
Trial Judge: Linda F. McCallum.
Attorneys:     Brian P. North, Summer N. Boyd.
Issues:           Alimony.

Holding: Where a final judgment is reversed and remanded with specific instructions, the lower court has authority to conduct further proceedings in conformity with the instructions but the court cannot exceed the specific bounds of that instruction. The appellate court has inherent authority to enforce a mandate issued in a matter. In this case, the trial court erred when it, on remand, entered an amended final judgment that exceeded the scope of its mandate by changing the type of alimony awarded from permanent to durational. The prior opinion of the appellate court specifically and unambiguously directed the trial court to make additional findings concerning the parties’ incomes and expenses, and if necessary, to reconsider the amount of the alimony award. The opinion did not authorize the trial court to reconsider the type of alimony awarded. By changing the type of alimony awarded from permanent to durational, the trial court impermissibly exceeded the scope of the mandate. The appeals court granted the motion to enforce the mandate, quash the amended final judgment, and remanded for further proceedings consistent with its prior opinion.

Case:             Reider v. Reider
Court:   Second District Court of Appeal.
Trial Judge: Neil A. Roddenbery.
Attorneys:     Debra J. Sutton.
Issues:           Alimony.

Holding: Under Florida Statute, trial courts have the authority to enforce alimony payments with injunctions. Injunctive relief must be presented to the court for decision. The evidentiary record must be sufficient to support such injunctions and the injunctive order must contains a statement of the reasons why the injunctions were entered. In this case, the trial court erred in ordering certain measures to enforce the Former Husband's obligations under the parties’ judgment and Marital Settlement Agreement that expressly, or substantively, enjoin him to take, or refrain from taking, certain actions with respect to his non-marital property. These measures were not part of the claim for relief or set out in the pleadings. Furthermore, the evidentiary record was not sufficient to support these injunctions and the order on appeal contains no statement of the reasons why these injunctions were entered. One such provision threatens incarceration if he failed to sell a home he maintained in another state and use the resulting proceeds to satisfy an alimony arrearage. Another enjoins him from transferring any of the property listed on his financial affidavit except for purposes of satisfying the alimony arrearage. The appeals court reversed on point.

Case:             Viruet v. Grace
Court:            Fifth District Court of Appeal.
Trial Judge: Heather Pinder Rodriguez.
Attorneys:     Scott E. Siverson.
Issues:           Child Support.

Holding: When ordering a party to pay toward child support arrears, the trial court must specify the amount of retroactive support owed in the final judgment or elsewhere. In this case, the trial court erred in ordering the Former Husband to pay a set monthly amount toward arrearage in child support when the final judgment (or the magistrate’s report, which the trial court approved) failed to state the amount of the retroactive child support owed. The appeals court reversed and remanded.

Case:             Manubens v. Manubens
Court:            Fifth District Court of Appeal.
Trial Judge: Mike Murphy.
Attorneys:     Mark A. Skipper, Sherri K. DeWitt.
Issues:           Parenting.

Holding: Certiorari jurisdiction lies to review an order compelling a mental examination. However, certiorari relief can only be granted if the trial court's order amounts to a departure from the essential requirements of the law, resulting in a miscarriage of justice. Florida Family Law Rules of Procedure govern the examination of persons in family law matters as to mental conditions. Under the Rules, a party may request any other party to submit to examination by a qualified expert when the condition that is the subject of the requested examination is in controversy. An examination is authorized only when the party submitting the request has good cause for the examination. The party submitting the request has the burden of showing that both the “in controversy” and “good cause” prongs have been satisfied. The burden of proof is heightened when the party to be examined has not voluntarily placed that issue in controversy. An order for examination must specify the manner, conditions, and scope of an examination. Failure to do so effectively gives the psychologist “carte blanche” to perform any type of testing and analysis. Such an open-ended order departs from the essential requirements of the law, resulting in a miscarriage of justice.

In this court, the trial court erred in ordering the Former Wife to undergo psychological counseling. Specifically, (1) the trial court made no findings that her mental health was in controversy; and (2) the language of the order was too broad because it did not identify the length of the examination, the type of testing, or limits of the testing. The trial court's order did not address either the “in controversy” or the “good cause” requirements of the Rules. The appeals court quashed the order.

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Florida Divorce and Family Law Update for Week Ending August 14, 2016

August 17, 2016

Case:             Donovan v. Donovan
Court:            First District Court of Appeal.
Trial Judge: John "Jay" Gontarek.
Attorneys:     Michael T. Webster, E. Jane Brehany, R. Stan Peeler.
Issues:           Alimony.

Holding: A trial court can explicitly state that it “retains jurisdiction to enter whatever other orders which may be required,” including for modification. A nominal award of alimony preserves the trial court’s jurisdiction to revisit the matter in the future. In this case, the trial court did not err when it entered a nominal alimony award to retain jurisdiction, but that was not necessary to do because jurisdiction was already retained when the court stated so. The appeals court affirmed.

Case:            Chandler v. Kibbie
Court:            First District Court of Appeal.
Trial Judge: Elizabeth A. Senterfitt.
Attorneys:     Samuel S. Jacobson, Renae J. Kenny.
Issues:           Attorney’s Fees.

Holding: In making an award of attorney’s fees, a trial court shall make factual findings regarding the total number of hours expended by the party’s attorney, the hourly rate, and the reasonableness of the fee. In this case, the trial court erred in failing to make certain findings relating to the reasonableness of the award. The appeals court reversed.

Case:             Palmer v. Palmer
Court:            First District Court of Appeal.
Trial Judge: John Miller, David Rimmer.
Attorneys:     Ross A. Keene, Kim Anthony Skievaski.
Issues:           Attorney’s Fees.

Holding: Under Florida Statutes (2011), the court may, after considering various factors, including the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees. The financial resources of the parties are the primary factor to be considered, but the other relevant circumstances include the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation was brought or maintained primarily to harass (or whether a defense was raised mainly to frustrate or stall); and the existence and course of prior or pending litigation. There is no authority for denying fees solely based on the failure to accept an offer of settlement. In this case, the trial court erred when it declined to award attorney’s fees to the Former Wife because she rejected an offer of settlement. The court misapplied the law. The court should only exercise the power to reduce fees when it would be inequitable not to do so after a review of all circumstances. The appeals court reversed and remanded to the trial court to re-address fees evaluating all pertinent considerations and not just the rejection of the settlement offer.

Case:             Ngyuen v. Ngyuen
Court:            First District Court of Appeal.
Trial Judge: Linda F. McCallum.
Attorneys:     Beth M. Terry, Carin E. Maxey.
Issues:           Equitable Distribution.

Holding: A trial court’s ruling on equitable distribution is reviewed for an abuse of discretion. An appellate court must determine whether the trial court’s order is supported by competent, substantial evidence. A trial court errs in attributing gross rental income to a party when evidence of expenses is present. In this case, the trial court erred in its allocation of rental income in devising an equitable distribution scheme which failed to account for the record evidence of expenses associated with the properties (including mortgage payments). The appeals court reversed and remanded.

Case:              N.A.G. v. J.L.G.
Court:            Second District Court of Appeal.
Trial Judge: Patrice W. Moore.
Attorneys:     Deborah L. Thomson, Ingrid Anderson.
Issues:           Parental Rights.

Holding: Florida Statute defines abandonment as, “a situation in which the parent or person having legal custody of a child, while being able, makes little or no provision for the child's support or makes little or no effort to communicate with the child, which situation is sufficient to evince an intent to reject parental responsibilities.” Abandonment is absolute, complete, and intentional and must be established by clear and convincing evidence. Termination may not be based on involuntary abandonment. In this case, the trial court incorrectly found that the Mother abandoned her children. Specifically, the trial court erred as a matter of law when it failed to rely on record evidence to support the finding of abandonment. It further erred by misapplying the statutory definition of abandonment. In particular, the evidence was not legally sufficient to support a finding that the Mother's actions evinced a settled purpose to forgo and relinquish all parental responsibilities. The appeals court reversed.

Case:             Loza v. Marin
Court:            Second District Court of Appeal.
Trial Judge: Catherine L. Combee.
Attorneys:     Javier D. Alvarez, Jean Marie Henne.
Issues:           Child Support.

Holding: Generally, the legal duty of a parent to support his or her child ceases at the age of majority. Child support orders terminate upon a child reaching majority, unless statutory exceptions apply or the parties agree otherwise. While a child support order is in force, a court has continuing jurisdiction to modify under a variety of circumstances but only during the period provided for support. Florida courts have grappled with whether or not a petition may be used to extend support for an incapacitated child beyond the age of majority even if the petition has been filed after the support obligation has terminated. The crucial issue is whether a child's continuing dependence was adjudicated before the child reached the age of majority. In this case, the trial court erred in denying the Former Husband’s petition to modify child support and the allowance of the Former Wife's counter-petition for modification of child support. The Former Wife’s counter-petition was untimely as it was made after the child turned 18 and after the parties’ MSA. As such, the trial court lacked jurisdiction to extend the Former Husband's child support obligation beyond the dependent child's eighteenth birthday. The appeals court reversed and remanded.

Case:             J.P. v. V.P.
Court:            Fourth District Court of Appeal.
Trial Judge: James L. Martz.
Attorneys:     Andrew A. Holness, Marie Calla Quartell.
Issues:           Child Support.

Holding: A post-disposition order that failed to comply with Florida Rules of Juvenile Procedure as to contents of fact and law may be remanded for the trial court to make such necessary findings. In this case, the trial court erred in an order with implemented a visitation schedule that did not contain specific findings of fact and conclusions of law as required by Florida Rules of Juvenile Procedure. The appeals court remanded.

Case:             Beckford v. Drogan
Court:            Fourth District Court of Appeal.
Trial Judge: Karen M. Miller.
Attorneys:     Rhea P. Grossman, Lydia A. Worden, Celia E. Henry.
Issues:           Paternity.

Holding: Under Florida Statutes, the plaintiff in for a paternity action has a choice of venue and the defendant must prove that the venue selection is improper. A party may have commenced proceedings for one issue in one venue and the other party for a different issue in another. The rules endorse the principle of placing related matters before the same family court judge unless impractical. It is then up to the courts to determine the application of rules and venue. In this case, the trial court did not err when it determined that the Mother did not establish that the Father’s venue choice was improper and maintained the venue on the issue of paternity, even though she had already commenced child support proceedings at another. The appeals court affirmed the order but without prejudice to the court considering a transfer based upon the convenience of the parties and witness, or to unify the proceedings with respect to the child, pending in two different counties.

Case:             Palmer, Jr. v. Palmer
Court:            Fifth District Court of Appeal.
Trial Judge: Kellie J. Miles.
Attorneys:     Therese M. Truelove, Douglas A. Kneller, Steven J. Guardiano.
Issues:            Alimony.

Holding: An order requiring a spouse to obtain a life insurance policy as security for an alimony award must be supported by record evidence, and the order must include findings as to the cost of insurance and any special circumstances justifying the need for the policy. Failure to make specific findings to support the award is reversible error. In this case, the trial court erred in not making the requisite findings. Other than the Former Wife’s request for insurance in her initial petition, the record was devoid of any testimony or evidence regarding a policy or any special circumstances justifying its requirement. The appeals court reversed and remanded for the trial court to make sufficient findings of fact to support the award or remove the insurance requirement from its order.

Case:             Gross v. Zimmerman
Court:            Fourth District Court of Appeal.
Trial Judge: Lisa S. Small.
Attorneys:     Cynthia L. Greene, Tracy Belinda Newmark, Natalie Suzanne Kay.
Issues:           Child Support, Paternity.

Holding: The standard of review for a child support award is abuse of discretion. A court will begin its consideration of child support awards with the statutory child support guideline amounts. The guidelines presumptively establish the amount of awards in an initial proceeding or in a proceeding for modification. The trier of fact may also make an award which varies, plus or minus 5%, from the guideline amount, after considering all relevant factors, including the needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent, only upon a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate. In this case, the trial court did not err in its denial of the Father’s downward deviation from the guideline child support amount since he did not demonstrate reversible error in the trial court’s decision. Nor did it err in failing to order him to order child care costs, temporary support or attorney’s fees as the Mother either failed to provide sufficient evidence. The appeals court affirmed on those points. The trial court erred, however, when it abused its discretion by imposing, in a parenting plan, an additional financial obligation requiring the Father to pay almost all of the child’s extracurricular activities, over and above the maximum amount of child support, where there was no record support for the inclusion of this additional financial obligation. Specifically, there was no evidence that the child was involved in any extracurricular activities, and the trial court’s open-ended award could subject the Father to the expense of any extracurricular activity in which the Mother may involve the child without any input by the Father or regard as to its cost. The appeals court reversed.

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