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 Law Update for Week Ending April 24, 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:              Lathrop v. Lathrop n/k/a Posey
Court:            Second District Court of Appeal.
Trial Judge:  John A. Schaefer.
Attorneys:     Dorothy F. Easley, Allison M. Perry.
Issues:            Alimony.
Holding:        In the absence of special circumstances, a Former Spouse cannot be required to maintain life insurance for the purpose of securing an alimony obligation. A final judgment of dissolution must set forth sufficient findings of special circumstances to support a requirement for life insurance. In this case, the trial court erred in requiring the Former Husband to maintain a life insurance policy to secure the payment of permanent alimony in the absence of any special circumstances to justify the life insurance requirement. The appeals court reversed. 


Case:              Thomas-Nance v. Nance
Court:            Second District Court of Appeal.
Trial Judge:   Martha J. Cook.
Attorneys:      Deborah Marks.
Issues:            Alimony.
Holding:         To deprive a party of the majority of the assets of the marriage for the rest of his or her life is an abuse of discretion. The sentimental interest of one party in marital property cannot take priority over financial fairness to the other. In this case, the trial court erred when it ordered that the Former Husband to pay the Former Wife her interest in the marital home at a monthly rate which would require her to wait more than 20 years to receive her share of the marital assets. The payment plan was patently unreasonable. The appeals court revered and remanded. 


Case:              B.J. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge:   Maria Sampedro-Iglesia.
Attorneys:      Eugene F. Zenobi, Kevin Coyle Colbert, Karla Perkins, Laura J. Lee (Sandford).
Issues:            Dependency.
Holding:    An appellate court reviews an adjudication of dependency for an abuse of discretion, and will uphold the determination if the trial court applied the correct law and its ruling is supported by competent, substantial evidence. The parent's harmful behavior must be a present threat to the child, based on competent, substantial evidence that the child was either abandoned, abused, or neglected, or that the risk of abandonment, abuse or neglect is imminent.  In this case, the trial court erred in ordering dependency in the absence of competent substantial evidence of imminent prospective abuse, abandonment, or neglect. The appeals court reversed and remanded.


Case:              Vaught v. Vaught
Court:            Fourth District Court of Appeal.
Trial Judge:   Lisa S. Small.
Attorneys:     Andrew David Stine, Manuel Farach.
Issues:           Domestic Violence Injunction.

Holding:         A party defending against a claim is entitled to due process, including the right to proper and adequate notice of the allegations which form the basis for the relief sought. Under Florida Statutes (2014) a Respondent to a petition for a domestic violence injunction shall be personally served with a copy of the petition. In this case, the trial court erred in ordering a domestic violence injunction when certain new allegations were raised for the first time in a supplemental affidavit and not at the hearing. The trial court further erred in denying the Respondent’s motion for continuance where the notice of the final hearing on the new and supplemental allegations was provided only a few business days before the hearing. The appeals court reversed the final judgment of injunction.


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 April 17, 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:              Nolan v. Nolan
Court:            First District Court of Appeal.
Trial Judge:   E. McRae Mathis.
Attorneys:     Gary Baker, Barry L. Zisser, Corrine A. Bylund.
Issues:           Alimony, Equitable Distribution, Attorney’s Fees.

Holding:         Equitable Distribution

The reversal and remand of the equitable distribution portion of the final judgment necessitates reversal and remand of the alimony and attorney’s fees portions of the final judgment as well. As such, other aspects of the final judgment required reversal and remand.

Alimony

Florida Statutes (2015), directs the trial court to first make a specific factual determination as to whether either party has an actual need for alimony and whether the other party has the ability to pay. If the trial court so determines, it must then consider all of the relevant factors in section 61.08(2)(a)-(j), Florida Statutes (2015). The parties here were married for 33 years, which is considered a long-term marriage which raised a rebuttal presumption of entitlement to permanent alimony. In this case, the trial court erred as the alimony award was not adequately supported by the evidence or the findings in the final judgment. While Florida Statutes (2015), directs the trial court to consider all sources of income available to either party, (including overtime and bonuses) it simultaneously recognized that a seven-day work week is not reasonable. The trial court erred in calculating the alimony award based upon the husband’s income that was unsustainable and that was also shown, both by the evidence and basic notions of reasonableness, to be no longer available to him.

Attorney’s Fees

A trial court abuses its discretion in awarding attorney’s fees if the equal distribution of the marital property has been achieved and the trial court equalized incomes through its alimony awards. Florida Statutes (2015), allows the trial court to order a party to pay a reasonable amount of attorney’s fees after considering the financial resources of both parties.  

In this case, the trial court erred as, it awarded attorney’s fees when the final judgment placed the Former Wife in a substantially equal position as the Former Husband. The appeals court remanded.  


Case:              Bielling v. Bielling
Court:            First District Court of Appeal.
Trial Judge:   W. Gregg McCaulie.
Attorneys:     Christopher T. Wilson.
Issues:           Child Support, Time Sharing, Parenting.

Holding:         Due process requires that a party be given the opportunity to be heard and to testify and call witnesses on his or her behalf. The denial of this right is fundamental error. Denial of due process is valid basis for disqualification of a trial judge but an appellate court requires an order at issue properly before it to review. In this case, the trial court erred as it entered final judgment without notice to the parties, while the hearing was ongoing. The appeals court reversed but as issue of disqualification was not properly before it, could not address it. 


Case:              B.G. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge:   Kirk C. Volker.
Attorneys:     Thomas Montgomery, Meredith K. Hall, Bradenton, Sara E. Goldfarb.
Issues:            Dependency.

Holding:         A court cannot relinquish jurisdiction to circumvent The Interstate Compact on the Placement of Children (“ICPC”). In this case, the trial court erred in relinquishing jurisdiction of a matter regarding dependency in Florida (where the Mother had custody pursuant to a Domestic Relations Order) to Texas (where the Father resided and had obtained a Shelter Order). Specifically, it: a) found that the Child was permanently placed with the Father by virtue of the Shelter Order, which did not alter the Father’s status as the noncustodial parent under the prior the Mother’s Domestic Relations order; b) tried to circumvent the ICPC; and c) relinquished jurisdiction over the Child in the middle of a dependency case after removing her from the Mother who had custody under a prior court order. The appeals court vacated and remanded.


Case:              S.M. v. D.C.F.
Court:            Fifth District Court of Appeal.
Trial Judge:   Michelle T. Morley.
Attorneys:     Summer N. Boyd, Deborah A. Schroth, Christopher S. Mulligan, WendieMichelle Cooper.
Issues:             Termination.

Holding:         An order for termination must be founded on compelling, substantive evidence and proper application of such evidence to the relevant statutory provisions. In this case, the trial court did not err when it ordered termination of the Father’s parental rights as the order. There were multiple statutory grounds properly found by the trial court. The appeals court affirmed but remanded for clarification of the order on entry.


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 July 26, 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:              Tucker v. Tucker
Court:            Fourth District Court of Appeal.
Trial Judge:   Merrilee Ehrlich.
Attorneys:     Theresa Yuricic.
Issues:            Equitable Distribution, Alimony, Contempt.

Holding:         A trial court’s property valuation must be supported by competent, substantial evidence. By entering the final order before a party has had an opportunity to be heard, a trial court deprives him or her of the due process guaranteed by the Florida Constitution. Facts are not established for consideration by the trial court, or by appellate review, when attorneys make representations in their arguments before the trial court. Same does not constitute evidence. In setting the value of assets, a trial court must base its decision on proper evidence and provide findings as to the valuation. In this case the trial court erred as its stock valuation for an equitable distribution was not supported by competent, substantial evidence because of three errors. The trial court erred in determining the value of the stock:

1.   before the Former Wife finished presenting her evidence;
2.  without hearing the Former Husband’s evidence, instead, relying on his attorney’s unsworn statement;
3.  by making its own assessment, without providing a factual explanation.

The appeals court reversed and remanded for the court to resume and complete the evidentiary hearing.


Case:              D.W.Q. v. A.B.
Court:            Fifth District Court of Appeal.
Trial Judge:   John M. Alexander.
Attorneys:     Robert L. McLeod II, Leslie H. Morton, William S. Graessle, Jonathan W. Graessle, John L. Whiteman, J. Stephen Alexander.
Issues:            Termination, Procedure.

Holding:         It is a denial of procedural due process rights of notice and  fair hearing to terminate parental rights on a ground not pleaded. Adequate notice and meaningful hearing are required before a trial court can properly order the termination of substantive rights. Additionally, a trial court's written order must establish that it considered and evaluated each of the relevant statutory factors in reaching its decision as to the manifest best interests of the child. Finally, a trial court must consider all the evidence admitted at trial before rendering its decision.

In this case, the trial court erred as it terminated the Father’s parental rights on a ground not alleged in the Mother’s petition. The petition did not allege termination for egregious conduct under the relevant provisions of Florida statute, (it simply alleged that termination was warranted under other statutory provisions.) Termination for egregious conduct was not tried by consent because it was not mentioned in opening or during the presentation of Mother's evidence at trial. Further, the trial court's order of termination was deficient in that it failed to include findings for the each relevant statutory factor regarding the child's manifest best interests. Finally, the trial court erred in that it did not, ostensibly, review all evidence before it prior to making the order. The appeals court reversed and remanded for the trial court to reconsider its ruling after reviewing all admitted evidence.


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 2 Weeks Ending July 5, 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:             Smith v. Smith
Court:            Second District Court of Appeal.
Trial Judge:  Gilbert A. Smith, Jr., Diana L. Moreland.
Attorneys:     Edward B. Sobel, Angela D. Flaherty.
Issues:           Equitable Distribution, Attorney’s Fees. 
Holding:         Equitable Distribution

An appeals court reviews de novo a trial court's determination of whether an asset is marital or non-marital. Where parties did not enter into marital settlement agreement, the applicable date for determining whether assets and liabilities are classified as marital or non-marital is the date of the filing of the petition for dissolution of marriage. Assets and liabilities not in existence on that date should not be classified as marital.

In this case the trial court erred when it included as marital assets in the equitable distribution scheme both a vehicle, which was owned by the Former Husband at the time the petition was filed but sold during the pendency of the divorce, and a second vehicle, which was purchased by him after the date of filing but prior to the final judgment. The appeals court concluded that it was error to include the second vehicle in the equitable distribution scheme.  The appeals court reverse and directed the trial court to strike the second vehicle from the equitable distribution scheme and reduce the equalizing payment owed to the Former Wife accordingly. 

Attorney’s Fees

An appeals court does not have jurisdiction to review attorney’s fees if the trial court’s ruling only addresses entitlement but does not set an amount. In this case, the trial court's ruling on attorney's fees and costs only addressed the relative position of the parties and entitlement but failed to set an amount. As a result, the appeals court lacked jurisdiction to review.


Case:             M.M. v. D.C.F.S
Court:            Third District Court of Appeal.
Trial Judge:   Rosa C. Figarola.
Attorneys:     Eugene F. Zenobi, Kevin Coyle Colbert, Cathi Gordon Graham, Angela D. Flaherty, Karla Perkins.
Issues:           Procedure, Dependency. 
Holding:         Procedure

Any party can request termination of agency supervision or the jurisdiction of the court by a written motion or in a written report to the court. In this case, the trial court did not err in granting the order for cessation of supervision of the dependent children by the DCF despite being ordered without a motion. Here, the Father argued the order denied him due process because departmental supervision was terminated without a motion. In fact, the DCF requested termination of supervision in a Judicial Review and Social Study Report filed with the trial court, the receipt of which was acknowledge by the Father’s attorney prior to the Judicial Review Hearing. No challenge of the request for termination of supervision was raised. The appeals court denied the petition insofar as it was determined there was no departure from the essential requirements of law and due process as the Father received notice via the filed report.

Dependency/Visitation

Florida Statutes affords a parent the unqualified ability to return to the dependency court to seek modification or elimination of any court ordered restrictions on his or her visitation rights.  If a parent who has not had his or her parental rights terminated makes a motion for reunification or increased contact with the child, the court shall hold a hearing. Notwithstanding that the wishes of the dependent children, who may be at or near their teenage years, may, practically, affect a parent’s future contacts and relationship with them, the dependency court has a non-delegable duty to consider any motion for modification or for increased contact filed by a parent in the future.  In this case, the trial court erred when it departed from the essential requirements of law by restricting decisions concerning the Father’s future contact with his children solely to its discretion. The appeals court reversed that portion of the order which limited the Father’s ability to seek contact with his children in the future.


Case:             Elias v. Elias
Court:            Fourth District Court of Appeal.
Trial Judge:  David E. French.
Attorneys:     Howard M. Rudolph, Caryn A. Stevens, Joel M. Weissman.
Issues:            Child Support
Holding:          

Florida Statutes present Guidelines as the starting point for determining child support orders (both temporary and final). Awards of child support shall be based on the application of these Guidelines. After calculating a Guideline amount based on each parent’s net monthly income and the children’s need for support, the trial court may deviate from the Guideline amount based on a variety of factors, however, child support pursuant to the Guidelines must be determined before the trial court deviates.

In this case, the trial court erred in failing to apply the Guidelines despite the Former Husband’s objections. Specifically, it erred in determining that neither party needed to pay child support; in concluding that the Former Wife’s annual income of over $1 million allowed her to provide for most of the children’s needs by direct payments to vendors and providers, as she volunteered to do; and by treating expenditures for the three minor children made by the Former Husband (who had fifty-percent time-sharing) as largely incidental. The appeals court reversed and remanded with directions to the trial court to follow the statutory procedure


Case:             Boyd v. Boyd
Court:            Fourth District Court of Appeal.
Trial Judge:  Renee Goldenberg.
Attorneys:     Robert D. Burgs, Catherine L. Roselli.
Issues:            Child Support. 
Holding:        

A trial court’s decision to accept or reject a magistrate’s conclusions is generally reviewed for an abuse of discretion. A magistrate’s findings are subject to being set aside by the trial court when they are clearly erroneous or the magistrate misconceived the legal effect of the evidence. In this case, the trial court erred in approving the general magistrate’s report and recommendation where the evidence showed the magistrate was expected, but failed, to set an arrearage amount (and there was sufficient evidence available to do so).  The appeals court reversed and remanded for the trial court to resolve the issue of arrearages.


Case:             Suleiman v. Yunis
Court:            Fifth District Court of Appeal.
Trial Judge:  Alan S. Apte.
Attorneys:     Adam H. Sudbury.
Issues:           Time-Sharing, Procedure.
Holding:

Pursuant to the Florida Rules of Appellate Procedure, the appeals court has jurisdiction to address matters of denials of due process. 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. Courts reverse those temporary custody orders which are entered without notice; or with insufficient notice; or with insufficient opportunity to be heard. In order to prevail on a request for a temporary modification of custody, the moving party must meet the burden of proving that (1) a substantial change in the condition of one or both of the parties has occurred, and (2) the best interests of the child will be promoted by the change although the entry of an emergency ex parte order temporarily changing custody might be warranted under certain circumstances, such as where a child is threatened with physical harm or is about to be improperly removed from the state.

In this case, the trial court erred insofar as it denied, at the hearing on Former Wife’s motion to vacate, her requested relief notwithstanding that she presented sufficient and cogent evidence on point; the Former Husband failed to provide sufficient evidence in support of the ex parte order; a substantial change of circumstances had occurred; and that the best interests of the children would be promoted by modifying the timesharing schedule. The lower court abused its discretion in its failure to properly resolve the issue given the lack of evidence in support of the order it issued. The appeals court reversed and vacated the orders.


Case:             Richeson v. Richeson
Court:            Fifth District Court of Appeal.
Trial Judge:   Sally D.M. Kest.
Attorneys:     Jeffrey A. Conner, Frank J. Bankowitz.
Issues:            Equitable Distribution. 
Holding:         Partitioning

A trial court has no authority to partition jointly-held property in the absence of the parties' agreement or a specific pleading requesting partition. In this case, the trial court erred in ordering the sale of certain real property in the absence of any pleading for partition of the property. The appeals court reversed the portion of the trial court's order directing partition and directed the reinstatement of the equitable distribution scheme set forth in the original final judgment.

Credit for Moneys Paid During Pendency

Claims for credit on moneys paid on assets during pendency must be supported by competent and sufficient evidence. In this case, the trial court did not err when it denied to award the Former Husband credit for moneys he allegedly paid to maintain joint investments during pendency. At trial, the Former Husband's only evidence with regard to his claim was a summary statement listing numerous deposits he made to an account maintained for management of the parties' investment properties. However, he presented no evidence as to the source of the funds, including whether any of the funds derived from rental income on those properties. The trial court recognized this deficiency and directed him to provide supplemental documentation, but he failed to do so. The appeals court affirmed this portion of the order.


Case:             Sowell v. McConnell
Court:            Fifth District Court of Appeal.
Trial Judge:   S. Sue Robbins.
Attorneys:     Christina D'Amato-Miller, Mark D. Shelnutt, Rebecca A. Guthrie.
Issues:            Child Support.   
Holding:        

Florida Statutes (2013) require parties to pay the uncovered medical expenses of a child according to their percentage share of child support. In this case, the trial court erred by failing to require the Former Husband to reimburse the Former Wife for a portion of the minor children's medical expenses incurred during the parties' separation. Although the Former Husband asserts that the Former Wife did not present any evidence regarding the medical bills (including the dates of medical service, nature, necessity, or reasonableness of those bills) the bills were admitted into evidence during trial and the Former Husband voiced no objections when the Former Wife testified as to amounts. As such, the Former Wife was entitled to receive partial reimbursement for the medical bills she introduced into evidence. The appeals court reversed and remanded for the trial court to calculate and award her  portion of the medical bills she paid.


Case:             Stantchev v. Stantcheva
Court:            Fifth District Court of Appeal.
Trial Judge:   Jonathan D. Ohlman.
Attorneys:     Jonathan P. Culver, Robert H. Mclean.
Issues:            Equitable Distribution, Attorney’s Fees. 
Holding:         Non-Marital Assets

Non-marital assets are excluded from equitable distribution. In this case, the trial court erred in making a distribution scheme which did included a particular account as a marital asset when it should have been excluded as it belonged to the Former Husband before the parties were married. The appeals court remanded and directed the trial court to revise the distribution scheme accordingly.

Valuation of Assets

The date for determining value of marital assets is the date or dates as the judge determines is just and equitable under the circumstances. In this case, the trial court erred in valuing an amount of money the Former Husband transferred to a Hungarian bank weeks prior to the Former Wife initiating divorce proceedings as at the date of the transfer rather than the date it was converted back (at a lower rate of exchange resulting in a substantial loss in value). The trial court should have ordered both parties bear an equal share of the resultant loss in value of the account rather than have it lie with the Former Husband (particularly as the Former Husband did not know she intended to commence proceedings). Note that the appeals court found that the trial court was properly within its discretion in assessing the value of such moneys but the error lay in the date the trial court applied to value the asset. The appeals court directed that the loss resulting from the currency exchange be considered on remand.

Attorney’s Fees

In considering equitable distribution, the trial court may consider any amounts paid by a Former Spouse to his or her attorney which are sourced from marital assets and taken and paid in advance of the commencement of proceedings.  In this case, the trial court erred in ordering the Former Husband to pay one-half of the Former Wife’s attorney’s fees when she used marital funds for the down payment for her attorney’s fees while the parties were still living together. After they separated, the Former Husband commenced paying temporary alimony which was specifically designed to include Former Wife’s fees. Given the subsequent equitable distribution of assets, each party had the ability to pay his or her own fees and the trial court was directed to reconsider the matter on remand. 


Case:             Banks v. Banks
Court:            Second District Court of Appeal.
Trial Judge:   Tracy Sheehan.
Attorneys:      E. Jane Brehany, Allison M. Perry.
Issues:            Alimony, Equitable Distribution. 
Holding:         Alimony

An appellant must provide, for the record, a statement of the evidence prepared in accordance with Florida Rules of Appellate Procedure. When the appellant fails to provide this court with a record that is sufficient to evaluate the appellant's contentions of error, the appeals court must presume that the trial court's decision is correct.  However, the absence of a transcript and a statement of the evidence do not preclude reversal where an error of law is apparent on the face of the judgment. In such cases, the appeals court must limit consideration of the arguments on appeal to errors appearing on the face of the amended final judgment. A trial court can award permanent alimony in a marriage of moderate duration if such an award is based upon clear and convincing evidence after consideration of the factors set forth in relevant statutory provisions. Permanent alimony may be awarded following a marriage of long duration if such an award is appropriate upon consideration of the factors set forth in the relevant statutory provisions, however there is no requirement that such an award meet the clear and convincing standard of proof.

In this case, the trial court erred in failing to award the Former Wife in a long term (33 year) marriage permanent alimony on the basis that she had failed to meet the clear and convincing standard of proof. As this was a long term marriage, the trial court ought to have simply assessed the evidence based on the relevant statutory factors. The appeals court reversed the amended final judgment regarding the denial of the Former Wife's claim for an award of permanent periodic alimony and remanded for reconsideration with directions the trial court on remand should consider making an award of at least a nominal amount of permanent periodic alimony.

Former Husband’s Military Retirement Pay

Language in final judgments needs to be specific, unambiguous and allow for intended changes in the amount of such awards tied to cost of living increases or other such considerations. In this case, the trial court erred in ordering an amount, and an indexed award, of the Former Husband’s military pension payable to the Former Wife, such amount being expressed as both a percentage and specific dollar figure, thereby creating ambiguity as the dollar amount could change as certain specific adjustments are based on the order are made. The appeals court directed, on remand, that the wording be amended.


Case:             Dottaviano v. Dottaviano
Court:            Fifth District Court of Appeal.
Trial Judge:   Clyde E. Wolfe.
Attorneys:      Daniel A. Bushell, Shachar D. Spiegel, Stefani K. Nolan, Brian P. North, David Merritt.
Issues:            Child Support, Equitable Distribution, Alimony. 
Holding:         Imputing Income

Florida Statutes provide that monthly income shall be imputed to an unemployed or underemployed parent if such unemployment or underemployment is found by the court to be voluntary on that parent’s part. A trial court must employ a two-step analysis when deciding whether to impute income to a former spouse. Firstly, the trial court must determine that termination of employment was voluntary. Secondly, the trial court must determine whether the individual’s subsequent unemployment or underemployment resulted from the  pursuit of his or her own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received. Further, the former spouse claiming that income should be imputed to the unemployed or underemployed spouse bears the burden of showing both employability and the availability of jobs.

In this case, the trial court erred in imputing monthly income to the Former Wife when it failed to make a specific finding that she was voluntarily unemployed or underemployed. Nor did the trial court properly address that the Former Husband did not discharge the onus upon him to show that she was employable and there were available jobs for her. Finally, the trial court failed to properly address the Former Wife’s evidence as to her bona fide efforts to obtain employment.  The appeals court reversed and remanded with direction to reconsider alimony and child support, as those awards were tied to the improper imputation of income.

Matrimonial Home

Generally, the trial court should award the primary residential parent exclusive use and possession of the marital residence until the child reaches majority or is emancipated. However, special circumstances may justify partition and sale of the marital home where the parties’ incomes are inadequate to meet their debts, obligations, and normal living expenses, as well as the expense of maintaining the marital residence. Special circumstances that justify the partition of the marital home can include instances where the parties resided in the marital residence for a short period of time, lacked other significant marital assets, and a large differential in relative earning power existed between the former spouses. In this case, the trial court erred in granting exclusive possession of the matrimonial home to the Former Husband, despite the residence of the minor child being there with him, insofar as this circumstance fell into one of those special circumstances warranting partition of the marital home. Specifically, the family had lived in the martial home for a short period of time when the parties separated, the parties do not have any other significant martial assets, and there is a large difference in the parties’ earning capacity. Moreover, the payments related to the marital home are significant and the Former Husband could find a place for himself and the minor child to live that is less expensive. The appeals court ordered, on remand, that the trial court order the marital home be partitioned.


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.