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:              Bachman v. McLinn
Court:            Second District Court of Appeal.
Trial Judge: John S. Carlin.
Attorneys:     Matthew S. Toll, Stephen N. McGuire, II, Renee Binns.
Issues:            Child Support.

Holding: A trial court can only modify support payments prospectively (from the date a petition for modification is filed). In the case, the trial court erred in granting the Former Husband retroactive credit for child care costs to a date prior to his petition for this relief. The appeal court reversed the relevant portion of the order.

Case:              Back v. Back
Court:            Second District Court of Appeal.
Trial Judge: Catherine M. Catlin.
Attorneys:     Arnold D. Levine, Robert H. Mackenzie, Allison M. Perry.
Issues:            Equitable Distribution.

Holding: Under Florida Statutes (2012), a trial court may not impute income to a parent whose unemployment is involuntary. Imputing income to an unemployed parent for the purposes of child support is a two-step process. Firstly, the court must determine whether the parent's unemployment is voluntary. If so, the court then determines what level of income to impute. When there is no evidence that a parent is voluntarily unemployed, imputing income is error. In this case, the trial court erred in imputing income to the Husband for the purpose of calculating child support in the absence of evidence in the record that he was voluntarily unemployed. The appeals court reversed and remanded.

Case:              S.R. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: Hope T. Bristol.
Attorneys:     Brett P. Rogers, Pamela Jo Bondi, Carolyn Schwarz.
Issues:           Guardianship, Termination.

Holding:        Under Florida Statutes, when a trial court places a minor child in a permanent guardianship, it must, among other things: 1. List the circumstances or reasons why the child’s parents are not fit to care for the child and why reunification is not possible by referring to specific findings of fact in its order adjudicating the child dependent or by making separate findings of fact. 2. Specify the frequency and nature of visitation or contact between the child and parents. In this case, the trial court erred when it limited the Father to supervised visitation in the absence of the required statutory findings in the written order. Specifically, the trial court made no specific findings in its written order that reunification would endanger the children’s physical, mental, or emotional wellbeing. Instead, the order generally concluded that, “there is a continual need for out-of-home placement to ensure the children’s health, safety and wellbeing,” and that reunification “would be contrary to the welfare and not in the best interest of the children.” Such generic language was insufficient to satisfy the requirements of the statute. The order further fails to specify the frequency of the Father’s supervised visitation with the children. The appeals court reversed and remanded.

Case:              Fortunoff v. Morris
Court:            Fourth District Court of Appeal.
Trial Judge: David E. French.
Attorneys:     Peter Ticktin, Kendrick Almaguer, Christine M. Deis, Peter L. Gladstone, Heather L. Apicella.
Issues:            Alimony.

Holding: Trial courts have broad discretion in awarding temporary relief. A high degree of deference is afforded such decisions, except under the most compelling of circumstances. In making an award of temporary alimony, a trial court must consider the needs of the spouse requesting the alimony and the ability of the other spouse to pay alimony, based on competent, substantial evidence. In this case, the trial court erred in its award of temporary alimony in the absence of competent, substantial evidence. The appeals court reversed and remanded.

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Case:       Ivanovich v. Valladarez
Court:            Second District Court of Appeal.
Trial Judge: Keith Spoto, William D. Sites.
Attorneys:      Elizabeth S. Wheeler.
Issues:            Child Support, Attorney’s Fees.

Holding:        Child Support

A retroactive child support obligation may not be imposed prior to the filing of a petition seeking a modification. On a motions for modification, a trial court may modify child support retroactively to the date of the filing of the action or supplemental action for modification. In a custody proceeding, the court is precluded from entering a judgment on any matter outside the issues framed by the pleadings. Specific findings regarding the parties' incomes are necessary for a determination of whether the support ordered departed from the guidelines and, if so, whether that departure was justified. The expenses of visitation are part of the parties' childrearing expenses that must be addressed as part of the parties' child support obligations.

In this case, the trial court erred in ordering retroactive child support to the Former Husband when he sought only custody and not a modification of child support as well. His request for modification of child support was made later, when he sought permanent custody. The relevant date for purposes of child support was not when he received custody of the child; it was when he filed a pleading seeking modification of child support. As well, the trial court imputed income to the Former Wife, but did not make specific findings regarding the Former Husband's income. The lack of findings regarding gross income prevented the appeals court from determining whether the trial court erred, so the order was reversed. Finally, the trial court erred in not factoring into the child support calculations the expenses of the Former Wife regarding visitation. The appeals court reversed and remanded for reconsideration.

Attorney’s Fees

The trial court did not make any findings of need and ability to pay, which are the primary considerations in such matters. The trial court was also required to make findings regarding the reasonable hourly rate and number of hour expended. While the trial court found the Former Husband's request for fees reasonable as to the time expended and hourly rate for fees, it failed to make any findings regarding the reasonable hourly rate. The appeals court affirmed the order denying the Former Wife's motion to vacate the first order, but reversed the first order due to error.

Case:       Lardizzone v. Lardizzone
Court:            Fourth District Court of Appeal.
Trial Judge: Laurie E. Buchanan.
Attorneys:
Issues:            Equitable Distribution.

Holding: Marital assets and liabilities include liabilities incurred during the marriage, individually or jointly. The cut-off date for determining which assets and liabilities are marital is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage. In the final judgment, the trial court found that the Former Husband incurred significant medical bills from an injury that occurred while the parties were married. It then characterized them as a marital liability for which the parties should be equally responsible. However, these findings were ambiguous as there were amounts of unpaid bills not yet determined. The appeals court reversed and remand for the clarification of the amount of unpaid medical bills for which he was personally liable on the cut-off date for determining marital liabilities.

Case:              Feliciano v. Munoz-Feliciano
Court:            Fourth District Court of Appeal.
Trial Judge: Nicholas Lopane.
Attorneys:      Catherine L. Roselli, Nancy A. Hass.
Issues:            Equitable Distribution.

Holding: The interpretation of a marital settlement agreement, as incorporated into the final judgment, is subject to de novo review. A marital settlement agreement is interpreted like any other contract. Courts are not to rewrite terms that are “clear and unambiguous. The plain meaning of the contract specified that payment from the Former Husband to the Former Wife would come from his share of the proceeds of the sale of the marital home. This agreement provided that the parties did not want any “deficit payments”. In this case, the trial court’s order contradicted the terms of the marital settlement agreement when it found the Former Wife was entitled to additional funds subsequent to the sale of the matrimonial home (a deficit payment) and entered judgment against the Former Husband in that amount. The order for a deficit payment constituted error. The appeals court reversed.

Case:              Perez v. Perez
Court:            Second District Court of Appeal.
Trial Judge: Michael J. Scionti.
Attorneys:      Allison M. Perry, Sema Yildirim.
Issues:            Child Support, Alimony.

Holding: Trial courts have great jurisdiction in making temporary relief awards, but it is improper for the trial court to fail to identify which share of the award is for child support and which intended to be alimony. The trial court must also make findings regarding the parties' incomes for purposes of applying the child support guidelines. In this case, the trial court erred as its order failed to differentiate between child support and alimony. It required the Former Husband to pay for rent on the Former Wife's apartment and her moving expenses but did not identify whether that was alimony or child support. The trial court also failed to make any findings regarding the parties' incomes. The appeals court reversed.

Case:         Corio v. Lopez
Court:            Fifth District Court of Appeal.
Trial Judge: Bob Leblanc.
Attorneys:      Michael B. Jones.
Issues:            Paternity, Venue.

Holding: A paternity action lies in the circuit court for the county in which either the plaintiff or defendant resides. When venue is proper in more than one county, a plaintiff may choose to institute suit in any proper place and the trial court must honor that choice. In seeking a change of venue, the defendant has the burden of proving that the plaintiff’s venue selection is improper; it is insufficient to merely establish that venue is proper elsewhere.

In this case, the trial court erred when, without a hearing, it granted the Plaintiff Father’s motion and transferred the action to another venue. He was deprived of due process when the trial court entered the order without affording him the opportunity to be heard on the motion. Notwithstanding, the trial court erred when it concluded that the venue needed to be changed as he had filed in the appropriate venue. The appeals court reversed.

Case:             Salazar v. Giraldo
Court:            Fifth District Court of Appeal.
Trial Judge: Mark J. Hill.
Attorneys:      Jeffrey A. Conner, Brian M. Monk.
Issues:            Equitable Distribution.

Holding: Florida Statutes (2015), holds that a party is not entitled to any credits or setoffs upon the sale of the marital home unless a settlement agreement, final judgment of dissolution of marriage, or final judgment equitably distributes assets or debts and provides that certain credits or setoffs are allowed or given at the time of the sale. In the absence of a settlement agreement involving the marital home, the court shall consider certain enumerated factors including alimony, exclusive possession and other awards and circumstances. Specifically, the amended final judgment was silent as to whether he was entitled to any credits or setoffs upon the sale. Nor did the record show whether the trial court considered the statutory factors it was required to assess prior to entering judgment. The appeals court reversed and remanded for proper consideration.

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