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 September 20, 2015

September 23, 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:              Jackson v. Jackson
Court:            Second District Court of Appeal.
Trial Judge:   Kimberly Carlton Bonner.
Attorneys:     Jaime L. Wallace.
Issues:            Attorney’s Fees.

Holding: An order for summary judgment which includes the words “go hence without day” is final. Florida Rules of Appellate Procedure currently require a notice of appeal of a final summary judgment on a claim for breach of contract to be filed within 30 days of rendition of the order to be reviewed. Florida statute provides for an award of reasonable attorney’s fees when the court finds that the losing party knew, or should have known, that a claim or defense, when initially presented to the court or any time prior to trial:

a. Was not supported by material facts necessary to establish the claim or defense; or

b. Would not be supported by the application of then-existing law to those material facts.

In making an order for fees, a trial court must make findings on both a party’s entitlement to recover attorney's fees under the relevant statute, based upon substantial, competent evidence and facts to justify the award. A record on appeal will typically contain a transcript of the hearing from the court below. While it is the appellant's burden to provide an adequate record, even when this burden is not met, a fee award without adequate findings to justify the amount is reversible. In this case, the notice of appeal of a final summary judgment was not filed in a timely fashion pursuant to the Rules and was not reviewable. The trial court erred in making its order for fees as it contained no factual findings to support its making and was therefore deficient. The appeals court reversed and remanded.

Case:              Terry v. Terry
Court:            Third District Court of Appeal.
Trial Judge: Amy L. Smith.
Attorneys:     Jeffrey Begens, Benjamin T. Hodas, Michelle North Berg.
Issues:            Equitable Distribution.

Holding:         A trial court shall equitably divide assets properly subject to such an award, after considering any conduct by the parties that will affect the asset value (such as dissipation). So too will consideration be given to agreements between the parties which stipulate assets are not to be so divided. In this case, the trial court erred in: (1) equitably dividing and awarding the Former Husband’s pension despite the parties having dissipated it during the action’s pendency; (2) equitably dividing the parties’ furniture despite the parties’ having previously stipulated that such property would not be subject to equitable distribution; and (3) failing to equitably value or divide another pension asset belonging to the former husband when it was open and proper to do so.The appeals court remanded for revision to the equitable distribution.

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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 & Family Law Update for Week Ending August 30, 2015

September 1, 2015

Case:              Niekamp v. Niekamp
Court:            Second District Court of Appeal.
Trial Judge: John S. Carlin.
Attorneys:     Sam R. Assini, Matthew P. Irwin, Luis E. Insignares.
Issues:           Equitable Distribution, Time-sharing, Spousal Support, Child Support, Imputing Income, Attorney’s Fees.
Holding:         Parental Responsibility

Final judgment that provides sole parental responsibility to one party and denies contact to the other must set out for the parent who losing contact what must be done to reconnect with the children. An order that does not do so is deficient as it fails to advise the parent what is expected and prevents a successor judge from monitoring the parent's progress.

Marital Assets

When an asset is acquired during the marriage, it is presumed to be marital unless specifically established otherwise. In considering a business as a marital asset, enterprise goodwill is a distributable marital asset and personal goodwill is non-marital. When a trial court makes an equitable distribution award of a business, characterized as a marital asset, a value must be assigned to the asset.

Alimony

A twenty-two-year marriage is presumed to be long-term. This places a presumption in favor of alimony when warranted by one party's need and the other party's ability to pay. In determining an alimony award, a trial court shall consider the parties' respective physical and emotional conditions and employability.

Dissipation of Assets

When a spouse depletes marital assets during the pendency of dissolution proceedings to pay for support, living expenses and litigation expenses, it is error to include the assets in the equitable distribution scheme unless a there is a specific finding of intentional misconduct. Such a finding must be based on evidence showing that the marital funds were used for one party's own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.

In this case, the trial court erred in that:

a.     The final judgment failed to prescribe any schedule or benchmarks for re-establishing the Former Husband’s parenting of the children.

b.     It classified the Former Wife’s business as a non-marital asset, which although it depended heavily on her personal expertise and goodwill had tangible assets (bank accounts, instructional books and enterprise goodwill).

c.     It distributed a non-existent asset to the Former Husband (being money that he withdrew from retirement accounts spent on attorney's fees).

d.     It determined the Former Husband was voluntarily unemployed when there was evidence showing he was unemployed for mental health reasons.

e.     It imputed income to him in relation to child support and in its determination regarding payment of attorney’s fees.

The appeals court reversed and remanded for further proceedings.

Case:              Kyriacou v. Kyriacou
Court:            Second District Court of Appeal.
Trial Judge: John S. Carlin.
Attorneys:     Matthew S. Toll, Stephen N. McGuire, II, Robert B. Burandt.
Issues:            Equitable Distribution.

Holding: Florida Statutes prescribe terms for the distribution of marital assets. The presumption is the distribution should be equal, unless there is a justification otherwise based on the statutorily enumerated factors including the economic circumstances of the parties and any other equitable considerations. Wage earning ability is one such factor although disparate earning capacity, without more, cannot be the sole basis for unequal distribution. In this case, the trial court erred when it made an unequal equitable distribution award when the record contained no indication that it considered the statutory factors listed in doing so. Specifically, it focused on the parties’ earning ability and little else. The appeals court reversed as to equitable distribution and the valuation of certain marital assets.

Case:              Hooker v. Hooker
Court:            Fourth District Court of Appeal.
Trial Judge: Gregory M. Keyser.
Attorneys: Jane Kreusler-Walsh, Rebecca Mercier Vargas, Stephanie L. Serafin, Melinda P. Gamot, Susan G. Chopin.
Issues:           Equitable Distribution.

Holding:        Florida Statutes allow for unequal distribution of an asset when a trial court finds it is justified based on a non-exhaustive list of relevant factors including, among other things, the contributions of each spouse to the marriage; each spouse’s economic circumstances; desirability of retaining an asset; the contribution of each spouse to the acquisition and enhancement of an asset; and any other factors necessary to do equity and justice between the parties.

The statutes also require any distribution of marital assets to be supported by factual findings in the judgment based on competent substantial evidence in the record with reference to these statutory factors.

The fact that an asset is determined to be an interspousal gift and then characterized as a marital asset does not mandate that the asset be split equally if an unequal split is will create equity and justice between the parties. An interspousal gift is established by showing donative intent; delivery or possession of the gift; and surrender of dominion and control of the gift. The burden is on the party seeking to prove an interest in the property to show it was an interspousal gift on a preponderance of credible evidence. An appeals court reviews the determinations of a trial court in regards to a dissolution judgment for an abuse of discretion, and the review of the legal conclusions is de novo. When reversible error occurs with regard to valuation or distribution, the entire distribution scheme must be reversed and remanded to allow the trial court to ensure both parties receive equity and justice.

In this case, the trial court was correct in determining one property was gifted to the Former Wife. It erred, however, in determining the other property was an interspousal gift when the evidence did not show a clear and unmistakable intention on the part of the Former Husband to gift it.

With regard to the erroneous determination, there was no testimony that the Former Husband expressly stated or affirmatively acknowledged that the Former Wife had an interest in the property. The evidence only showed that the Former Wife believed that she had an interest because the family home and family business were situated on it. Specifically, the trial court erred in relying on evidence that:

a.     The Former Husband did not convey to the Former Wife that she did not have an interest in the properties;

b.     He did not contradict her belief that it was a gift; and

c.     She had made significant contributions to the property.

The trial court did not properly consider evidence that showed that the Former Wife’s name was kept off the title and the original mortgage for the property and off the corporation created by the Former Husband related to the property (formed solely in his name). The fact that he subsequently included the Former Wife’s name in the final sale of the property did not evidence donative intent. It simply showed the Former Husband ensuring the buyer of unburdened title.

As for the property that was gifted, the evidence provided sufficient donative intent to uphold the trial court’s determination. The Former Husband’s actions showed clear and unmistakable intent as the property was where the Former Wife desired to live; he told her the home was for both of them; they both contributed to furnishing the home; he provided her with keys to it; and she had unfettered access.

The appeals court reversed the amended final judgment as to the trial court’s determination that the Former Husband gifted an interest in the one property to the Former Wife and remanded for a recalculation of the entire equitable distribution.

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Florida Divorce & Family Law Update Week Ending August 23, 2015

August 26, 2015

Case:              Weaver v. Weaver
Court:            Fourth District Court of Appeal.
Trial Judge: Amy L. Smith.
Attorneys:     Paul M. Herman, Jr., Jeffrey M. Kirsch.
Issues:            Equitable Distribution.

Holding:         Florida Statutes (2013) provide that when determining equitable distribution a trial court shall consider the contribution of each spouse to the acquisition, enhancement, and production of income, or the improvement of (or the incurring of liabilities to) both the marital assets and the non-marital assets of the parties. Florida Statutes (2013) also provide that the division of marital assets shall be equal unless there is a reason for unequal distribution. In this case, the trial court erred in awarding the Former Wife an interest in the marital home, which the Former Husband acquired prior to marriage, when there was no evidence that she had invested money in the home. Nor was there evidence to show an increase or enhancement of the value of the home during the marriage. The evidence most favorable to the Former Wife showed that she and the Former Husband pooled their incomes and paid the mortgage and other household expenses from their pooled funds. She had sold her own home prior to the marriage and spent the proceeds on their wedding, honeymoon, a boat, and a motor home. The trial court also failed to make the required factual determinations to equitably distribute the proceeds from out of state properties they owned. The appeals court reversed for further proceedings as to the real property.

Case:              W.L. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: Edward H. Merrigan, Jr..
Attorneys: Antony P. Ryan, Melanie L. Casper, Paulina Forrest, Pamela Jo Bondi, Carolyn Schwarz, Patricia Murphy Propheter.
Issues:            Termination.

Holding:         Florida Statutes (2013) require trial courts ordering termination of parental rights to enter written orders which contain findings of fact and conclusions of law. In order to terminate on the grounds that a child’s life, safety, or health would be threatened by continued interaction with a parent, irrespective of the services being provided in support of the parent, a trial court must find that any provision of services would be futile or that the child would be threatened with harm nonetheless. In this case, the trial court erred in failing to recite which of the petitioned grounds it relied on in entering the final judgment; it failed to make the necessary factual findings; and it omitted key conclusions of law. The appeals court vacated the termination order and remanded.

Case: Blevins v. Blevins

Court:            Fifth District Court of Appeal.
Trial Judge: Scott C. Dupont
Attorneys:      Brian P. North, Mary Esther, Philip J. Bonamo.
Issues:            Time-sharing.

Holding:         A final divorce decree providing for the custody of a child can be materially modified only if there are facts concerning the welfare of the child that the court did not know at the time the decree was entered, or if there has been a substantial change in circumstances shown to have arisen since the decree. The petitioning parent bears an extraordinary burden to prove a substantial change in circumstances. Substantial, competent evidence of a substantial change of circumstances is required for modification. The parents’ inability to communicate does not satisfy the substantial change requirement for modification. In this case, the trial court erred in modifying because the location of the parties’ respective residences was known at the time of the final judgment. The parties’ evidence established an inability to communicate but this fails to satisfy the substantial change requirement for modification. The appeals court reversed the modification order and remanded with instructions to reinstate the equal time-sharing schedule set forth in the final judgment of dissolution

Case:              Felipe v. Rincon
Court:            Fifth District Court of Appeal.
Trial Judge: C. Jeffery Arnold.
Attorneys:     Alejandro L. Marriaga, Gisela Then Laurent.
Issues:            Procedure, Paternity, Custody, Time-sharing.

Holding:         Florida Family Law Rules of Procedure require sufficient notice to parties of final hearings. In this case, the trial court erred when it entered default judgment against the Mother despite her not being properly served with the motion and receiving insufficient notice. The trial court relied on its own certificate of service noting the wrong address for the Mother despite her having filed an updated address several weeks prior. The record does not reflect that Mother received proper service of the counter-petition, the motion for default, the order granting default, or notice of the final hearing. The appeals court reversed the default final judgment and remanded for the trial court to vacate the judicial default.

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Florida Divorce & Family Law Update for Week Ending March 29, 2015

March 31, 2015

Case:              W.W. v. D.C.F.
Court:             First District Court of Appeal.
Trial Judge: Not Stated.
Attorneys:      Randi E. Dincher, Kelley Schaeffer, Ward L. Metzger.
Issues:            Appellate Jurisdiction.

Holding:       Pursuant to recent amendments to Florida Rules of Appellate Procedure, a post-dependency order on an authorized motion that fully resolves the issues raised by the motion is reviewable as a final order. An appeals court can properly review a post-dependency final order by appeal rather than by petition for writ of certiorari.

Case:              Clark v. Clark
Court:             First District Court of Appeal.
Trial Judge: Not Stated.
Attorneys:      Michael J. Korn, David A. Garfinkel, William S. Graessle, Jonathan W. Graessle.
Issues:            Procedure.
Holding:         In order to decide whether a motion to disqualify is legally sufficient, a
determination must be made as to whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial. Adverse rulings are insufficient to show bias. In this case, the trial court did not err when it issued a supplemental final judgment discounting the credibility of the Petitioner’s witness and tracking the language of the Respondent’s proposed supplemental final judgment. Purported statements made by the trial court to the Petitioner’s witness were insufficient to show bias particularly as the trial court also noted that it was a difficult case and that one proposed order had to be selected over the other.

Case:             Wade v. Wade
Court:            Third District Court of Appeal.
Trial Judge: George A. Sarduy.
Attorneys:      Lisa Marie Macci, Evan R. Marks, Carolyn W. West.
Issues:            Parenting, Custody.

Holding:       Where the issues on appeal arise from a final post-judgment order on time-sharing and custody and pertain to whether the trial court contradicted and impermissibly modified the terms of a Final Custody Judgment (“FCJ”), then the standard of review is dual. The appeals court’s assessment of whether a trial court has modified a FCJ is a de novo review; while the trial court’s findings of fact and rulings based on the evidentiary record are reviewed under the abuse of discretion standard. Simply because parties have the resources to frequently appeal adjustments of time-sharing, it does not follow that every such adjustment warrants the comprehensive appellate review accorded a substantive post-judgment modification. Parties should rely on the parenting coordination provisions of an FCJ as they were intended to offer a path of confidentiality and non-judicial resolution for the benefit of the children and the parties. In this case, the trial court’s adjustments to certain notice provisions of the FCJ were not modifications. The procedural aspects and logistics of parenting, access and other related matters, and the consequences of non-compliance, are ordinarily within the discretion of the trial judge. The appeals court affirmed the trial court’s order on the time-sharing provisions.

Case:   Marchek v. Marchek
Court:             Second District Court of Appeal.
Trial Judge: Elisabeth Adams.
Attorneys:      Matthew P. Irwin, Sam R. Assini.
Issues:            Equitable Distribution.

Holding: A trial court’s valuation of the business income in a property distribution, and the determination of an equalizer payment, must be based on competent, substantial evidence. For the purpose of determining the amount of income that is attributable to a spouse in computing alimony, Florida Statutes (2010), defines "income" as any payment to an individual, no matter what the source, and includes wages, salary, commissions and bonuses, compensation as an independent contractor, various benefits, and dividends and interest. In calculating a party's monthly income, business expenses must be deducted from the party's gross income. A trial court can consider any source of income but it cannot hypothesize amounts or use gross income amounts. In this case, the trial court erred in determining equitable distribution and an equity payment based on income figures that were not otherwise supported by the record. The appeals court we reversed that portion of the final judgment of dissolution.

Case:              R.W. v. D.C.F.
Court:             First District Court of Appeal.
Trial Judge: Karen A. Gievers.
Attorneys:      M. Linville Atkins, Dwight O. Slater, Kelley Schaeffer.
Issues:            Termination.

Holding:       A surrender of parental rights may only be set aside if the court finds that the surrender was obtained by fraud or duress. To invoke an appeal court’s jurisdiction to review an order of termination of parental rights, a notice of appeal must be filed within 30 days of rendition of the order. In this case, the trial court erred in denying the petitioner Mother’s post-judgment motion to set aside the surrender of her parental rights. An order denying a motion for relief from judgment is an appealable non-final order. In this case the trial court did not err in denying the motion to appeal the final order of parental termination as the petition was not filed or drafted properly and in a timely fashion. Absent an appeal of the order on the motion for relief from judgment, an otherwise unpreserved issue raised in a post-judgment motion is not to be considered in the appeal of the underlying judgment. The appeals court dismissed the appeal as it sought to review the trial court’s ruling on the mother’s post-judgment motion to set aside the surrender of her parental rights, which was not prepared and filed properly. The appeals court affirmed the final judgment terminating the mother’s parental rights to the child.

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