Weekly Law Update on Florida Divorce & Child Custody Cases

Weekly summaries of decisions made by Florida Court of Appeals on actual divorce, child custody, child support and alimony cases.

Florida Divorce and Family Update for Week Ending October 2, 2016

October 5, 2016

Below are summaries of recent decisions from Florida's appellate courts on Florida divorce and family law issues. Clicking on the case name allows you to view the appellate opinion described in the analysis below. These summaries are courtesy of Bruce Law Firm, P.A., a law firm limited to representation of clients in the mediation, litigation and appeals of Florida marital and family law matters. The firm also created and maintains the family law focused appellate resources website DivorceCourtAppeals.com.

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

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

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

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

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

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

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

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

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

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

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

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

Holding: Equitable Distribution

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

Attorney’s Fees

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

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

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

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

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

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Florida Divorce and Family Law Update for 4 Weeks Ending July 17, 2016

July 19, 2016

Case:             Sherlock v. Sherlock
Court:            Fourth District Court of Appeal.
Trial Judge: F. Shields McManus.
Attorneys:      Karen O’Brien Steger, Lori I. Steger, Michael J. Mortell.
Issues:            Alimony.

Holding: A trial court’s decision on whether to award permanent alimony is reviewed for abuse of discretion. So is a court’s determination of whether certain assets should be available sources of income. Permanent periodic alimony is intended to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. The primary factors for a court to consider when awarding alimony are the respective spouses’ need and ability to pay. There is a rebuttable presumption that permanent alimony is appropriate after a long-term marriage. The criteria to be used in establishing a spouse’s need for alimony include the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties’ estates. However, the parties’ standard of living during the marriage does not control other considerations. The purpose of permanent alimony is not to divide future income to establish financial equality. A court should not require a spouse in need of alimony to deplete or invade capital assets to maintain his or her standard of living. However, in ruling on a request for alimony, a court must consider all sources of income available to either party, including income available to either party through investments of any asset held by that party. When a spouse with under-earning investments has the ability to generate additional earnings—without risk of loss or depletion of principal—but fails to do so, it is fair for a court to impute a more reasonable rate of return to the under-earning assets, comparable to a prudent use of investment capital. A trial court should not impute income from the home that a spouse occupies after the divorce.

In this case, the trial court did not abuse its discretion in denying the Former Husband’s request for permanent periodic alimony. Although the trial court should not have imputed income to the husband based on his current residence, the trial court did not abuse its discretion in imputing income to him from his real estate and financial holdings, even though those assets included non-liquid assets. The trial court properly imputed a reasonable rate of return to the Former Husband’s real estate and financial assets. While the trial court should not have imputed income based on the equity in his residence, this equity represented only a small portion of his net worth and accounted for a nominal amount of annual income that the trial court imputed to him. The trial court’s imputation of income from the equity in his current residence was a harmless error under the facts of this case. The appeals court affirmed.

Case:             Slaton v. Slaton
Court:            Second District Court of Appeal.
Trial Judge: Susan St. John.
Attorneys:      Ingrid Anderson, Thomas J. Donnelly.
Issues:            Custody.

Holding: A trial court may enter an order temporarily modifying child custody, even without notice to the opposing party, if there is evidence of a bona fide emergency situation. A trial court may not modify primary residential custody based on a parent's behavior without also identifying the steps that the parent must take to restore the original custody arrangement. In this case, the trial court did not err in granting temporary residential custody to the Father as there was evidence of domestic violence between the Mother and her new partner. This evidence was sufficient to support the trial court's finding that an emergency situation existed and its conclusion that modification of the Mother's custody of and visitation with the children was necessary. The trial court erred, however, as its order did not provide a timesharing schedule for the Mother and the children, and it did not delineate the actions required of the Mother if she wished to regain primary residential custody. Nor did it contain any support for the proposition that zero timesharing for the Mother is the appropriate result. The appeals court affirmed on temporary residential custody and reversed and remand for further proceedings.

Case:             E.M. & B.O. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: Stacey Schulman.
Attorneys:      Jeffrey B. Levy, Pamela Jo Bondi, Carolyn Schwarz, Kelley Schaeffer.
Issues:            Termination of Parental Rights.

Holding: In this case, the trial court did not err in granting the Department’s petition for termination of parental rights, based on only 2 of several grounds in the pleadings. Those grounds were that the Father was incarcerated and would be for a significant portion of the child’s minority; and continuing the parental relationship with the Father would be harmful to the minor child.

However, the judgment contained language indicating that termination was based on all the grounds alleged in the petition. The appeals court remanded for correction of the scrivener’s error.

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

Holding: In this case, the trial court did not err in denying the Father’s motions for a new trial and rehearing, despite his assertions that he was not afforded an opportunity to present his evidence. The trial court did err, however, in ordering the Father to pay arrearage in child support when neither the magistrate’s report (which the trial court approved) nor the final judgment, stated the amount in arrears. The appeals court affirmed on denial of the Father’s motions (but without prejudice to permit him to bring a new motion) and remanded for the trial court to determine the arrearage and amend the final judgment to specify the amount.

Case:             Holaway v. Holaway
Court:            Fifth District Court of Appeal.
Trial Judge: Mark J. Hill.
Attorneys:    John N. Bogdanoff, Shannon McLin Carlyle, Earle W. Peterson, Jr., Barry P. Burnette, Matthew Capstraw.
Issues:           Child Support, Equitable Distribution.

Holding: Child Support
In determining an award of child support, a trial court errs if it fails to explain the calculations used to arrive at the parties’ imputed incomes. In this case, the trial court erred when it imputed income to Husband without explaining its calculations.

Equitable Distribution

A trial court abuses its discretion when it omits marital liabilities from the equitable distribution. In this case, the trial court erred when it vallued the parties’ property as at the date of filing the petition for dissolution, but then used a different valuation date for the parties’ business interests. Further, the trial court erred when it awarded post-valuation profits from business assets to the Wife after it specifically found that income generated after valuation was passive.

The appeals court reversed as to the calculation of child support, equitable distribution, and award of post-valuation profits.

Case:             Everett v. Everett
Court:            First District Court of Appeal.
Trial Judge: Mary Polson.
Attorneys:      Curtis W. Brannon.
Issues:            Contempt.

Holding: In deciding a motion for a stay of a contempt order, a lower tribunal shall consider the likelihood of prevailing on appeal and irreparable harm to the appellant if the motion is not granted. An appeals court will review a lower tribunal’s decision on a motion to stay under the “highly deferential” abuse of discretion standard. In this case, the trial court did not err when it ruled on the Former Wife’s motion for contempt against the Former Husband for failure to pay child support without first hearing his pending petition for modification while also not making a detailed finding that he could afford the purge. It was open to the trial court to make such a ruling as it had the benefit of all the evidence before it. The appeals court affirmed.

Case:             Freiha v. Freiha
Court:            First District Court of Appeal.
Trial Judge: Charles W. Arnold, Jr., Steven M. Fahlgren.
Attorneys:     William S. Graessle, Jonathan W. Graessle, Rebecca Bowen Creed, Dale G. Westling, Sr..

Issues: Parenting, Child Support, Alimony.

Holding: In this case, the trial court erred when it ordered final dissolution of marriage in the absence of a parenting plan which included a timesharing schedule and regarding the amount of life insurance coverage which the Former Husband was ordered to maintain as it lacked a sufficient evidentiary basis (the record bore no evidence of the availability or cost of the insurance or his ability to pay that unknown cost). The appeals court reversed on the life insurance requirement and to allow the trial court to order timesharing and recalculate the child support obligation.

Case:             Dunkel v. Dunkel
Court:            Second District Court of Appeal.
Trial Judge: Catherine M. Catlin.
Attorneys:     Cynthia L. Greene, Allen Dell, Michelle Ralat Brinner, Michael L. Lundy, Mark F. Baseman.
Issues:           Equitable Distribution, Alimony.

Holding: A temporary alimony award pending the final judgment in the lower court is merged in the judgment and does not continue after the judgment. In this case, the trial court erred when it ordered the continuation of temporary alimony remain in effect until the post-dissolution equitable distribution transfers were effected. A temporary mediation agreement between the parties on point terminated upon entry of the final judgment. The appeals court reversed the award of temporary alimony and remanded.

Case:             Fischer v. Fischer
Court:            Fourth District Court of Appeal.
Trial Judge: Jeffrey Dana Gillen.
Attorneys:      John D. Boykin, Matthew S. Nugent, Adam M. Zborowski.
Issues:            Alimony.

Holding:         An involuntary dismissal may not be entered before the plaintiff has completed the presentation of his evidence. In actions involving numerous counts, dismissal of the entire case is proper only if the plaintiff has failed to establish a prima facie case as to each of the counts. In this case, the trial court erred in:

a.     involuntarily dismissing the Former Husband’s entire petition when he had not finished presenting his case-in-chief. The trial court denied the Former Husband his due process.

b.     dismissing the Former Husband's entire multi-count petition based solely on his inability to establish one ground for the relief sought (modification).

The appeals court reversed and remanded.

Case:             Pachter, Jr. v. Pachter
Court:            Fourth District Court of Appeal.
Trial Judge: Jeffrey Dana Gillen.
Attorneys:      John F. Schutz, Leonel R. Plasencia, Curt Sanchez.
Issues:            Equitable Distribution.

Holding:         In this case, the trial court in:

a.     requiring the Former Husband, by an unequal distribution of marital assets, to make a payment to the Former Wife for income taxes assessed as a result of dissipation of marital assets (fraudulent IRA withdrawals). The Former Husband paid the taxes when the withdrawals were made from the IRA account so the final judgment constitutes a “double” payment for the taxes.

b.     b. requiring him to pay certain expenses of the marital home without credit for one-half of the expenses from the sale proceeds.

The appeals court reversed: (1) the trial court’s double imposition of income tax consequences; and (2) the order requiring the Former Husband to pay all of the expenses of the marital residence pending its sale, without reimbursement for one-half of those expenses from the sale proceeds.

Case:             Smith v. Smith
Court:            Fourth District Court of Appeal.
Trial Judge: David E. French.
Attorneys:      Jennifer S. Carroll.
Issues:            Right to Marry.

Holding: The appeals court denied a motion for rehearing and rehearing en banc and granted a motion to certify a question of great public importance being: “Where the fundamental right to marry has not been removed from a ward under section 744.3215(2)(a), Florida Statutes, does the statute require the ward to obtain approval from the court prior to exercising the right to marry, without which approval the marriage is absolutely void, or does such failure render the marriage voidable, as court approval could be conferred after the marriage?” The majority and dissent disagree on the effect of a statute which restricts the fundamental right to marr

Case:             Jaeger v. Jaeger
Court:            Fourth District Court of Appeal.
Trial Judge: Krista Marx.
Attorneys:      Elizabeth J. Kates, Lisa Marie Macci, John F. Schutz.
Issues:            Equitable Distribution.

Holding: The determinations of a trial court within a dissolution judgment for abuse of discretion must be supported by competent evidence. In this case, the trial court erred in the award of equitable distribution as its determinations were not supported by competent, substantial evidence. Specifically, per the record, the parties stipulated a value for a marital asset portion of a retirement account that the trial court valued otherwise. The final judgment should have reflected the value agreed upon by the parties. The appeals court reversed for recalculation of the equitable distribution.

Case:             Potchen v. Potchen
Court:            Fifth District Court of Appeal.
Trial Judge: Jessica J. Recksiedler.
Attorneys:
Issues:            Domestic Violence Injunction.

Holding: An incarcerated party has a right to be heard in civil matters if the party has brought to the court's attention his or her desire to appear personally or telephonically. In this case, the trial court erred in failing to allow the Appellant to appear by telephone from prison. In so doing, the trial court denied him due process. The appeals court reversed and remanded.

Case:    Bass v. Bass
Court:            First District Court of Appeal.
Trial Judge: David Rimmer.
Attorneys:     Stephen A. Pitre, Trevor A. Thompson, Laura E. Keene.
Issues:            Custody, Due Process.

Holding: A court violates due process when it modifies visitation, changes primary residence, or alters child support when the pleadings do not include such issue. In this case, the trial court erred when it granted the Former Husband relief (temporary custody) not set out in the pleadings, and raised only at the start of the hearing. The appeals court reversed.

Case:             McFatter v. McFatter
Court:            First District Court of Appeal.
Trial Judge: John L. Fishel, II.
Attorneys:      Linda A. Bailey, Jerry L. Rumph, Jr., Hunter J. Hendrix, Rachel R. Seaton.
Issues:            Parenting.

Holding:        A Former Spouse cannot seek to enforce compliance on an issue resolved in a temporary order if the final judgment is silent on such a matter. In this case, the trial court erred in its interpretation on whether a specific parenting provision was incorporated into the Amended Final Judgment. Specifically, the Amended Final Judgment did not incorporate, or attach, that portion of the Temporary Order allowing for the Father to make the decisions concerning the children’s contact with his mother. The appeals court reversed.

Case:             Jackson v. Jackson
Court:            Third District Court of Appeal.
Trial Judge: Antonio Marin.
Attorneys:      Ilene F. Tuckfield, Hegel Laurent.
Issues:            Procedure.

Holding: An appeals court has the power to award a new trial where, as here, essential records have been destroyed by an official of the lower court through no fault of the appellant. In this case, the trial court’s decision was appealed by the Former Husband however, the record was unavailable as the court reporter died. A search for the court reporter’s recordings or stenographic equipment, performed by the court reporting firm and appellant’s counsel, was unavailing and the parties attempted, unsuccessfully, to reconstruct the record in accordance with Florida Rules of Appellate Procedure. The appeals court reversed the final judgment and remanded for a new trial.

Case:            A.G. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: James L. Martz.
Attorneys:      Antony P. Ryan, Richard G. Bartmon, Deborah Anne Schroth, Sara E. Goldfarb.
Issues:            Dependency.

Holding: A trial court may not grant a motion restricting the method of examining a child witness without holding an evidentiary hearing and making factual findings supported by the evidence. Factors for an appellate court to consider in reviewing a competency determination include the entire context of the child’s testimony and whether other evidence corroborates the child’s testimony. A prerequisite to the admission of child-victim hearsay is for the court to conduct an evidentiary hearing to ascertain the reliability of the out-of-court statements. In this case, the trial court erred as it granted the Department’s dependency motion based on its assertions, but not on proper evidence, that a minor child would suffer emotional or mental harm if required to testify in open court. Nor did the trial court conduct the proper test as to the competence of a minor child to give evidence. Finally, the trial court improperly admitted child-victim hearsay evidence. The appeals court reversed and vacated a disposition order and case plan and provided directions on remand.

Case:             J.N.S. v. A.M.A.
Court:            Fifth District Court of Appeal.
Trial Judge: Tonya B. Rainwater.
Attorneys:
Issues:            Child Support, Time-Sharing.

Holding: A trial court’s order establishing a parenting plan is reviewed for an abuse of discretion. Florida Statutes (2012), lists the expenses that parents may deduct from their gross income to determine their net income, including mandatory retirement payments. A child support order must make findings on a parent’s potential earning ability or address whether she or he is voluntarily underemployed. Here, the trial court’s finding on time-sharing could not be properly reviewed because no transcript was provided. The Mother appealed on the grounds that the trial court failed to state, as required by statute, that it had considered evidence of domestic violence, and the best interests of the children. The appeals court noted concern about some trial court findings but was compelled, in the absence of a transcript, to affirm on time-sharing. The trial court had also considered the statutory criteria relating to time-sharing and made findings of fact related to each factor. The trial court erred, however, in its application of the child-support guidelines as it refused to deduct the Mother’s mandatory retirement benefits from her gross income and failed to make findings regarding the Father’s employment status and potential earning ability. The appeals court affirmed on timesharing and reversed and remanded on child support.

Case:             Martin v. Martin
Court:            Fifth District Court of Appeal.
Trial Judge: John M. Alexander.
Attorneys:      Aaron M. Makofka, Valarie Linnen.
Issues:            Alimony.

Holding: A trial court may reduce or terminate an alimony award when a Former Spouse enters into a supportive relationship with an individual and resides with him or her. Florida Statutes (2015), sets out the factors a trial court shall weigh in making the determination as to whether a supportive relationship exists. These include the extent to which the obligee and the other person have held themselves out as a married couple and has supported the other, in whole or in part. In this case, the trial court erred in deciding that a supportive relationship did not exist between the Former Wife and another individual when the evidence indicated both held themselves out as a married couple and received/provided support and financial benefits to one another. The appeals court reversed and remanded.

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Florida Divorce and Family Law Update for Week Ending June 12, 2016

June 14, 2016

Case:             McWilson v. McWilson
Court:            First District Court of Appeal.
Trial Judge: Gary L. Bergosh.
Attorneys:     Stephen A. Pitre.
Issues:           Child Support, Parenting, Equitable Distribution.

Holding: Visitation travel expenses should be allocated in the same guidelines ratio as governs allocation of the other child care expenses, unless the trial court makes findings explaining why a different allocation is needed to achieve an equitable result. In this case, the trial court erred as the gross income used on the child support guidelines worksheet did not match the figures on the parties’ most recent financial affidavits and it made no findings explaining its decision which departed from the normal process. The appeal court could not determine whether the award was made in accordance with Florida statutes, and reversed and remanded.

Case:             Lopez v. Lopez
Court:            Third District Court of Appeal.
Trial Judge: David C. Miller.
Attorneys:     Geoffrey B. Marks, G. Bart Billbrough, David M. Gersten, Joseph A. Sacher, Christopher A. Noel.
Issues: Divorce.

Holding: To prevail on a petition for a writ of certiorari, a party must demonstrate that the contested order constitutes (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. As a condition precedent to invoking a district court’s certiorari jurisdiction, the petitioning party must establish that it has suffered an irreparable harm that cannot be remedied on direct appeal. In this case the trial court did not err when it found no material injury which could not be corrected on post-judgment appeal and the parties’ respective claims to immediate possession remain subject to determination. The appeals court affirmed.

Case:             A.D.A. & M.J.L. v. D.M.F.
Court:            Fourth District Court of Appeal.
Trial Judge: Howard H. Harrison.
Attorneys:     Andrew A. Harris, J. Mark Maynor.
Issues: Paternity.

Holding: Under Florida statutes when the unmarried parents a child file a voluntary acknowledgement of paternity, such acknowledgement creates a rebuttable presumption of paternity. This is subject to the right of any signatory to rescind the acknowledgement within 60 days after it was signed or the date of an administrative or judicial proceeding relating to the child, whichever is earlier. Further, if the mother and the reputed father get married, any time after the child is born, the child is deemed and held to be the child of the husband and wife. However, the presumption of paternity cannot rest on false assertions by the parents. In this case, the trial court erred when it denied a motion for paternity testing filed by a man who sought to establish himself as the biological father of a child after the Mother married a different man when the Mother had presented false affidavits to create the presumption of paternity for her current husband when both knew the other man could have been the father of the child. There was no presumption and his rights were infringed by being prevented from seeking a paternity declaration. The appeals court reversed and remanded.

Case:             Powers v. Powers
Court:            Second District Court of Appeal.
Trial Judge: Keith Meyer.
Attorneys:     Jane H. Grossman, K. Dean Kantaras.
Issues:           Attorney’s Fees.

Holding: Florida statutes (2014), govern attorneys' fee and cost awards in post dissolution enforcement proceedings. The appropriate inquiry for entitlement to fees and costs is each spouse's need for suit money versus each spouse's respective ability to pay. The court must make findings of fact sufficient to permit appellate review of its decision to award or deny a party's request for attorneys' fees and costs under statute. In this case, the circuit court erred in its denial of the Former Wife's request for attorneys' fees and costs as it found no basis upon which to award either party fees or costs as requested. The appeals court reversed and remanded.

Case:             D.A.D. v. J.S.
Court:            Second District Court of Appeal.
Trial Judge: R. Thomas Corbin.
Attorneys:     Robert L. Donald, Joseph P. Hoffman.
Issues:           Paternity.

Holding: Once a foreign judgment is domesticated in Florida, it is to be treated as an original Florida decree. An order adjudicating issues not presented by the pleadings, notice to the parties, or litigated below denies fundamental due process. In this case, the circuit court erred when it improperly modified a domesticated paternity judgment in ways that were not pleaded in the modification petition. The appeals court reversed.

Case:             Levesque v. Levesque
Court:            Second District Court of Appeal.
Trial Judge: Amy M. Williams.
Attorneys:     Christin C. Brennan, Jane H. Grossman.
Issues:            Alimony.

Holding: In this case, the trial court abused its discretion in awarding durational instead of permanent periodic alimony when the trial court found that the Former Wife was disabled and the undisputed evidence established that she was unable to return to work. The appeals court reversed.

Case:             Durst v. Durst
Court:            Fifth District Court of Appeal.
Trial Judge: Mike Murphy.
Attorneys:     Melanie M. Demps.
Issues:            Alimony.

Holding: Failure to give notice of a hearing to the opposing party, absent a true emergency, deprives the opposing party of its right to procedural due process. In this case, the trial court erred when the Former Husband was not afforded due process. Specifically, despite the lack of a hearing, the trial court entered an order granting the Wife’s motion. The failure to afford the Husband an opportunity to present evidence and be heard deprived him of his right to procedural due process. The appeals court reversed.

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Florida Divorce and Family Law Update for Week Ending June 5, 2016

June 7, 2016

Case:             Cilenti v. Cilenti
Court:            Second District Court of Appeal.
Trial Judge: John A. Schaefer.
Attorneys:      Andrew J. Rodnite, Jr., Nikie Popovich.
Issues:            Child Support, Equitable Distribution.

Holding:         Child Support

By Florida statute, child support orders shall provide for health insurance for a minor child when such insurance is reasonable in cost and accessible to the child. By presumption, health insurance is reasonable in cost if it is no more than 5% of the gross income of the parent providing coverage. An order may exceed 5% on written reasons of the court. In this case, the trial court erred when it made no findings in the final judgment explaining its deviation from the presumption.

Equitable Distribution

Nonmarital liabilities include liabilities incurred by either party prior to the marriage. In this case, the trial court erred determining that the Former Wife’s credit card account was a marital debt when, in fact, the account was closed before the parties even married.

Case:             Storey v. Storey
Court:            Fourth District Court of Appeal.
Trial Judge: Charles E. Burton.
Attorneys:      Nancy A. Hass, Sue-Ellen Kenny, Scott D. Glassman.
Issues:            Equitable Distribution.

Holding:         The provisions of a marital settlement agreement (MSA) reached by the parties, and the controlling law, must be followed. In this case, the trial court erred in awarding the Former Wife a greater monthly benefit from the pension of the Former Husband than she was entitled to under unambiguous terms of the parties’ MSA and the controlling law.

Case:             Carlson v. Carlson
Court:            Fourth District Court of Appeal.
Trial Judge: David E. French.
Attorneys:      Christopher R. Bruce, John E. Schwencke, Gary D. Weiner, Scott M. Weiss.
Issues:            Child Support, Attorney’s Fees.

Holding: Child Support

Imputing Income - Income may be imputed based on gifts to a party on sufficient evidence that the gifts have been regular, ongoing and will continue in the future. In this case, the trial court erred in relying on a magistrate’s inclusion of gifts as income to the Former Wife without sufficient evidence that they were regular or continuing.

Child Care - A trial court must rule on a party’s request for relief where the request arises in the pleadings and subsequent proceedings. Child care costs related to employment, finding work, or obtaining education to improve opportunities to work, shall be added to the basic obligation. In this case, the trial court erred in relying on the magistrate’s findings when they were silent on the Former Wife’s requests (made in the pleadings and subsequently) regarding daycare expenses. The appeals court reversed and remanded on this issues.

Attorney’s Fees

Recalculation of income requires reconsideration regarding attorney’s fees. The appeals court reversed and remanded for the trial court recalculate her income, child support, child care expenses and attorney’s fees.

Case:             Lowery v. Carney
Court:            First District Court of Appeal.
Trial Judge: Terrance R. Ketchel.
Attorneys:      Clark H. Henderson, Anna F. Foster.
Issues:            Due Process, Custody.

Holding: The decision of a trial court is presumed and an appellant bears the onus to demonstrate error. In this case, the Mother’s due process rights were not violated when her hearing notice went a wrong address because she could not meet the burden of showing error. No transcript of the hearing was available to show she what address she had provided the court and and the evidence she provided on point could not discharge the onus on her.

Case:            Serra v. Brown
Court:            Second District Court of Appeal.
Trial Judge: William H. Burgess, III.
Attorneys:      John A. Shahan, Knute J. Nathe.
Issues:            Attorney’s Fees.

Holding:         An award of attorney’s fees must be based on findings required by statute. In this case, the trial court erred in awarding attorney’s fees in the absence of statutory findings in support. The appeals court reversed and remanded.

Case:            Benevides v. Reese
Court:            Fifth District Court of Appeal.
Trial Judge: George Paulk.
Attorneys:
Issues:            Procedure, Custody.

Holding:         An appellant must to ensure the appeal record is prepared and transmitted to the appeals court. A copy of the order under review be attached to the notice of appeal. In this case, the Appellant failed to supply the record on appeal, a copy of the final judgment on appeal, or any transcript of the trial for review, which precluded a meaningful review. The appeals court denied.

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Florida Divorce & Family Law Update for Week Ending January 17, 2016

January 19, 2016

Case:              J.P. v. D.C.F.
Court:            First District Court of Appeal.
Trial Judge: Marci L. Goodman.
Attorneys:     Crystal McBee Frusciante, Dwight O. Slater.
Issues:            Termination.

Holding:   A finding that evidence is clear and convincing attracts a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evidentiary support. This standard of review is highly deferential. Prior to terminating a parent's rights under Florida statutes, several requirements must be met.

The trial court must find the children's life, safety, or health would be threatened by continued interaction with the parent, regardless of the provision of services.
The Department must show that there is no reasonable basis to believe a parent will improve and termination is in the child’s best interest.
Termination of parental rights must meet the least restrictive means test.

In this case, the trial court did not err as its findings were supported by competent, substantial evidence. A statutory ground for termination of parental rights was proven, the evidence supported the court’s finding that termination was in the child’s manifest best interest, and termination of parental rights passes the least restrictive means test. Using the “highly deferential” standard of review applied to termination of parental rights cases, the appeals court affirmed.

Case:              J.F. v. D.C.F.
Court:            Second District Court of Appeal.
Trial Judge: Scott Brownell.
Attorneys:      Patrick R. Cunningham, Pamela Jo Bondi, Meredith K. Hall, David Krupski.
Issues:            Termination.

Holding:        Florida statutes requires the trial court to find by clear and convincing evidence that at least one of the statutory grounds for termination exists. The amendment to section 39.806(1)(f), effective on July 1, 2014, which applied to this matter, provided that proof of a nexus between egregious conduct to a child and the potential harm to the child's sibling is not required. Prior to the amendment, the case law required proof of nexus, which was often provided by expert testimony. No one challenged the constitutionality of the amendment on the ground that it could not withstand the strict scrutiny required for statutes that impact a fundamental right.

In this case, the trial court did not err as there was competent, substantial evidence supporting termination as to each child on at least one of the grounds enumerated in section 39.806, Florida Statutes (2014). The appeals court affirmed, however, wrote to address the elimination of the "nexus" requirement such that trial courts may wish to take extra care in the application of this statute until any questions concerning its constitutionality have been resolved.

Case:              N.B. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge: Cindy Lederman.
Attorneys: Eugene F. Zenobi, Kevin Coyle Colbert, Karla Perkins, Kelley Schaeffer (Sanford).
Issues:            Termination.

Holding:        To terminate parental rights, the State must demonstrate by clear and convincing evidence: (1) the existence of one of the statutory grounds under Florida statutes; (2) that termination is in the best interest of the child; and (3) that termination is the least restrictive means of protecting the child from harm. The standard of review for challenges to the sufficiency of the evidence supporting a termination of parental rights is whether the trial court’s order is supported by substantial competent evidence. Facial constitutional attacks and attacks involving fundamental liberty interest, such as parental rights, may be raised for the first time on appeal. Florida statutes authorize the filing of a petition for termination of parental rights when on three or more occasions the child or another child of the parent or parents has been placed in out-of-home care and the conditions that led to the placement were caused by the parent or parents. When a statute impinges on a fundamental liberty interest, such as parenting one’s child, an appeals court must analyze the constitutionality of the statute under a strict scrutiny standard. The State must establish at least one statutory ground by clear and convincing evidence. It must also establish by clear and convincing evidence that termination is in the manifest best interest of the children and that termination is the least restrictive means of protecting the children from harm.

In this case, the trial court did not err in rendering its order as it was based on the record which contained competent evidence establishing the statutory grounds for termination exist, specifically that termination was in the manifest best interest of the children and was the least restrictive means of protecting the children from harm. The appeals court affirmed.

Case:              D.C.F. v. J.S. and S.I.
Court:            Fourth District Court of Appeal.
Trial Judge: Michael Heisey.
Attorneys:     Rosemarie Farrell, Laura E. Lawson, T. Charles Shafer, Ryan Thomas Truskoski.
Issues:            Termination.

Holding:         Termination may be ordered when:

the parent of a child is incarcerated and the period of time for which the parent is expected to be incarcerated will constitute a significant portion of the child’s minority. When determining whether the period of time is significant, the court shall consider the child’s age and the child’s need for a permanent and stable home. The period of time begins on the date that the parent enters into incarceration.
the parent of a child is incarcerated and the court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and, for this reason termination is in the best interest of the child.

When determining harm, the court shall consider the following factors:

a. The age of the child.
b. The relationship between the child and the parent.
c. The nature of the parent’s current and past provision for the child’s developmental, cognitive, psychological, and physical needs.
d. The parent’s history of criminal behavior, which may include the frequency of incarceration and the unavailability of the parent to the child due to incarceration.
e. Any other factor the court deems relevant.

In this case, the trial court erred in denying the termination of both parents when the Department proved by clear and convincing evidence that, by applying the statutorily mandated factors, continuing the parental relationship with the incarcerated father would be harmful to the child and, for this reason, termination of the father’s parental rights is in the child’s best interests. First, the court did not address the relationship between the child and the father using the statutory factors. The Department proved by clear and convincing evidence that the father and the child have no relationship. Second, the court did not address the father’s current and past provision for the child’s developmental, cognitive, psychological and physical needs. Third, regarding the father’s history of criminal behavior, the court merely noted that the father’s commission of armed burglaries and felony assault with a firearm resulting in injury was “disturbing.” The court did not address the fact that this was the father’s second conviction for armed violent offenses or how the resulting incarceration caused his prolonged unavailability to parent. Fourth, while the court mentioned the child’s age, the court did not address the child’s age when considering the harm flowing from the father’s prolonged unavailability to parent.

The appeals court reversed the denial of the termination of the Mother and the Father, respectively.

Case:              Tatum v. Triana-Tatum
Court:            Fifth District Court of Appeal.
Trial Judge: Robert M. Evans.
Attorneys:     Carlton Pierce, Oscar Gonzalez, Jr.
Issues:            Child Support, Relocation.

Holding: Retroactive child support begins to run from the date the petition for modification is filed. In this case, the trial court erred when it set as the accrual date for retroactive child support, a date prior to that on which the Father’s supplemental petition for modification was filed. The appeals court remanded for recalculation of child support arrearages.

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Florida Divorce & Family Law Update for 4 Weeks Ending October 25, 2015

October 28, 2015

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.

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