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:             Bellant v. Bellant
Court:            Second District Court of Appeal.
Trial Judge: Edward Nicholas.
Attorneys:     Susan J. Silverman, Melton H. Little, Peter J. Mackey, Drew F. Chesanek.
Issues:            Attorney’s Fees.

Holding: In this case the trial court erred in awarding attorney’s fees to the Former Husband based, in part, on its finding of bad faith conduct by the Former Wife and her legal counsel absent it explaining what constituted said bad faith. The appeals court remanded with directions.

Case:            B.B.S. et al v. Rodriguez-Murguia
Court:            Fourth District Court of Appeal.
Trial Judge: Barbara W. Bronis.
Attorneys:      Charles E. Jarrell.
Issues:            Maternity.

Holding: Florida Statutes (2014), provide that circuit and county courts have jurisdiction to declare rights, status, and other equitable or legal relations. No action or procedure is open to objection on the ground that a declaratory judgment is demanded. The United States Supreme Court and the Florida Supreme Court have recognized the fundamental rights of parents. In this case, the trial court erred in dismissing the Children’s cause of action to determine maternity when it should have allowed them to do so by way of a declaratory action under Florida Statutes. The Mother signed their birth certificates using a false name because she was not in the country legally. When she tried to amend the birth certificates to correctly identify herself as their mother, each state where the Children were born would not authorize the change without a court order. The Children brought the action to establish maternity in conjunction with a request for child support and a parenting plan. The trial court was required to adjudicate to determination of existing rights or duties. The appeals court reversed and remanded.

Case:            Steinman v. Steinman
Court:            Fourth District Court of Appeal.
Trial Judge: Howard K. Coates, Jr..
Attorneys:     Amy D. Shield, Roger Levine, Charles D. Jamieson.
Issues:           Contempt.

Holding: A trial court cannot preclude the custodial parent of one religious faith from actively influencing the training of the child inconsistently with the different religious faith of the other parent. Nor can it require the custodial parent to raise the child in the other parent’s faith and cooperate with the other parent in effecting the result. In this case, the trial court erred in holding the Mother in contempt for unilaterally changing the religious care of the children when, in fact, the Father’s principal concern was with afterschool care and the Father led no evidence that the children were harmed by exposure to the Mother’s religious beliefs or practices. The appeals court reversed.

Case:             D.H. v. T.N.L. and Guardian ad litem
Court:            Fourth District Court of Appeal.
Trial Judge: Gary L. Sweet.
Attorneys:      Lori D. Shelby, Linda L. Weiksnar.
Issues:            Contempt.

Holding: In order to find an individual in contempt, the trial court must find that the contemnor had the ability to comply with the previous court order. Florida Rules of Juvenile Procedure codifies this and sets out detailed procedures that must be followed before a person can be found in civil contempt. An order finding a person in contempt must contain specific findings, including a finding that the alleged contemnor had the ability to comply with a prior court order and willfully failed to do so. In this case, the trial court erred in finding the Father in contempt without finding that he had the present ability to pay the amounts ordered. While this issue was not preserved, the court departed from the essential requirements of law and committed fundamental error. The appeals court reversed and remanded.

Case:             Moore v. Yahr
Court:            Fourth District Court of Appeal.
Trial Judge: Timothy L. Bailey.
Attorneys:      Gerald W. Adams, Catherine L. Roselli.
Issues:            Paternity.

Holding: When restricting or preventing timesharing, a trial court must set forth any specific requirements or standards to remove or alleviate the restrictions. Failure to do so is error. The court must give the parent the key to reconnecting with his or her children. The costs of supervision should be considered as part of the child support calculations. In this case, the trial court erred as it failed to set forth specific steps by which the Father could establish unsupervised timesharing and improperly ordered him responsible for the costs of supervision. The appeals court reversed.

Case:              Songur v. Songur
Court:            Fifth District Court of Appeal.
Trial Judge: Mike Murphy.
Attorneys:     Christie L. Mitchell.
Issues:            Parenting, Time-sharing, Contempt.

Holding: A trial court must make specific findings as to educational decisions and parents’ ultimate responsibilities. Imputations of income must be made on evidence and explanation for related findings. In this case, the trial court erroneously granted ultimate decision-making authority over a child’s education to the Former Husband absent a finding that shared parental responsibility would be detrimental to the child or that ultimate responsibility over the child’s education was in the child’s best interest. The trial court also erred in imputing income to both parents without any evidentiary basis and without explanation for these findings. The appeals court reversed and remanded

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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.

Case:               Guevara v. Guevara et al
Court:             Third District Court of Appeal.
Trial Judge: Maria E. Dennis.
Attorneys:      Jay M. Levy, Ira B. Price, Mark E. Pollack.
Issues:             Procedure, Final Order.

Holding:        Leave of court to amend a pleading shall be given freely when justice so requires. In this case, trial court erred when it abused its discretion in dismissing the Former Wife’s petition to set aside a Final Judgment (approving and ratifying the parties’ Marital Settlement Agreement, “MSA”) with prejudice to her claim that she did not receive moneys in exchange for her interest in the sale of certain real estate, as was provided for in the MSA. The appeals court reversed that portion of the trial court order and, on remand, the Former Wife was permitted to amend the portion of her claim as to the moneys to which she is entitled under the MSA.

Case:               Castelli v. Castelli
Court: Fourth District Court of Appeal.
Trial Judge: Laura M. Watson.
Attorneys:      John H. Pelzer, Robert J. Moraitis, Peter M. Raimondi
Issues:             Contempt, Matrimonial Property.

Holding: A right of first refusal is a right to elect to take specified property at the same price and on the same terms and conditions as those contained in a good faith offer by a third person if the owner manifests a willingness to accept the offer. When the holder of a right of first refusal attempts to exercise his right but adds or deletes terms and/or conditions that render the offer different than that submitted by the third party prospective purchaser, the right of first refusal has not been properly exercised. However, a right of first refusal ripens into an option and is governed by the law of options when the owner of the property in question manifests a willingness to accept a good faith offer for the purchase of the property. In that case, a party need not recite the terms of the third party contract he is agreeing to match when he exercises his right of first refusal; rather it is simply enough to announce an intent to match them. In this case, the trial court erred in rejecting the Former Husband’s attempt to exercise a right of first refusal with respect to the purchase of the former matrimonial home when, the right of first refusal had transformed into an option contract to which the Former Husband had agreed in principle (both before and after he invoked his “right of first refusal”). The trial court also erred in finding him in contempt for not executing a third party offer on the property. In this situation, the right of first refusal effectively transformed into an option contract when the Former Wife agreed in principle to accept the third party purchaser’s offer, both before and after the Former Husband had invoked his “right of first refusal.” The Former Husband had emailed indicating he would match the terms of another offer. This was sufficient to trigger the exercise of his right. The appeals court reversed and remanded to the trial court to strike the Former Husband’s contempt order, insofar as he was seeking to invoke and exercise his right of first refusal in the circumstances, and enforce the exercise of his right of first refusal.

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