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 April 10, 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:             Schneider v. Schneider 
Court:            First District Court of Appeal.
Trial Judge:   Dan Wilensky.
Attorneys:     Lynn W. Martin.
Issues:           Contempt, Attorney’s Fees.

Holding:       A finding of contempt for unpaid debt is proper only if the debt is alimony or child support. It is an abuse of discretion to hold a person in contempt for failure to comply with a property-settlement provision of a final judgment of dissolution of marriage. In this case, the trial court erred in finding the Former Husband in contempt regarding an order to pay child support and a property settlement payment from his military retirement pay each month. Specifically, he paid the Former Wife the amount due for child support several days after it was due.  She considered the money as payment for the property settlement, and the remainder as child support. The trial court ratified her opinion and found the Former Husband in contempt for refusal to make a property settlement payment on time. The appeals court could not rule on whether error occurred regarding the award of fees due to lack of preservation or transcripts of the relevant proceedings. The appeals court reversed as to contempt but affirmed as to the award of fees.


Case:             M.D. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge:   Kenneth L. Gillespie.
Attorneys:     Katherine L. Corrigan, Pamela Jo Bondi, Carolyn Schwarz, KelleySchaeffer.
Issues:           Termination.
 

Holding:         A trial court’s decision to terminate parental rights must be based upon clear and convincing evidence supporting statutorily enumerated grounds. appellate review is limited to whether the judgment was supported by competent substantial evidence. In this case, the trial court did not err as its decision to terminate was based on competent, substantial evidence regarding statutory requirements. The trial judge found that the Father knew how to communicate with the Child in an effort to maintain a relationship, but he did not, and found the Father’s testimony not to be credible. The Father’s appeal required the appeals court reweigh the evidence, which it could not. The appeals court affirmed.


Case:             Caputo v. Caputo
Court:            Fourth District Court of Appeal.
Trial Judge:  Jeffrey Dana Gillen.
Attorneys:     Jay A. Schwartz, Colleen E. Huott.
Issues:           Contempt.

Holding:        Contempt cannot lie where the order or judgment does not specifically address the matter complained of.  An order finding entitlement to attorneys’ fees is a non-final, non-appealable order. It is acceptable to have a determination made at a subsequent hearing. In this case, the trial court did not err in dismissing the Former Wife’s attempt to hold the Former Husband in contempt for enrolling their child in daycare near his place of employment, and awarding him attorney’s fees. Contempt could not be ordered because the final judgment of dissolution did not expressly address daycare. Nor did the trial court err when it ordered the Former Husband was entitled to attorney’s fees as they were to be determined at a subsequent hearing. The appeals court affirmed.


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 & Family Law Update for 4 Weeks Ending October 25, 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:              Lalonde v. Lalonde
Court:            Fourth District Court of Appeal.
Trial Judge:   Arthur M. Birken.
Attorneys:     
Issues:            Procedure.

Holding:      Under Florida Rules of Procedure, the requiring thirty days’ notice is mandatory and applicable to final hearings as well as to jury trials. In this case, the trial court erred in proceeding with the hearing and rendering final judgment when the Former Husband did not have at least thirty days’ advance notice.  The appeals court remanded with instructions to the circuit court to set a new final hearing, giving the parties at least 30 days’ notice.


Case:              Miggins v. Miggins
Court:            Fourth District Court of Appeal.
Trial Judge:   Krista Marx.
Attorneys:     Doreen Truner Inkeles, Adam M. Zborowski.
Issues:            Equitable Distribution.

Holding:     A party seeking equitable distribution of a military Survivor Benefit Plan shall provide evidence concerning assertions as to the Plan including the cost of maintaining it and how equitable distribution or alimony would be affected. In this case, the trial court was incorrect when it found that the Former Husband’s military Survivor Benefit Plan was not marital property subject to equitable distribution. However, it was correct in its treatment of the Plan. Specifically, the Former Wife presented no evidence concerning the cost of maintaining the Plan and how equitable distribution or alimony would be affected. The appeals court reversed on the issue and remanded for the entering of a second amended final judgment containing language referring to the “existence of a supportive relationship” pursuant to Florida Statutes (2014).


Case:              Hofschneider v. Hofschneider
Court:            Second District Court of Appeal.
Trial Judge:   Richard A. Nielsen.
Attorneys:     Jeremy T. Simons.
Issues:            Contempt.

Holding:      Pre-judgment civil contempt orders are properly reviewed by certiorari. In this case, as the issue involved review of a contempt order by the trial court, the appeals court converted the matter to a petition for writ of certiorari. It was, however, declined as the Appellant / Applicant did not demonstrate suffering a material injury that could not be corrected on post-judgment appeal.


Case:              B.R. v. D.C.F.
Court:            Second District Court of Appeal.
Trial Judge:   Sonny Scaff.
Attorneys:     Donald K. Rudser, Ward L. Metzger, Dave Krupski.
Issues:            Dependency.

Holding:      An amendment or modification of an order or judgment in an immaterial, insubstantial way does not re-start the clock to file an appeal. Even substantial or material modifications in an amended judgment do not provide grounds sufficient to appeal issues adversely decided in the earlier judgment. In this case, the appeal was filed in excess of the thirty-days from the date the orders were rendered, one of which contained immaterial changes. The immaterial changes did not re-start the time for proper filing of an appeal.


Case:              J.B.-L v. D.C.F.
Court:            Second District Court of Appeal.
Trial Judge:   Suzanne Bass.
Attorneys:     Robert W. Keep, Jr., Joshua Goldsborough, Niki Guy, Ward L. Metzger, Wendie Michelle Cooper.
Issues:            Dependency.

Holding:      A trial court order finding a child dependent but withholding an adjudication of dependency is properly reviewable by the appeals court pursuant to the Florida Rules of Appellate Procedure.  In this case, the trial court did not err in adjudicating only two of seven minor children, dependent but finding all seven of them dependent. The fact that adjudication hearings were conducted on only two matters was not an error. The appeals court affirmed. 


Case:              Shah v. Shah
Court:            Third District Court of Appeal.
Trial Judge:     Mindy S. Glazer.
Attorneys:     Bryant Miller Olive, Elizabeth W. Neiberger, Clayton D. Simmons, Andrew Rier, Daniel Tibbitt.
Issues:            Process.

Holding:      Due process requires proper notice and an opportunity to be heard. In this case, the trial court erred when it noticed the hearing on the petition for dissolution of marriage as a status conference but, instead, conducted a final hearing and entered final judgment. The appeals court reversed.


Case:              De Leon v. Collazo
Court:            Third District Court of Appeal.
Trial Judge:   Leon M Firtel.
Attorneys:      David W. Macey, Lindsey M. Alter, Jessica B. Reilly.
Issues:            Permanent Injunction for Protection, Process.

Holding:      Due process serves as a vehicle to ensure fair treatment through the proper administration of justice. It requires that litigants be given proper notice and a full and fair opportunity to be heard. To be sufficient, notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must convey the required information, afford a reasonable time for those interested to make their appearance, and indicate the witnesses and the evidence expected.

In this case, the trial court erred when, at the final hearing, it permitted the Applicant, over objection, to testify to substantial and significant acts of domestic violence that were never pleaded in the petition. Nor was the Respondent put on notice that these additional acts would form a part of the allegations relied upon. This violated the Respondent’s due process rights. The appeals court vacated the permanent injunction and remanded for a new final hearing.


 

Case:              Gromet v. Jensen
Court:            Third District Court of Appeal.
Trial Judge:   Pedro P. Echarte.
Attorneys:     George R. Baise Jr., Brian C. Tackenberg, Robin Buckner, Robert F. Kohlman.
Issues:            Equitable Distribution.

Holding:      A trial court’s determination that an asset is marital or non-marital involves mixed questions of law and fact. Although an appeals court defers to the trial court’s factual findings if they are supported by competent, substantial evidence, it will review the trial court’s legal conclusions de novo.  

Non-marital assets include assets acquired separately by either party by non-interspousal gift, bequest, devise, or descent, and asset acquired in exchange for such assets. Non-marital assets may lose their non-marital character and become marital assets where they have been commingled with marital assets. This is especially true with respect to money because money is fungible, and once commingled it loses its separate character.

Florida Statutes (2014), provide that marital assets include the enhancement in value and appreciation of non-marital assets resulting from the efforts of either party during the marriage. Where a former spouse seeks to establish that marital efforts were utilized to enhance the value of the other party’s non-marital business, he or she also has the burden of proving that assertion and the value, based on competent, substantial evidence.

In this case, the trial court erred by treating the Former Husband’s accounts as marital assets subject to equitable distribution, when the accounts were entirely funded with an inheritance he received; the Former Wife failed to present competent, substantial evidence that marital funds were deposited into or commingled with any of the Former Husband’s accounts; and the evidence showed that, despite actively managing his accounts, they decreased in value.  The appeals court reversed the equitable distribution portion of the final judgment.


Case:              Russell v. Pasik
Court:            Second District Court of Appeal.
Trial Judge:   Marc B. Gilner.
Attorneys:    Paul F. Grondahl, Cristina Alonso, Jessica Zagier Wallace, Michael P. Sampson, Ashley Filimon, Elliot H. Scherker, Brigid F. Cech Samole, Jay A. Yagoda, Luis E. Insignares, Elizabeth Lynn Littrell, Paolo Annino, Brion Blackwelder, Michael J. Dale, Nancy Dowd, Shani M. King, Barbara Bennett Woodhouse.
Issues:            Time-sharing.

Holding:      To be entitled to certiorari relief, a party must demonstrate: (1) a departure from the essential requirements of the law; (2) resulting in material injury for the remainder of the case; (3) that cannot be corrected on post-judgment appeal. The second and third elements are jurisdictional and thus must be evaluated first. Typically, certiorari will not be granted from a denial of a motion to dismiss because there is not a material injury that cannot be corrected on post-judgment appeal.

A psychological parent is not recognized in law. Only natural and adoptive parents have a legal duty to support minor children. When there is no biological connection between a petitioner and a child and that nonparent is seeking to establish legal rights to the child, there is no clear constitutional interest in being a parent.

In this case, the trial court erred as it failed to conduct the proper analysis to determine standing. Further in order to prevent irreparable harm, the trial court must fully assess that issue. In denying the motion to dismiss, the trial court merely opined that a cause of action arose based on the facts set out in the petition. However, the petition showed that it was legally impossible for the Respondent to establish standing to petition the trial court for timesharing as she asserted she was a de facto or psychological parent and not a biological parent. As a cause of action does not exist in the absence of standing, the trial court departed from the essential requirements of the law by not dismissing the petition for timesharing. Additionally, the trial court improperly addressed the Applicant / Biological Parent’s constitutional privacy interest in the raising of her children, including determining with whom they are allowed to spend time. This would enable the State's interference with a constitutional right—here, the right to privacy, and an injury that cannot be corrected on post-judgment appeal. The appeals court granted the petition for certiorari.


Case:              Rosenblum v. Rosenblum
Court:            First District Court of Appeal.
Trial Judge:   W. Gregg McCaulie.
Attorneys:     Geraldine C. Hartin.
Issues:            Child Support.

Holding:      A party is entitled to have his or her motion to modify child support or alimony heard and resolved before, or simultaneously with, a hearing on another party’s later-filed motion for contempt. In this case, the trial court erred in proceeding only on a motion for contempt filed by the Former Wife, when the Former Husband had filed a prior motion for modification of child support, despite his repeatedly objecting to proceeding without first or simultaneously resolving the issues raised in his earlier-filed motion. The appeals court reversed and remanded for further proceedings on the Former Husband’s motion to modify child support.


Case:              Taylor v. Taylor
Court:            Second District Court of Appeal.
Trial Judge:   Jalal A. Harb.
Attorneys:     Jean M. Henne, Karie L. Sanoba.
Issues:            Alimony.

Holding:      Generally, trial courts may not consider future or anticipated events in making alimony awards, due to the lack of an evidentiary basis or the uncertainty surrounding such future events. Under statute, when determining alimony, a trial court considers: (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.
 

The first two considerations involve questions of fact to be supported by competent, substantial evidence. Once need and ability are determined, the court determines which type, or types, of alimony are appropriate. The court can award (1) bridge-the gap alimony; (2) rehabilitative alimony; (3) durational alimony; (4) permanent alimony or a combination. Statute limits a trial court’s discretion in this regard by making the court consider also the duration of the marriage. The trial court must demonstrate on the record or in its order that it has applied the correct law when selecting its choice of alimony. Under Florida statute, there lies a rebuttable presumption that a marriage of seventeen years or greater is a long-term marriage, for which permanent alimony may be awarded upon consideration of the statutory factors. There is no special burden of proof applicable to the award of permanent alimony in a long-term marriage, however, the court must include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties.  Durational alimony may be awarded when permanent periodic alimony is inappropriate or if there is no ongoing need for support on a permanent basis. The length of an award of durational alimony can be extended only under exceptional circumstances. There may be need to award a combination of the two.

In this case, the trial court erred in that it did not expressly find that permanent periodic alimony was inappropriate. The trial court erred further in that the judgment failed to contain the necessary findings to support durational alimony. The findings were so deficient as to hinder appellate review.  The appeals court reversed and remanded with special instructions.


Case:              Horrisberger, Jr. v. Horrisberger N/K/A Abbe
Court:            Second District Court of Appeal.
Trial Judge:   Laurel Moore Lee.
Attorneys:     Kathy C. George.
Issues:            Child Support.
 

Holding:      A trial court errs in determining child support based on a comparison of the gross income of one party to the net income of the other. In this case, the trial court erred in considering separate worksheets filed by the parties, which submitted respectively, figures which represented gross income net income. The appeals court reversed and remanded.


Case:              Cozzo v. Cozzo
Court:            Third District Court of Appeal.
Trial Judge:   Barbara Areces.
Attorneys:     Kimberly L. Boldt, Teresa Abood Hoffman, Maggie A. Berryman.
Issues:            Attorney’s Fees.

Holding:        Florida law requires a party seeking attorney’s fees to provide proof detailing the nature and extent of the services performed and expert testimony regarding the reasonableness of the fees. Where a party has provided sufficient, admissible proof of these two components, a trial court will not further mandate direct testimony from the attorney who performed the services. In this case, the trial court failed to provide a record which reveals sufficient evidence to support an award of attorney’s fees. The appeals court reversed the trial court’s order denying the Former Wife’s motion for attorney’s fees, and remanded for entry of an award of fees in accordance with the evidence presented.


Case:              Bush v. Henney
Court:            Fourth District Court of Appeal.
Trial Judge:   Laura M. Watson.
Attorneys:     Troy W. Klein.
Issues:            Domestic Injunction.

Holding:      Under Florida statute, a party to a domestic violence injunction may move at any time to modify or dissolve the injunction. No specific allegations are required. If the scenario underlying the injunction no longer exists so that the continuation of the injunction would serve no valid purpose, then the injunction should be modified or dissolved. In this case, the trial court erred in denying the Appellant’s motion to dissolve an injunction from approximately 14 years ago when he had never violated it, had never tried to contact the Appellee and he testified that he has no desire or intention of doing so. The appeals court remanded.


Case:              Malave v. Malave et al
Court:            Fifth District Court of Appeal.
Trial Judge:   Mark J. Hill.
Attorneys:     William Glenn Roy, III, Tyler J. Chasez, Nichole J. Segal, Andrew A. Harris.
Issues:            Equitable Distribution, Procedure.

Holding:       Ancillary relief is generally available in dissolution of marriage cases. However, the ancillary relief must relate to matters which are personal and proper to the divorce action itself. The common thread between them is a distinct relationship linking the parties and the subject of the litigation. A circuit court does not lack jurisdiction simply because a case is filed or assigned to the wrong division within the circuit court. All circuit court judges have the same jurisdiction within their respective circuits.  The filing of an action in the wrong division should be remedied by reassignment to the correct division as opposed to a dismissal of the action.

In this case, the family (trial) court erred as it found that it lacked jurisdiction over the divorce action because the Former Husband died before a judgment dissolving the marriage was entered and dismissed, with prejudice, the Former Wife’s ancillary petition. The parties were in the midst of divorce proceedings when the Former Husband and the parties’ children were tragically killed in a car accident. The divorce petition was abated by his death. Subsequently, the Former Wife discovered that he had allegedly made a substantial number of property and money transfers to his relatives shortly before his death. She deduced that the disposal of marital assets was intentional and that other parties, including his lawyer, had assisted in the allegedly fraudulent transfers. She moved to reopen the abated divorce case and to file an ancillary petition naming as defendants the parties whom she believed had assisted him, including his lawyer. The family court granted the motion. The parties named did not file a response. The clerk entered a default against the non-lawyer while the Former Husband’s previous lawyer filed a motion to dismiss the ancillary petition asserting that the family court lost jurisdiction over the divorce case when the husband died. The family court agreed and dismissed the ancillary petition. The appeals court reversed and found that the dismissal with prejudice was improvidently entered, and directed the circuit court to transfer the ancillary petition from its family division to its civil division. The Former Wife’s attempt to sue the Former Husband’s former lawyer for fraud in the divorce action was misplaced, as no judgment had been entered dissolving the marriage at the time of the Former Husband's death. Therefore, the divorce action ended when the Former Husband died. The Former Wife’s ancillary petition itself was not ancillary to the divorce because the Former Husband’s former lawyer was not a party to the divorce litigation. However, the family court should have transferred the matter to the civil division of the circuit court. By dismissing the action with prejudice the trial court completely denied the Former Wife the opportunity to raise her claims anywhere. The appeals court reversed the dismissal with prejudice of the ancillary petition and remanded for further proceedings in the appropriate division of the circuit court.


Case:              Wells v. Whitfield
Court:            First District Court of Appeal.
Trial Judge:   E. McRae Mathis.
Attorneys:     Seth Schwartz, Eric Lawson, Valarie Linnen.
Issues:            Child Support.

Holding:      In awarding child support, a trial court must make findings of fact based on record evidence in support. Meaningful appellate review is facilitated by such findings. In this case, while the trial court did not err (abuse of discretion) by refusing to allow the Father (Payor) to present additional evidence on rehearing, it erred when the amended final judgment did not justify the amount of the child support obligation. Specifically, the trial court properly found the Father failed to show that certain monies should be excluded from his income for child support purposes but failed to state in the amended final judgment how much of that money was part of his income for child support calculations. The appeals court could not meaningfully review the child support award to determine whether it is within the guidelines. The appeals court reversed and remanded for the trial court to make specific findings on point.


Case:              Nicolas v. Blanc
Court:            Third District Court of Appeal.
Trial Judge:   John Schlesinger.
Attorneys:      Hegel Laurent, Yolande Henry Van Dam, Barbara Green.
Issues:            Parenting, Relocation.

Holding:       In considering relocation applications, a trial court must properly consider and apply the enumerated factors under Florida Statutes (2014) to the record evidence. It must also articulate findings of fact based on such. In this case, the trial court did not err as it properly considered and applied the requisite and applicable factors under Florida Statutes (2014), and articulated findings of fact, supported by the competent substantial evidence presented. The appeals court affirmed the trial court’s order granting relocation.


Case:              Kelley v. Kelley
Court:            Fourth District Court of Appeal.
Trial Judge:   Timothy P. McCarthy.
Attorneys:     Troy William Klein, Bernice Marie Kelley.
Issues:            Equitable Distribution, Alimony, Child Support.

Holding:      Equitable Distribution

In distributing marital assets and liabilities, the presumption is an equal division, however, the court may order an unequal distribution based on factors enumerated under Florida Statutes.  Unequal distribution must be based on record evidence. In this case the trial court erred in awarding the Former Wife a greater share of the marital assets when it had already awarded her a balancing payment from the Former Husband in an effort to equalize the parties’ respective shares of the marital assets.  

Alimony

An award of alimony will usually not be reversed on appeal absent an abuse of discretion. Under Florida Statutes (2014), the trial court must be consider the list of factors set out including any other consideration necessary to do justice between the parties. Failure to do so is reversible error. In this case the trial court erred in failing to make the requisite factual findings in support of the alimony award to Former Wife. Specifically, it failed to identify or make findings of fact relative to: the standard of living established during the marriage; the contributions of each party to the marriage; the tax treatment and consequences of the alimony award; and all sources of income available to either party. Without these findings, the appeals court was unable to make a proper determination as to the appropriateness of durational alimony. The appeals court reversed and remanded.


Case:              B.L. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge:   Michael Heisey.
Attorneys:     Antony P. Ryan, Richard G. Bartmon, Karla Perkins.
Issues:            Dependency.

Holding:       An adjudication of dependency based entirely, or largely, on inadmissible hearsay, must be reversed. In this case, the trial court erred in determining dependency on the basis of hearsay allegations of domestic violence by the Father. The allegations came through the Mother’s statements as conveyed through the investigating officers. The appeals court reversed.


Case:              Hutchinson v. Hutchinson
Court:            First District Court of Appeal.
Trial Judge:   Monica J. Brasington
Attorneys:      Stephen K. Johnson, Emily A. Snider, Jonathan P. Culver.
Issues:            Alimony, Attorney’s Fees.

Holding:      A trial court’s award of attorney’s fees is governed by statute. Such awards are to ensure that both parties will have a similar ability to obtain competent legal counsel. The general standard for awarding attorney’s fees and costs is the requesting spouse’s financial need and the other spouse’s ability to pay. Awards of attorney’s fees are reviewed for an abuse of discretion. Where marital property has been equitably distributed and the parties’ incomes have been equalized through an alimony award, a trial court abuses its discretion by awarding attorney’s fees. In this case, the trial court erred in awarding attorney’s fees to the Former Wife after it had equitably distributed the marital property and further awarded her alimony, thereby equalizing the parties’ incomes. The parties were in substantially the same financial positions and equally able to pay the fees and costs. The appeals court reversed the award of attorney’s fees and costs.


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 & Family Law Update for Week Ending September 20, 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.


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 & Family Law Update for Two Weeks Ending September 13, 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:              Hahamovitch v. Hahamovitch
Court:            Florida Supreme Court.
Trial Judge:   Martin Colin
Attorneys:   Jeanne Brady, Frank Brady, Robert Sidweber, Karent Weintraub, Jane Kreusler-Walsh, Rebecca Vargas, Stephanie Serafin, Joel Weissman, and Sarah Saull.
Issues:            Prenuptial Agreements.

Holding:         In short, the Court approved of the Fourth District's prior opinion, and determined that a general waiver of all marital claims and property rights in a prenuptial agreement is sufficient to waive any interest in property created during a marriage due to marital efforts despite there not being a specific waiver of marital claims related to a spouse's earnings, assets acquired with those earnings, or the enhanced value of the other spouse's property resulting from marital labor or funds.  The decision resolves a conflict that existed between the Fourth District (no specific waiver required) and the Second and Third Districts (which required a specific waiver).


Case:              Airsman v. Airsman
Court:            Second District Court of Appeal.
Trial Judge:   Joseph G. Foster.
Attorneys:     Cynthia B. Hall.
Issues:           Change of Name.
 

Holding:         The test for changing a child's name is whether it is in the child's best interests or is necessary for the welfare of the child. A child's surname should remain unchanged absent evidence on point. The party seeking to change a child's name bears the burden of proof. Conclusory assertions are insufficient.  In this case the trial court erred as the change of surname was not supported by competent, substantial evidence that the child's best interests were served, or that the welfare of the child was at risk. The appeals court reversed and remanded.


Case:              Rutan v. Rutan
Court:            Second District Court of Appeal.
Trial Judge:   Peter Ramsberger.
Attorneys:     Matthew R. McLain, Jane H. Grossman.
Issues:            Alimony.

Holding:     A trial court may award alimony upon sufficient evidence and factual findings regarding the respective parties’ need and ability to pay. The burden to show financial need and the former spouse's ability to pay lies with the party requesting alimony. In this case, the trial court erred in awarding alimony as it failed to make findings sufficient to allow meaningful appellate review, particularly regarding the Former Husband's income. The Former Wife failed to meet her burden of proving the Former Husband's ability to pay. The appeals court reversed.


Case:              Wolfson v. Wolfson
Court:            Third District Court of Appeal.
Trial Judge:   Stanford Blake.
Attorneys:     Sandy T. Fox, Karen B. Weintraub, Robert W. Sidweber.
Issues:           Parenting, Certiorari.

Holding:       Child custody determinations in a judgment of dissolution of marriage may be varied only if a movant can prove modification is required by a substantial and material change in circumstances, and that the child’s best interest will be promoted by such a modification. Generally, both parties must be given notice and opportunity to be heard prior to any modification, unless there is an actual, demonstrated emergency situation, such as where a child is threatened with physical harm or is about to be improperly removed from the state. Even in such instances, every reasonable effort should be made to ensure both parties have an opportunity to be heard. In this case, the trial court erred as it departed from the essential requirements of law when it entered an order granting an emergency request for temporary supervised visitation without providing both parties an opportunity to be heard.  The appeals court granted a petition for certiorari with respect to the order and remanded for further proceedings.
 


Case:              Gentile v. Gentile
Court:            Fourth District Court of Appeal.
Trial Judge:   Timothy L. Bailey.
Attorneys:     Stephen H. Butter, Jason H. Haber, Caryn Goldenberg Carvo.
Issues:            Equitable Distribution.


Holding:       A trial court should adhere to the terms of a settlement agreement in making an equitable distribution of assets, including provisions as to matters for which mediation is sought. A trial court should conduct an evidentiary hearing if there is dispute. In this case, the trial court erred in granting the Former Wife’s motion and ordering certain real property (a marital asset) be divided pursuant to appraisals for mediation proceedings when the record did not show that property division was subject to mediation. The parties had a settlement agreement that may have addressed the matter and upon which they may need to rely. The appeals court reversed and remanded to determine whether the settlement agreement contemplated resolution and proper division and valuation of the property.


Case:              Corcoran v. Corcoran
Court:            Fifth District Court of Appeal.
Trial Judge:  John M. Alexander.
Attorneys:     Leonard R. Ross, Sara E. Glover, Deborah L. Greene, Andrea C. Jevic.
Issues:           Alimony, Attorney’s Fees, Equitable Distribution, Parenting.

Holding:    A trial court shall make findings of fact as to modification of alimony. When determining attorney’s fees, a trial court considers the parties’ respective financial situations. A trial court must indicate what evidence it relied on for its findings regarding shared parental responsibilities and contempt of court. After a dissolution of marriage, the parties are equally responsible for all payments necessary to maintain their ownership of the marital property until its sale, including mortgage payments, taxes, insurance and repairs.

In this case, the trial court erred as it:

a.     reduced the Former Wife’s monthly in the absence of specific findings of fact.
b.     awarded attorney’s fees in the absence of specific findings as to the parties’ financial need and ability to pay.
c.     failed to  identify the evidence it relied on in making an order regarding shared parental responsibilities and the Former Wife being contempt of court.
d.     failed to hold the Former Wife solely responsible only for repairs to the marital home or, in the alternative, to indicate an evidentiary basis to hold her responsible for all future repairs.

The appeals court reversed and remanded for reconsideration.


Case:              Bailey v. Bailey
Court:            Fourth District Court of Appeal.
Trial Judge:   Nicholas R. Lopane
Attorneys:     John E. Schwencke and Adam M. Zborowski of Nugent Zborowski & Bruce, Michael J. Alman, Jamie D. Alman.
Issues:            Time-sharing, Certiorari, Notice.
Holding:         Certiorari
Certiorari will lie if an order compels production of confidential records and requires compulsory examination pursuant to Florida Rules of Civil Procedure. The issue on certiorari review is whether the order departs from the essential requirements of law and results in material injury which cannot be adequately remedied on appeal.

Notice

Proper notice of a motion must be given to opposing parties failing which the resulting order may be reviewed.  Twenty-four hours’ notice of a hearing on a motion may be inadequate.

Evaluations and Release of Records

Motions for the compulsory production of confidential records and the appointment of a social investigator may be subject to certiorari review. Parties to such motions must be provided adequate notice. In this case, the trial court improperly ordered the appointment of a social investigator in regards to the Father, and improperly compelled him to produce confidential records and undergo a compulsory examination. The appeals court quashed these portions of the order as the Father was not provided adequate prior notice of the motion, which was filed on the same day as the hearing. Psychotherapist-patient privilege may be asserted to preclude compulsory production of certain mental health records. It would be open to the trial court to make a determination on point.

The granting or denying of an order for a psychological evaluation is a discretionary act and may be reversed only upon a conclusion that no judge could reasonably have ordered such an evaluation. Such an order may be upheld if it is based on factual findings supported by record evidence. A trial court may order a new psychiatric or psychological examination instead of than ordering disclosure of existing mental health records as this balances the court’s need to determine the parents’ mental health as it relates to the best interest of the child, and the duty maintain the psychotherapist-patient privilege. In this case, the trial court made factual findings based on the record, which put the Father’s mental condition in controversy and provided good cause to compel his evaluation.

A trial court may consider, but is not bound by, the testimony or recommendations of a social investigator. In this case, the trial court erred in tying the Father’s time-sharing with the minor children “subject to” the investigator’s recommendations.  This was an improper delegation of the court’s authority to the investigator. The appeals court quashed this portion of the order.


Case:              Vaelizadeh v. Hossaini
Court:            Fourth District Court of Appeal.
Trial Judge:   Dale C. Cohen.
Attorneys:     John J. Shahady, John M. Ross, Steven D. Miller.
Issues:            Custody, Relocation.
 

Holding:         In determining a petition for relocation, the trial court must concern itself as to whether the relocation is in the best interests of the child. An appellate court reviews relocation determinations for abuse of discretion; however, the question of whether the trial court properly applied the relocation statute is a matter of law, reviewed de novo. Child custody issues should be determined upon child’s best interests, and such issues should not be foreclosed on technical pleading defaults. Florida statutes (2014) provide that, unless the parties have entered into agreement, the parent seeking relocation must file and serve a petition to relocate. The pleadings must conform to statutory requirements including that it be signed under oath or affirmation under penalty of perjury and include a specific statement (in prescribed typographic form) set out under statute, providing notice and direction to the parent upon whom the petition is served. Procedurally, if the parent upon whom the petition has been properly served fails to respond in a timely and proper manner, it is presumed that the relocation is in the best interest of the child and that the relocation should be allowed. The trial court shall, absent good cause, enter an order specifying that the order is entered as a result of the failure to respond to the petition. Additional procedural matters are as prescribed by statute.

In this case, the trial court erred in entering the relocation judgment when good cause existed to preclude the Mother’s relocation despite the Father’s untimely response to the Mother’s petition. Good cause included that:

a.             Despite filing a late response, the Father had a pending petition to domesticate and modify an out-of-state order to seek residential custody before the Mother filed her relocation petition. 
b.             He had filed a motion contesting the petition raising allegations requiring hearing.
c.             His untimely response was not due to wilful inaction but his attorney’s unavailability while tending to an ill family member.
d.             An order should not be rendered based on defaults which do not consider the child’s best interests.
e.             The relocation judgment was inconsistent with the trial court’s oral ruling and written order from earlier that day stating that an evidentiary hearing to determine best interests would be set.

The appeals court reversed and remanded for an evidentiary hearing.


Case:              Berg v. Young
Court:            Fourth District Court of Appeal.
Trial Judge:   David E. French.
Attorneys:     Nancy W. Gregoire, Howard S. Friedman, Andrew A. Harris, Curtis L. Witters.
Issues:            Equitable Distribution, Attorney’s Fees.
 

Holding:       The passive appreciation of a non-marital asset is a marital asset and subject to division where marital funds, or the efforts of either party, contributed to the appreciation. Where a prenuptial agreement does not address the right to enhanced value of a non-marital asset, the value is subject to equitable distribution. If a separate asset is unencumbered and no marital funds are used to finance its acquisition, improvement, or maintenance, then no portion of its value should be included in the marital estate (save for improvements arising from marital labor). A final judgment may be affirmed pursuant to the tipsy coachman doctrine because the trial court reached the right result, but for the wrong reasons. A trial court’s interpretation of a prenuptial agreement is reviewed de novo, as such agreements are governed by the law of contracts. So, too, is its legal conclusion that an asset is marital or non-marital.  The standard of review of a trial court’s determination of equitable distribution is abuse of discretion.
 

Florida statutes determine the review and award of attorney’s fees in family law matters and seek to ensure that both parties will have a similar ability to obtain competent legal counsel. It can be an abuse of discretion to grant only a partial attorney’s fee award where there is a substantial disparity between the parties’ incomes. However, the trial court cannot award fees based solely on disparity of income. A trial court must make specific findings of fact, either at the hearing or in the written judgment, supporting its determination of entitlement to an award of attorney’s fees and the factors that justify the specific amount awarded. Prenuptial agreement provisions awarding attorney’s fees and costs to the prevailing party in pieces of litigation concerning the validity and enforceability such an agreement are enforceable. A trial court’s ruling on attorneys’ fees in family law actions is reviewed for an abuse of discretion.
 

In this case, although the trial court erred in its interpretation of the prenuptial agreement (in that it failed to consider the pertinent title presumption), it properly declined to award the Former Wife any interest in the Former Husband’s company. Specifically, the trial court relied on competent, substantial evidence that the Former Husband’s corporation (acquired via a bank account and moneys which, pursuant to the agreement, were non-marital) and appreciation in its value were non-marital and not subject to equitable distribution. The trial court erred as to its award of attorney’s fees as it failed to make findings of fact on point. Further, the prenuptial agreement set out that the party seeking to avoid its terms would bear all the attorney’s fees and costs incurred by the other. As the Former Wife sought, unsuccessfully, to void the agreement the Former Husband was entitled to an award of fees against her. The appeals court reversed and remanded on the issue of fees.


 Case:            Suarez v. Orta
Court:            Third District Court of Appeal.
Trial Judge:   John Schlesinger.
Attorneys:      Leonardo G. Renaud.
Issues:            Child Support.
 

Holding:         Florida courts emphasize substance over form. Generally, if a motion is improperly titled, a court should focus on its substance. Pleadings by pro se litigants should only be defined by their function. In this case, the trial court erred in declining to consider the Former Husband’s motion notwithstanding that he had intended it as a timely-filed exception to a report, pursuant to Florida Family Law Rules of Procedure (“Rules”). The motion, filed on the same day the report and recommendation was entered, was filed within the ten-day window prescribed by the Rules. The appeals court reversed and remanded with instructions for the trial court to treat his pro se motion as a timely-filed exception pursuant to the Rules.


Case:              Temares v. Temares
Court:            Third District Court of Appeal.
Trial Judge:   Rosa C. Figarola.
Attorneys:     Ronald H. Kauffman.
Issues:            Time-sharing, Certiorari.
 

Holding:         Under Florida Rules of Civil Procedure, compulsory psychological evaluation or drug testing is authorized only when the party submitting the request has good cause for the examination regarding matters in controversy. The “in controversy” and “good cause” requirements entail an affirmative showing by the movant that each condition as to which the examination is sought is genuinely in controversy and that good cause exists for ordering each particular examination. Conclusory allegations, alone, are insufficient to demonstrate either “in controversy” or “good cause” for submission to examination. A court may order testing, sua sponte, on sufficient record evidence.

In this case, the trial court erred in ordering testing in the absence of any showing by the movant (in any pleading or otherwise at the hearing) that the opposing Party’s mental condition was in controversy.  Nor did the movant establish any good cause. Finally, there was nothing in the record to support a sua sponte order requiring testing.  The appeals court (granted Petitioner’s motion for certiorari and) quashed the trial court order for testing.
 


Case:              R.T. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge:   Martin Zilber.
Attorneys:      Sanford Rockowitz, Karla Perkins, Laura E. Lawson.
Issues:            Termination.
 

Holding:         Florida statute governs termination of parental rights based on abandonment. A trial court asked to order termination shall consider relevant statutory requirements with a view to finding that termination is the least restrictive means to protect the child and is in the best interests of the child. In this case, the trial court did not err in ordering termination because it considered requisite provisions and record evidence and found that, although the Father had maintained telephone contact with the child, the record firmly showed that he was unable to care for, support, and parent the child; he had no suitable family members to care for the child; it was in the child’s best interest to be raised with her siblings, with whom she has bonded, and to achieve permanency with a pre-adoptive family that wished to adopt all four siblings. The appeals court affirmed.


Case:              D.C.F. v. N.H.
Court:            Third District Court of Appeal.
Trial Judge: Martin Zilber.
Attorneys:      Karla Perkins, Sharon Wolling.
Issues:            Dependency, Certiorari.

Holding:         Certiorari may be granted where a trial court’s actions exceed its judicial authority by encroaching on the powers of the executive branch by ordering it to take some action not permitted by law. The DCF bears the burden of demonstrating that a trial court departed from the essential requirements of law, thereby causing irreparable injury which cannot be adequately remedied on appeal after final judgment. Florida statutes (2015) authorize the amendment of a case plan by the trial court or by agreement of all parties in certain limited circumstances.

In this case, the trial court erred, and the appeals court quashed a portion of its order relieving the Father from complying with an earlier case plan. Specifically, violence in the presence of the child contradicted the claim that the Father no longer needed services and no competent, substantial evidence supported amending the case plan.


Case:              Dorworth v. Dorworth
Court:            Fifth District Court of Appeal.
Trial Judge:   George B. Turner.
Attorneys:     John N. Bogdanoff, Shannon McLin, Stephen M. Brewer.
Issues:            Alimony, Equitable Distribution.

Holding:         Equitable Distribution
The valuation of an asset or debt in connection with equitable distribution is generally reviewed for an abuse of discretion. Valuation not supported by competent substantial evidence cannot stand. Settlement agreements are governed by the rules of contract interpretation. The trial court's interpretation of a contract in a dissolution proceeding is a matter of law subject to de novo review. 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 erred, and abused its discretion, when it utilized the incorrect figure for a certain debt (a judgment resulting from a defunct land deal and which the parties agreed was a marital asset).  In its final judgment, the trial court concluded the value of the asset in the absence of any reasoning. The trial court then equitably distributed the parties’ assets and liabilities and made an associated award of lump sum alimony to the Former Wife. As the trial court erred in calculations on point and as alimony flowed, the appeals court remanded for reconsideration and recalculation.

Durational Alimony

An alimony award should not exceed a Former Spouse's need. An order awarding alimony in excess of the Recipient Spouse's needs will be reversed as an abuse of discretion, absent special circumstances. In this case, the trial court erred when it listed specific items of expense (such as student loan expenses) in the final judgment while it determined Former Wife's monthly needs. The calculations of the Former Wife's expenses and income were unclear.  The appeals court remanded for reconsideration of the amount of durational alimony to be paid based upon the Former Wife's needs and Former Husband's ability to pay.

Lump Sum Alimony

The trial court must also reconsider the entire distribution plan because each division and distribution of a marital asset or liability is interrelated in order to achieve a fair result to both parties. Similarly, the trial court should reconsider alimony awards and other orders in the final judgment that were based on the incorrect debt amount. In this case, the trial court erred in awarding Former Wife a specific amount of lump sum alimony, which was coordinated with her equitable distribution awards. The appeals court remanded for reconsideration of lump sum alimony in all the associated circumstances.


Case:              A.D., Jr. v. D.C.F.
Court:            Fifth District Court of Appeal.
Trial Judge:   Elizabeth A. Morris.
Attorneys:     Richard J. D'Amico, Ward L. Metzger, Thomas Wade Young.
Issues:            Termination, Abandonment.

Holding:         Florida statutes provide that a child is abandoned, or that abandonment occurs, when the parent or legal custodian of a child or the caregiver, while being able, has made no significant contribution to the child's care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both.

In this case, the trial court erred in determining that the Father abandoned the child when there was no clear and convincing evidence to support such a finding. While the Father made little effort to comply with the case plan until the petition for termination of parental rights was filed, following that he partially completed his required steps. DCF conceded he had substantially complied. Further, though the evidence showed he was volatile, this is not sufficient to justify the termination of parental rights. Additionally, while the Father had not provided financial support for the child, DCF had not established his ability to do so. Moreover, he had remained in contact with the child, who resided with the Father’s sister. The appeals court reversed and remanded.


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Florida Divorce & Family Law Update for 3 Weeks Ending August 16, 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.

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Case:              Stoltzfus v. Stoltzfus
Court:            Second District Court of Appeal.
Trial Judge:   Marc B. Gilner.
Attorneys:     Troy H. Myers, Jr., Mark C. Dungan, Lori M. Dorman.
Issues:            Alimony.

Holding:         Moneys from retirement accounts which are distributed to the parties are considered income for the purpose of determining alimony where the principal of the retirement account will not be invaded for the purpose of support. It does not matter whether the party has attained the age at which funds may be withdrawn without penalty. Under Florida Statutes (2013), income includes retirement benefits, pensions, dividends, and interest. In this case, the trial court erred in not considering as income interest from pension accounts distributed to the Former Wife and interest-generating equalization payments from the Former Husband. The interest earned on the equalization payments fell within the statutory definition of income and should have been considered in calculating the Former Wife's income. The amended final judgment also contained a mathematical error in the calculation of the Former Wife's need. The appeals court reversed and remanded for a redetermination and recalculation.


Case:              Garcia v. Garcia
Court:            Third District Court of Appeal.
Trial Judge:   Barbara Areces.
Attorneys:     Douglas Isenberg.
Issues:            Child support.

Holding:         Florida Rules of Civil Procedure provide that a magistrate is responsible for creating an accurate and complete record of proceedings. A trial court may not adopt or ratify a magistrate’s report if he or she fails to file a complete record of the evidence with the report, regardless of whether exceptions have been filed to that report. If a trial court has not received a complete record, all subsequent actions based on such reports and recommendations may be deemed erroneous. In this case, the trial court erred when it ratified the general magistrate’s report despite having an incomplete record of the proceedings. A transcript from the hearing during which the testimony of the Former Husband and his accountant could not be prepared as the recording was inaudible. The testimony was absent from the record provided to the trial judge. The appeals court reversed and remanded with instructions to conduct further proceedings.
 


Case:              Hall v. Hall
Court:            Fouth District Court of Appeal.
Trial Judge:   Timothy L. Bailey.
Attorneys:     Virginia R. Vetter, Susana Rice Roque, Linda M. Jaffe.
Issues:            Equitable Distribution, Marital Settlement Agreements.

Holding:         Two grounds lie for setting aside or modifying a Marriage Settlement Agreement (MSA):

1.     By establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching.

2.     By establishing the MSA makes an unfair or unreasonable provision for a former spouse, given the circumstances of the parties as shown by evidence of the parties’ relative situations (including their respective ages, health, education, and financial status).  For this, determination, the trial court must find that the agreement is disproportionate to the means of the defending spouse, shown by record evidence of his or her financial means. If the MSA is found to be unreasonable, a presumption arises that either the defending spouse concealed relevant information or the challenging spouse lacked information regarding the defending spouse’s finances when the MSA was reached. The defending spouse can rebut by showing that there was full, frank disclosure or that the challenging spouse had a general and approximate knowledge of the marital property. The test is the challenging spouse’s such knowledge at the time of the MSA and whether he or she is prejudiced by lack of information.

Refusal to allow an amendment is an abuse of the trial court’s discretion unless it clearly appears that allowing the amendment would prejudice the opposing party, the privilege to amend has been abused, or amendment would be futile.

MSA Was Valid & Enforceable

Regarding the first ground, the Former Husband did not present evidence that the Former Wife or her attorney engaged in any fraud, duress, etc during the relevant proceedings. Rather, his position is that his attorney forgot to present an alleged first (missing) page of a draft version of the MSA to the Former Wife for her to consider.

As to the second ground, the Former Husband did not present evidence as to the parties’ relative situations to allow a trial court to make a decision as to its being unreasonable. The form of the MSA accepted by the trial court contained the style of the case, a clear heading, the parties’ initials, a signature page, and addressed the parties’ financial accounts by stating that they agreed to certain aspects of distribution. As such, and since he did not provide evidence of a purported additional page, the trial court did not err by ruling that the MSA filed by Former Wife was a valid, enforceable agreement.

Permission to Amend

The trial court erred when it denied the Former Husband’s motion to amend his answer on the grounds that it had been 18 months since the Former Wife filed her petition and the case was 30 days from trial. On the facts, it is not clear that allowing Former Husband leave to amend would have prejudiced Former Wife. Nor did he abuse the privilege to amend as this was his first such request. Finally, he sought to amend to raise and address relevant issues.

The appeals court reversed and remanded with instructions to allow Former Husband to file his amended answer.


Case:              Kemp v. Kemp
Court:            First District Court of Appeal.
Trial Judge:   Daniel F. Wilensky.
Attorneys:     Seth Schwartz, Eric Lawson, Allison E. Folds.
Issues:            Equitable Distribution,  Attorney’s Fees.

Holding:         A trial court may not order an interim partial equitable distribution in the absence of a verified motion requesting same. In this case the trial court erred when, after a hearing on the Former Wife’s motion for temporary attorney’s fees (past due and prospective) issued an order finding that the Former Husband lacked the ability to pay her attorney’s fees and directed what was effectively an interim partial equitable distribution instead. The trial court lacked authority to do so as the relevant statutory requirements for such an order were not met. The trial court misapplied the law and failed to make proper findings to support its order. The appeals court reversed and remanded for reconsideration of the Former Wife’s motion for temporary attorney’s fees.


Case:              Freiha v. Freiha
Court:            First District Court of Appeal.
Trial Judge:   Charles W. Arnold.
Attorneys:     William S. Graessle, Jonathan W. Graessle, Rebecca Bowen Creed.
Issues:            Procedure.

Holding:         An appeal on a non-final Final Judgment of Dissolution of Marriage is premature. Where judgment is partial; reserves jurisdiction to expend additional judicial labor over further matters, such as non-collateral issues of child support and parental responsibility; or retains jurisdiction over integrally related issues, an appeal may be premature and improper. In this case, the appellant pursued appeal on a Final Order of Judgment that did not finally resolve integral matters. The appeal was dismissed without prejudice to the appellant to file a notice of appeal upon the rendition of a final order.


Case:              J.C. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge:   Rosa C. Figarola.
Attorneys:     Richard F. Joyce, Karla F. Perkins, Laura E. Lawson (Sanford).
Issues:            Termination, Case Plan.

Holding:         An order for termination must sufficiently articulates the trial court’s considerations and findings. However, if record evidence and the detailed considerations of the trial court support a finding of termination, the wording of the order in that regard may be viewed as harmless error. In this case, the trial court erred in rendering an order that was did not sufficiently articulate that the Mother: (i) materially breached her case plan, and (ii) would be unlikely or unable to comply substantially with the case plan prior to its expiration. However, the appeals court determined this was harmless error as record evidence, together with the trial court’s detailed consideration of the Mother’s conduct, supported such an order for termination. The appeals court affirmed.


Case:              Lopez v. Lopez
Court:            Fourth District Court of Appeal.
Trial Judge:   Arthur M. Birken, Merrilee Ehrlich.
Attorneys:     Venol C. Adams, Susan R. Brown.
Issues:            Custody, Time-sharing.

Holding:         Orders determining the rights or obligations of a party regarding child custody or time-sharing under a parenting plan can be non-final orders. A timely motion for rehearing will suspend the rendition of a final order until the order disposing of the motion for rehearing is entered. However, a motion for rehearing does not suspend the rendition of a non-final order. Notice must be timely. In this case, the appellant (Father) appealed an order for custody, visitation and proposing a time-sharing schedule, which was conditioned on the successful outcome of reunification therapy. This was a non-final order. His notice of appeal was not filed within the procedural timelines (in this case, within thirty days) after the non-final order was rendered. The appeals court was required to dismiss for lack of jurisdiction.


Case:              Whissell v. Whissell
Court:            Fourth District Court of Appeal.
Trial Judge:   Jeffrey Dana Gillen.
Attorneys:     Karen J. Haas, Jonathan S. Root.
Issues:            Contempt, Procedure.

Holding:         Where an appellant has disobeyed an order of the trial court, the appellate court may, in its discretion, either entertain or dismiss an appeal. However, where a dismissal is ordered it is mandatory that the non-compliant appellant must be given a period of grace, prior to the effective date of the dismissal, in which to comply with the order(s) at issue.

In this case, the appellant repeatedly refused to comply with the trial court’s orders regarding temporary support and discovery, resulting in four findings of contempt and three writs of bodily attachment. The appellant (Former Husband) was incarcerated for such conduct and was released only after he made some payment on arrearages and promised the trial court future compliance, which he ultimately breached. The appeals court ordered the appeal be dismissed unless he established substantial compliance with the extant orders within 30 days of the appeal court decision. Jurisdiction was relinquished to the trial court for 30 days to determine the appellant’s compliance and provide a status report.


Case:              Chianese v. Brady
Court:            Fourth District Court of Appeal.
Trial Judge:   Timothy Bailey.
Attorneys:     Nancy A. Hass, Cynthia L. Greene.
Issues:            Attorney’s Fees.

Holding:          The award of attorney’s fees is premised on the parties’ respective need and ability to pay. Notwithstanding, the trial court must also determine the reasonableness of the fees before ordering a party to pay fees. In this case, the trial court did not err in denying the Mother further attorney’s fees. The trial court determined that the case was “out of control”, the Mother had failed to prove the reasonableness of the fees requested, and the Father has already paid her temporary attorney’s fees. Specifically, it had previously awarded the Mother $30,000.00 for temporary fees, then denied a subsequent request for more, which denial was affirmed on appeal. She then filed an additional (third) motion for temporary attorney’s fees on the grounds that further substantial financial discovery was required as the Father was objecting and new and novel theories to obtain an increase in child support were being advanced. The appeals court affirmed the denial of additional fees.


Case:              Hutchinson v. Hutchinson
Court:            First District Court of Appeal.
Trial Judge:   Monica J. Brasington.
Attorneys:     Stephen K. Johnson, Emily A. Snider, Jonathan P. Culver.
Issues:            Alimony, Attorney’s Fees.

Holding:         An award of attorney’s fees is reviewed for an abuse of discretion. Under Florida Statute, such awards are to ensure that both parties have a similar ability to obtain competent legal counsel. The general consideration is the requesting spouse’s financial need and the other spouse’s ability to pay. Where the parties are equally able to pay attorney’s fees, the trial court abuses its discretion by requiring one spouse to pay the other’s fees. Where marital property has been equitably distributed and alimony is awarded such that the parties’ incomes have been equalized, a trial court abuses its discretion by awarding attorney’s fees. In this case, the trial court erred in that it awarded the Former Wife attorney’s fees after it had rendered final judgment by which equitable distribution and alimony left the parties in substantially the same financial position. The appeal court reversed the award of attorney’s fees and costs.


Case:              Earl v. Earl
Court:            Fourth District Court of Appeal.
Trial Judge:   Thomas H. Barkdull, III.
Attorneys:     Jane Kreusler-Walsh, Stephanie L. Serafin, Troy William Klein.
Issues:            Alimony, Procedure.

Holding:         The written findings of a trial court must conform with the oral pronouncement.  In this case, the trial court erred in failing to provide that the Former Husband obtain and maintain life insurance in the (written) final judgment of dissolution despite having made such a determination in the oral pronouncement. The appeals court reversed and remanded to allow the trial court to include the Former Husband’s requirement to maintain life insurance.


Case:              Somasca v. Somasca
Court:            Second District Court of Appeal.
Trial Judge:   John S. Carlin.
Attorneys:    J P. Brandon Perkins, Kristen D. Perkins, Brett C. Powell, Alexander Brockmeyer, Katheryn E. Smith.
Issues:            Equitable Distribution.

Holding:         When marital assets are used during the marriage to reduce the mortgage on non-marital property, the increase in equity on the property is a marital asset subject to equitable distribution. The increase in equity is not to be confused with the concept of the appreciation in the overall value of the asset. The enhancement in equity is captured under Florida Statute, which holds that marital assets and liabilities include, among other things, the enhancement in value and appreciation of non-marital assets resulting either from the efforts of either party during the marriage or from the  contribution to or expenditure thereon of marital funds or other forms of marital assets, or both. 

In this case, the trial court erred in its treatment of the reduction in the mortgage indebtedness on a building the Former Husband purchased prior to the marriage, which had depreciated in value (a non-marital asset). The parties used marital funds to reduce the mortgage on the building, which resulted in the Former Husband obtaining enhanced equity in the building despite the building depreciating in value during the parties’ marriage. The trial court erred in failing to give the Former Wife a credit for the use of marital funds to pay down the mortgage. The appeals court reversed the equitable distribution and remanded for correction. 


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 & Family Law Update for Week Ending March 29, 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:              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. 


 

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.