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 August 21, 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:             Ketcher v. Ketcher 
Court:            First District Court of Appeal.
Trial Judge:   Linda F. McCallum.
Attorneys:     Brian P. North, Summer N. Boyd.
Issues:           Alimony.

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


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

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


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

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


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

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

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


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 April 1, 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:             J.M. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge:  J. David Langford.
Attorneys:     Antony P. Ryan, Melanie L. Casper, Rosemarie Farrell, Laura J. Lee.
Issues:            Dependency.
Holding:       Without evidence showing that domestic violence has occurred when a child or children were present, or that they were aware of such violence, a finding of impending harm to the children is unsubstantiated. For purposes of dependency, harm to a child includes extensive, abusive, and chronic use of a controlled substance or alcohol by a parent when the child is demonstrably adversely affected by such usage. In this case, the trial court erred in ordering dependency in the absence of competent substantial evidence that: a. the child was aware of alleged incidents of violence between the Mother and Father, or was affected by such instances; and b. the Mother was under the influence of substances in the presence of the Child, or that any substance abuse adversely affected the Child (despite her being under the influence in the presence of others). The appeals court reversed.


Case:              J.B. and D.C.F. v. C.S.
Court:            First District Court of Appeal.
Trial Judge:   Karen A. Gievers.
Attorneys:   Theresa Flury, Kelley Schaeffer, Dwight O. Slater, Thomasina Moore,    Ronald Newlin, Lorraine M. Donovan-Lepanto, Mike Donovan, Stephen Johnson.
Issues:            Termination, Reunification.
Holding:         Where the trial court's findings are supported by competent substantial evidence and the appellate court cannot say that no one could reasonably find such evidence to be clear and convincing, the findings will not be set aside on appellate review. In this case, the trial court did not err as it made its determination that statutory grounds for termination of parental rights existed; that termination promoted the children’s best interests; and that termination was the least restrictive means to protect the children from serious harm as competent substantial evidence. The appeals court affirmed.


Case:             Children’s Home Society of Florida v. V.D.
Court:            First District Court of Appeal.
Trial Judge:  Karen A. Gievers.
Attorneys:     Cheryl R. Eisen-Yeary, Elizabeth W. Willis, James V. Cook.
Issues:            Adoption.
Holding:       Under Florida Statutes, an adoption agency is not required to serve a notice of intended adoption plan on a putative father unless the mother has first identified a known and locatable unmarried biological father by the date she signs her consent for adoption. . Likewise, the statute does not require the agency to conduct a diligent search for the putative father unless the mother has identified a potential father within the timeframes required by the statute which are identified as the date the mother signs the consent for adoption. In this case, the trial court erred as no putative father was known, or locatable, or identified, by the time the birth mother signed her consent for adoption. Although that is the only time frame relevant under the statute, it is also true that the limited information the birth mother provided later, under questioning from the trial court, likewise did not identify a known or locatable putative father. The Society was not subject to any diligent search requirement beyond what it had already completed prior to the termination of parental rights. The appeals court reversed.


Case:             Demmi v. Demmi
Court:            First District Court of Appeal.
Trial Judge:   David Rimmer.
Attorneys:      Bradley G. Johnson, Bradley G. Fisher.
Issues:            Child Support/Expenses.
Holding:         In making an order as to non-covered medical expenses, if such expenses are ordered to be separately paid, a trial court must allocate these expenses in the same percentage as the child support allocation unless there is a rationale in the final judgment to the contrary.  In this case, the trial court erred in ordering the parties to each be responsible for the payment of 50% of the non-covered medical expenses of the children because such allocation conflicted with the final judgment’s allocation of the parties’ relative financial responsibility for child support.


Case:             Felice v. Felice
Court:            Second District Court of Appeal.
Trial Judge:   Christine Greider.
Attorneys:     
Issues:            Equitable Distribution, Parenting.
Holding:         In this case, the trial court erred by including a portion of the value of the Former Husband's premarital home as a marital asset in the equitable distribution scheme. While the parties’ did not specifically refer to any right to the appreciation or enhancement of the Former Husband’s premarital home the broad language of the agreement expressly waived the Former Wife's rights and claims in the property and included the appreciated or enhanced value of the property that occurs during the marriage. The court further erred as it failed to incorporate into the amended final judgment the amended parenting plan that the trial court ordered on rehearing from the original final judgment. The appeals court reversed.


Case:              R.W. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge: Jeri B. Cohen.
Attorneys:      Albert W. Guffanti, Karla Perkins, Laura J. Lee (Sanford).
Issues:            Termination.
Holding:         A trial court may properly question witnesses when required by the interests of justice. In this case, the trial court did not err in its participation in the questioning of witnesses at an adjudicatory hearing. Such questioning did not constitute an abandonment of the trial court’s role of neutrality and impartiality and did not deprive the appellant of due process.  The appellant failed to object to most of the court’s questions it now relies upon for this claim. The appeals court affirmed.


Case:             Collins v. Collins, Sr.
Court:            Fifth District Court of Appeal.
Trial Judge:   Mark J. Hill.
Attorneys:     Brandon M. Tyson, Paul W. Darby, Thomas Holden.
Issues:            Parenting.
Holding:      In awarding limited or restrictions on parental responsibility, a trial court must make specific findings on point. In this case, although the trial court’s factual findings supported its decision, the appeals court remanded because the final judgment failed to include a specific finding that shared parental responsibility would be detrimental to the children.


Case:             Nuila v. Stolp
Court:            Fifth District Court of Appeal.
Trial Judge:   Kelly J. McKibben.
Attorneys:      Lindsey M. Sharp.
Issues:            Injunction Against Domestic Violence.
Holding:       An injunction against dating violence is statutorily authorized if a petitioner proved three elements: (1) a dating relationship within the past six months; (2) at least one occasion of dating violence; and (3) reasonable cause to believe that he or she is in imminent danger ofanother act of dating violence. In this case, the trial court erred as, while there was competent substantial evidence on that the parties had dated in the past 6 months and there had been an episode of dating violence, the third statutory element, reasonable cause to believe that the petitioner was in imminent danger of another act of dating violence, was not supported by competent substantial evidence. The appeals court reversed.


Case:             G.K. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge:   J. David Langford.
Attorneys:     Antony P. Ryan, Richard G. Bartmon, Rosemarie Farrell, Laura J. Lee.
Issues:            Dependency.
Holding:         An order for dependency must be based on competent substantial evidence, avoiding inadmissible hearsay evidence, of risk to the child/children.  In this case, the trial court erred in ordering dependency when there was no competent substantial evidence that the children where at risk or witnessed incidents of domestic violence involving the parents, or that the Father posed a current threat to the safety of the children. The trial court also relied upon inadmissible hearsay evidence to support the order of dependency. The appeals court reversed and remanded.


Case:             Abramovic v. Abramovic
Court:            Fourth District Court of Appeal.
Trial Judge:   Jeffrey Dana Gillen.
Attorneys:     Jamie Billotte Moses.
Issues:            Equitable Distribution, Exemption.
Holding:         A lump sum equalizing payment to accomplish equitable distribution is properly awarded only when the evidence reflects a justification for such an award and the ability of the paying spouse to make the payment without substantially endangering his or her economic status. The custodial parent presumptively is entitled to the tax exemptions but may release them to the noncustodial parent. A final judgment awarding a dependency tax exemption must require that the exemption be conditional on the paying spouse’s being current in his support obligations. In this case, the trial court erred in requiring the Former Wife to make an equalizing payment which the evidence showed she could not afford; giving the Former Husband the dependency exemption without conditioning it on his compliance with his child support obligations, and not alternating the dependency exemption between the parties. The appeals court reversed.


Case:             McGlynn v. Tallman-McGlynn
Court:            Fourth District Court of Appeal.
Trial Judge:   Amy L. Smith.
Attorneys:      Robert M. Lewis, Catherine S. Eaton, Cash A. Eaton.
Issues:            Alimony, Child Support.
Holding:         Any error on the part of the trial court may be considered invited error. Matters argued for the first time in a reply brief will not be considered by the reviewing court. In this case, the trial court did not err in computing and applying the Former Husband’s net income when determining child support payments. The error raised by the Former Husband regarding calculation of his income was invited error as the court’s calculations were based on his affidavit evidence and not raised properly on appeal (he raised it in a reply brief). The Former Husband’s arguments regarding calculations were not supported by the record, and the trial court’s conclusions that he could to survive economically after making all required payments was supported on the evidence. The appeal court affirmed.


Case:             Palmer v. Palmer
Court:            Fifth District Court of Appeal.
Trial Judge:   Ann Melinda Craggs.
Attorneys:      Robert H. McLean, Bureus Wayne Argo.
Issues:            Parenting, Time-Sharing.
Holding:         In this case, the trial court did not err in allowing the Former Husband to reopen the evidence after the trial had concluded and regarding time-sharing. However, it did err in denying the Former Wife’s petition to limit their child’s exposure to dogs (due to allergies) in the face of expert evidence supporting a restriction and the Former Husband conceding that a restriction was in the child’s best interest. The appeals court reversed and remanded regarding restricting exposure to dogs


About DivorceCourtAppeals.com and Bruce Law Firm, P.A.

The Bruce Law Firm, P.A. is limited to the resolution of marital and family la w matters in Florida’s trial and appellate courts.  The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts.  The firm pays referral fees in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.

Florida Divorce & Family Law Update for Two Weeks Ending September 13, 2015

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


Case:              Hahamovitch v. Hahamovitch
Court:            Florida Supreme Court.
Trial Judge:   Martin Colin
Attorneys:   Jeanne Brady, Frank Brady, Robert Sidweber, Karent Weintraub, Jane Kreusler-Walsh, Rebecca Vargas, Stephanie Serafin, Joel Weissman, and Sarah Saull.
Issues:            Prenuptial Agreements.

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


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

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


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

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


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

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


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


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


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

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

In this case, the trial court erred as it:

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

The appeals court reversed and remanded for reconsideration.


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

Notice

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

Evaluations and Release of Records

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

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

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


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

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

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

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

The appeals court reversed and remanded for an evidentiary hearing.


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

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

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

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


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

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


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

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

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


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

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


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

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

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


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

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

Durational Alimony

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

Lump Sum Alimony

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


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

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

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


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 August 30, 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:              Niekamp v. Niekamp
Court:            Second District Court of Appeal.
Trial Judge:  John S. Carlin.
Attorneys:     Sam R. Assini, Matthew P. Irwin, Luis E. Insignares.
Issues:           Equitable Distribution, Time-sharing, Spousal Support, Child Support, Imputing Income, Attorney’s Fees.
Holding:         Parental Responsibility

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

Marital Assets

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

Alimony

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

Dissipation of Assets

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

In this case, the trial court erred in that:

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

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

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

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

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

The appeals court reversed and remanded for further proceedings.


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

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


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

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

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

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

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

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

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

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

c.     She had made significant contributions to the property.

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

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

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


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 3 Weeks Ending August 16, 2015

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

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

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


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

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


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

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

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

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

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

MSA Was Valid & Enforceable

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

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

Permission to Amend

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

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


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

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


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

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


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

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


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

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


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

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

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


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

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


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

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


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

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


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

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

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


About DivorceCourtAppeals.com and Bruce Law Firm, P.A.

The Bruce Law Firm, P.A. is limited to the resolution of marital and family la w matters in Florida’s trial and appellate courts.  The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts.  The firm pays referral fees in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.

Florida Divorce & Family Law Update for 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.


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