Florida Divorce and Family Law Update for Week Ending April 24, 2016

April 27, 2016

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

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

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

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

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

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

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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.

Florida Divorce & Family Law Update for Week Ending June 21, 2015

June 24, 2015

Case:              Martinez v. Izquierdo
Trial Judge: Laura M. Watson.
Attorneys:     Blanca Rosa Sordo.
Issues:            Protection Against Domestic Violence.

Holding: A trial court may enter an injunction for protection against domestic violence if it properly finds, on consideration of sufficient evidence, that the petitioner has an objectively reasonable cause to believe that he or she is in imminent danger of becoming a victim of an act of domestic violence. Under Florida Statute, the party being enjoined shall surrender any firearms of ammunition in his or her care or possession, unless he or she is a law enforcement officer, in which case, the prohibition may apply to them personally but not regarding their employment.

In this case, the trial court did not err given that the evidence was sufficient to establish that the Petitioner had an objectively reasonable cause to believe she was in imminent danger of becoming the victim of an act of domestic violence. However, in issuing the injunction, the court erroneously required the Respondent to surrender his ammunition and firearms notwithstanding that he was a law enforcement officer. The appeals court affirmed the trial court’s entry of the underlying injunction, but reversed and remanded with instructions that the trial court remove the prohibition on ammunition and firearms based on his status as a law enforcement officer, without prejudice for the trial court to provide limitations on any personal firearms or ammunition in his possession.

Case:              Herman v. Herman
Court:             Third District Court of Appeal.
Trial Judge: Mindy S. Glazer.
Attorneys:     Evan L. Abramowitz, Cynthia L. Greene.
Issues:            Parenting, Time-sharing.

Holding:        Florida Statutes (2015), provide that the trial court shall order the parental responsibility for a minor child be shared by both parents unless it finds that shared parental responsibility would be detrimental to the child. The trial court shall evaluate the evidence to determine if both parents are equally capable of providing for the minor child or children, and are capable of making paramount the child’s or children’s needs.

In this case, the trial court did not err in that it articulated its findings in a Supplemental Judgment, such findings being supported by competent substantial evidence. Nor did the trial court abuse its discretion by ordering shared parental responsibility. The appeals court affirmed the timesharing schedule established by the trial court in the Supplemental Judgment.

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Florida Divorce & Family Law Update for Week Ending June 14, 2015

June 16, 2015

Case:              Ardis v. Ardis
Court:             First District Court of Appeal.
Trial Judge: T. Michael Jones.
Attorneys:      Nancy A. Daniels, Glenna Joyce Reeves, Pamela Jo Bondi, Michael McDermott.
Issues:           Protection Against Domestic Violence.

Holding:          A judgment of contempt is presumed correct on appeal and will not be
disturbed unless there is insufficient evidence in the record to support it. Indirect criminal contempt may be found for violation of a court order, but only if the order clearly and definitely advises the person of its command and direction. In this case, all of the malfeasance alleged in the Former Wife’s petition post-dated the entry in of a Dissolution of Marriage (DOM) Order. Here, the continued compliance by the Former Husband with the courteous conduct provision in the domestic violence order, after the court entered the DOM order, renders the appeals court unable affirm the criminal contempt judgment and sentence entered against the Former Husband based upon a wilful violation of that order. The appeals court reversed and remanded.

Case:              Heard v. Perales
Court:             Fourth District Court of Appeal.
Trial Judge: F. Shields McManus.
Attorneys:      E. Christopher DeSantis, Michael Rebuck.
Issues:           Child Support, Imputation.

Holding: In imputing income, the trial court engages in a two-step process. Firstly, the trial court must conclude that the termination of income was voluntary. Secondly, the trial court must determine whether the subsequent unemployment is the result of the Former Spouse’s 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. The trial court must make factual findings as to both steps. The trial court must set also forth factual findings as to the probable and potential earnings level, source of imputed and actual income, and adjustments to income. The party claiming income should be imputed to the other party, on purported grounds of unemployment or underemployment, bears the burden of showing both that the other party is employable and that there is employment available to him or her.

In this case, the trial court properly engaged on the first step, as is it determined, on proper evidence, that the Former Wife lost her employment because of her particular conduct. Such finding was sufficient to support a conclusion that she was voluntarily unemployed. However, the trial court erred regarding the second step as it made no findings regarding the Former Wife’s diligence in seeking new employment. Nor did the evidence support a finding that her subsequent unemployment resulted from less than diligent and bona fide efforts to find employment as the Former Husband did not introduce evidence as to these issues. Given the lack of necessary findings and evidence, the appeals court reversed and remanded for a redetermination of child support.

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