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 & Family Law Update for Week Ending April 10, 2016

April 12, 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:            Schneider v. Schneider
Court:            First District Court of Appeal.
Trial Judge: Dan Wilensky.
Attorneys:     Lynn W. Martin.
Issues:           Contempt, Attorney’s Fees.

Holding:      A finding of contempt for unpaid debt is proper only if the debt is alimony or child support. It is an abuse of discretion to hold a person in contempt for failure to comply with a property-settlement provision of a final judgment of dissolution of marriage. In this case, the trial court erred in finding the Former Husband in contempt regarding an order to pay child support and a property settlement payment from his military retirement pay each month. Specifically, he paid the Former Wife the amount due for child support several days after it was due. She considered the money as payment for the property settlement, and the remainder as child support. The trial court ratified her opinion and found the Former Husband in contempt for refusal to make a property settlement payment on time. The appeals court could not rule on whether error occurred regarding the award of fees due to lack of preservation or transcripts of the relevant proceedings. The appeals court reversed as to contempt but affirmed as to the award of fees.

Case:             M.D. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: Kenneth L. Gillespie.
Attorneys:     Katherine L. Corrigan, Pamela Jo Bondi, Carolyn Schwarz, KelleySchaeffer.
Issues:           Termination.

Holding: A trial court’s decision to terminate parental rights must be based upon clear and convincing evidence supporting statutorily enumerated grounds. appellate review is limited to whether the judgment was supported by competent substantial evidence. In this case, the trial court did not err as its decision to terminate was based on competent, substantial evidence regarding statutory requirements. The trial judge found that the Father knew how to communicate with the Child in an effort to maintain a relationship, but he did not, and found the Father’s testimony not to be credible. The Father’s appeal required the appeals court reweigh the evidence, which it could not. The appeals court affirmed.

Case:             Caputo v. Caputo
Court:            Fourth District Court of Appeal.
Trial Judge: Jeffrey Dana Gillen.
Attorneys:     Jay A. Schwartz, Colleen E. Huott.
Issues:           Contempt.

Holding:       Contempt cannot lie where the order or judgment does not specifically address the matter complained of. An order finding entitlement to attorneys’ fees is a non-final, non-appealable order. It is acceptable to have a determination made at a subsequent hearing. In this case, the trial court did not err in dismissing the Former Wife’s attempt to hold the Former Husband in contempt for enrolling their child in daycare near his place of employment, and awarding him attorney’s fees. Contempt could not be ordered because the final judgment of dissolution did not expressly address daycare. Nor did the trial court err when it ordered the Former Husband was entitled to attorney’s fees as they were to be determined at a subsequent hearing. The appeals court affirmed.

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Florida Divorce & Family Law Update for 3 Weeks Ending August 16, 2015

August 20, 2015

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.

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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 March 15, 2015

March 16, 2015

Case:             Cheek v. Hesik
Court:            First District Court of Appeal.
Trial Judge: A. C. Soud, Jr..
Attorneys: William S. Graessle, Jonathan W. Graessle.
Issues:           Process.

Holding:        If a trial court issues an order adjudicating an issue not presented by the parties, or the pleadings, due process is infringed. The order, therefore, departs from the essential requirements of law. Further, where there has been no pleading requesting modification, then the modification of a judgment constitutes a jurisdictional defect. In this case, the trial court erred when it temporarily suspended the Former Husband’s one-half obligation toward travel costs and ordered that all timesharing less than four days in duration occur in the vicinity of his residence when such issues were neither properly raised by the pleadings nor set for hearing. In doing so, the Former Wife’s due process rights were violated. The appeals court reversed and remanded with instructions to vacate those portions of the order.

Case: Solache v. Ibarra
Court: Third District Court of Appeal.
Trial Judge: Valerie R. Manno Schurr.
Attorneys: Harvey D. Rogers, Nory Diaz, Nancy A. Hass.
Issues: Child Support, Contempt.

Holding: Prospective Increase in Alimony: It is improper for a trial court to grant a final judgment which provides for an automatic prospective increase in alimony in the absence of specific factual findings, or the failure to articulate any reason, for same.

The trial court erred, however, with regards to the provision in the final judgment that, upon the child of the marriage reaching the age of majority (and the termination of child support payments), the monthly alimony payments to Former Wife would automatically increase. The final judgment failed to make any specific factual findings, or articulate any reason, for such an automatic prospective increase in alimony. The appeals court concluded it was error to provide for this automatic increase, affirmed the contempt order and reversed that portion of the final judgment providing for an automatic increase in alimony.

Contempt Order

An initial determination of a support obligation by a trial court, which must be supported by competent substantial evidence, creates a presumption of a payor’s ability to pay. At a contempt hearing, it is open for a trial court to determine whether a payor alleged to have defaulted on such obligations, has overcome this presumption. The trial court must, on competent substantial evidence, determine that the payor has the present ability to pay and failed or refused to comply with the support order to pay.

In this case, the trial court did not err with regard to the trial court’s contempt order. The final judgment was predicated upon an affirmative finding of the Former Husband’s ability to pay the support amount ordered. This initial determination, which was supported by competent substantial evidence, created a presumption of the Former Husband’s ability to pay. The trial court’s determination, at the contempt hearing, that former husband failed to overcome this presumption, had the present ability to pay, and failed to comply with this order, was also supported by competent substantial evidence.

Case:              M.P. v. D.C.F.
Court: Fourth District Court of Appeal.
Trial Judge: James Martz.
Attorneys:     Antony P. Ryan, Paulina Forrest, Rosemarie Farrell.
Issues: Process.

Holding:         Dependency Order

Courts are duty-bound to ensure that their dependency orders reflect only facts proved by competent, substantial evidence presented at the dependency hearing.

In this case, the trial court erred when it included, as a factual basis for the dependency, verbatim from the “prior history” summaries of call-out investigations that were set forth in the dependency petition, being uncorroborated reports not supported by evidence at trial. The appeals court affirmed the overall order but remanded with instructions for the trial court to strike the unsupported findings from its orders.
Random Drug Testing

A court may order a parent to submit to a mental or physical examination in circumstances where (1) the parent has requested custody of the child, (2) the parent’s mental or physical condition is in issue, and (3) there is good cause shown for the examination. An mental or physical examination may be ordered any time after a shelter petition or petition for dependency is filed and the mental or physical condition of a parent, caregiver, legal custodian, or other person who has custody or is requesting custody of a child, is in issue. A qualified professional must conduct the examination. Such matters, including a case plan, must be considered by the court having regard to whether the plan is meaningful and designed to address facts and circumstances upon which the court based the finding of dependency.

In this case, the trial court erred in requiring the Father to submit to random drug testing. While the Father sought custody, and the dependency petition alleged that the father had a criminal history of drug possession, sufficient to place the issue of his substance use in issue, the trial evidence did not show that he abused drugs. There was also no evidence at trial regarding the Father’s alleged arrest for possession of drugs. The trial court relied, erroneously, on allegations of drug use, however this reliance fails to satisfy the good cause standard. Nor was there any showing that a substance abuse evaluation would meaningfully address the facts and circumstances which resulted in the adjudication of dependency as to the Father. The appeals court reversed for the trial court to strike the task of random drug testing from the Father’s case plan.

Case:              Dugan v. Dugan
Court:             Fifth District Court of Appeal.
Trial Judge: Shawn L. Briese.
Attorneys:     John N. Bogdanoff, Elizabeth Siano Harris.
Issues:            Alimony, Equitable Distribution, Attorney’s Fees.

Holding: An error on the face of a final judgment should be corrected. Findings related to alimony awards must have a proper evidentiary basis. A trial court must give its rationale, based on trial evidence, for a finding which forms part of the final judgment. In this case, the trial court erred in finding that all of Former Wife's medical expenses were entirely covered by Medicare, and entering such finding on the face of the judgment without sufficient rationale. Specifically, the trial court based its finding on what it described as the Former Husband's “uncontroverted testimony” notwithstanding that the Former Wife provided authority suggesting that she is responsible for Medicare premiums, deductibles, and noncovered expenses. The appeals court reversed on the issue of Former Wife's medical expenses and remanded.

Case:               McGarvey v. McGarvey
Court:             Fifth District Court of Appeal.
Trial Judge: Hubert L. Grimes.
Attorneys:      Brian J. Lee, William R. Alexander.
Issues:            Time-sharing, Child Support, Attorney’s Fees.

Holding:         In determining timesharing, a trial court must make an independent assessment of a timesharing arrangement that is in the best interests of the child or children. Such an assessment must be based on substantial cogent evidence. In this case, the trial court erred in finding that the parties had reached an agreement addressing, among other things, parenting, and ruled on timesharing and child support. The parties later conceded that no such agreement had been reached. The appeals court reversed the ruling on timesharing and, as a result, determined that child support may also need reconsideration.

Case:              Makaros v. Cichocki
Court:             Fifth District Court of Appeal.
Trial Judge: James H. Earp.
Attorneys:      Elizabeth Siano Harris.
Issues:            Adoption.

Holding:          Under Florida statute, jurisdiction of an adoption may be vested in the Florida courts by virtue of the fact that a child, or children, and the petitioner resided within the court's jurisdiction and the natural parent gave the required consent. An adoption proceeding is not barred merely because a competent court of another jurisdiction has validly exercised its authority by awarding custody of the child sought to be adopted when the court before whom adoption is sought otherwise has jurisdiction to proceed. A relative (ie: aunt, uncle or even grandparent) with visitation rights procured in a different state, is not necessarily entitled to notice of the stepparent adoption proceedings. The interest that entitles a person to notice of an adoption must be direct, financial, and immediate, and the person must show that he or she will gain or lose by the direct legal operation and effect of the judgment. A showing of an indirect, inconsequential, or contingent interest is inadequate, and a person with this indirect interest lacks standing to set aside a judgment of adoption.

n this case, the trial court did not err in determining that Florida was the child’s home state when the final judgment was entered. Even though the “Home State” Rule was raised as a ground in the appeals process, under the “Tipsy Coachman” Rule, the appeals court concluded that the resolution of the case did not turn on whether Florida was the “Home State” of the child under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) at the time the court entered the adoption. Rather, regardless of whether Florida was the “Home State” of the child at the time the court entered the adoption, under Florida statute (as cited and relied on in Florida case law), the trial court had subject matter jurisdiction to enter the final judgment of adoption.

Here, the Father had sole custody of the child at the time the petition for stepparent adoption was filed. Therefore, he was the only person required to consent to the adoption. Insofar as the Father had consented, the appeals court affirmed the trial court’s denial of the motion to set aside the final judgment of stepparent adoption.

Case:              Bristow v. Bristow
Court:             Fifth District Court of Appeal.
Trial Judge: Michelle T. Morley.
Attorneys:
Issues: Injunction for Protection Against Domestic Violence.

Holding:        A petition for the dismissal of an injunction for protection against domestic violence must state a cause of action. It cannot make vague allegations. Rather, it must allege sufficient facts to show that a party has reasonable cause to believe he or she is in imminent danger of being a victim of domestic violence.

In this case the trial court did not err when it declined to set an evidentiary hearing regarding a petition filed by the Appellant on the grounds that the petition was deficient on the facts required to establish jurisdiction of the Florida courts pursuant to statute. The appeals court’s affirmance was without prejudice to the Appellant filing, if able to do so in good faith, a new, legally sufficient petition.

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Florida Divorce & Family Law Update for Week Ending February 15, 2015

February 17, 2015

Case:              Atkinson v. Atkinson
Court:             Second District Court of Appeal.
Trial Judge: Ashley B. Moody.
Attorneys:      Elizabeth S. Wheeler, Christian D. Denmon, Nicole Denmon, Andrew Plagge.
Issues: Alimony.

Holding: The court may reduce or terminate an award of alimony upon making specific written findings that, since the granting of a divorce and the award of alimony, a supportive relationship has existed between the payee and a person with whom the payee resides. Cohabitation often constitutes a change in circumstance. However, the definition of cohabitation and what facts, beyond a common residence, establish a supportive relationship rather than that of roommates or tenant/lodger. A trial court's decision concerning whether or not cohabitation has been established involves a mixed question of law and fact requiring a mixed standard of review, limited to determining whether they are supported by competent, substantial evidence. However, the appeals court reviewed the trial court's construction of the term "cohabitation" and its legal conclusions, de novo. Matrimonial settlement agreements providing for the termination of alimony upon cohabitation are intended to protect the payor spouse from a continuing obligation to pay alimony when the payee spouse is residing with another person under circumstances similar or tantamount to marriage. Therefore, a finding of cohabitation requires more than the mere presence of another person under the payee spouse's roof.

In this case, the trial court erred in ruling that a male living in the Former Wife's residence amounted to "cohabitation with a male" within the meaning of the parties’ MSA, such that the Former Wife’s alimony award would terminate. On the evidence, the Former Wife and the man maintained a relationship more akin to his being a lodger or tenant. The appeals court reversed and remanded for, among other things, an amended order denying the Former Husband's petition to terminate his obligations to pay alimony and maintain a life insurance policy as security for its payment.

Case:              Chamberlain v. Eisinger
Court:             Fourth District Court of Appeal.
Trial Judge: Paul B. Kanarek.
Attorneys:      A. Julia Graves
Issues:            Child Support, Imputed Income, Time-Sharing, Reunification.

Holding: Modification of Custody & Timesharing
When modifying a parenting and timesharing plan, the primary considerations are the best interests of the children. To modify an order of custody, the movant must show that: the circumstances have substantially and materially changed since the original custody determination; this change could not be contemplated by the parties at the time of the original judgment; and it is in the child’s best interests to change custody. While this onus on the party seeking to modify is intended to preclude repeated custody disputes, it should not preclude legitimate review of the petition. Courts must evaluate all relevant statutory factors affecting the welfare and interests of the child. A trial court’s order changing custody enjoys a presumption of correctness on appellate review and will only be disturbed for abuse of discretion.

In this case, the trial court did not err in concluding a substantial change in circumstances existed and that such change warranted the modification of timesharing because it trial court considered evidence relevant to the best interests of the children.

Reunification

A custodial parent has an affirmative obligation to encourage and nurture the relationship between the child and the noncustodial parent. This entails encouraging the child to interact with the noncustodial parent, taking good faith measures to ensure that the child visit and otherwise have frequent and continuing contact with the noncustodial parent and refraining from doing anything likely to undermine the relationship naturally fostered by such interaction. In this case, the trial court did not err in holding that the Former Husband was not thwarting the Former Wife’s efforts at reunification with the children insofar as he provided evidence to support his position while the Former Wife provided none.

Child Support

The standard of review for a child support award is abuse of discretion. In this case, the trial court erred in factoring in the Former Husband’s alimony payments into child support for months where he failed to pay alimony. The appeals court reversed and remanded for a determination of the amount of alimony paid to determine an offset to the retroactive child support obligation.

Imputing Income

When imputing income, the trial court must set forth factual findings, based on cogent evidence, concerning the probable and potential earnings level, source of imputed and actual income, and adjustments to income. In this case, the trial court erred in imputing income to the Former Husband in the absence of evidence.

Case:              Clark v. Clark
Court:             First District Court of Appeal.
Trial Judge: John L. Miller.
Attorneys:      E. Jane Brehany.
Issues:            Alimony, Property Distribution.

Holding: Under Florida statutes, the date the petition for dissolution of marriage was filed is an appropriate date for classifying the parties’ assets as marital, and the date for determining value of assets classified as marital is the date, or dates, as the court deems is just and fair in the circumstances. In this case, the trial court did not err in using the petition filing date as the date for valuing a marital asset, an investment account, which was lower in value at the end of the marriage than at the beginning. The appeals court reversed that portion of the final judgment equitably distributing the parties’ marital assets and liabilities, and remanded for correct determination of the value of the asset.

Case:              Jonas v. Jonas
Court:             Fourth District Court of Appeal.
Trial Judge: Lucy Chernow Brown.
Attorneys:      Roderick V. Hannah, Eric C. Christu.
Issues:            Jurisdiction, Foreign Judgments.

Holding: Comity requires courts state to refrain from exercising jurisdiction in certain cases. When a court is confronted with an action that would involve it in a serious interference with or usurpation of this continuing power, considerations of comity and orderly administration of justice demand that the non-rendering court should decline jurisdiction and remand the parties for their relief to the rendering court, so long as it is apparent that a remedy is available there. As for the principle of priority, or where a foreign court is first to assert jurisdiction, the usual remedy in such cases is to stay the subsequent proceeding in favor of the prior proceeding. The interests of judicial economy and finality may require that subsequent actions come to an end. The appeals court affirmed and required a former spouse to return to the original jurisdiction to conclude proceedings.

Case:             Kelly v. Snietka
Court:             Fourth District Court of Appeal.
Trial Judge: Thomas Barkdull, III.
Attorneys:      Craig A. Boudreau, Scott D. Glassman, Sue-Ellen Kenny.
Issues:            Paternity, Child Support.

Holding: Under Florida Rules of Appellate Procedure, the court may review any ruling or matter occurring before filing of a notice of appeal. A notice of appeal of a final judgment does not include orders entered after the final judgment unless they are specifically appealed. In this case, the trial court did not err in taking jurisdiction to consider an order vacating a prior final judgment and a motion to disqualify a trial judge, as both were issued before the final judgment, which is under appeal.

Case:              Medina v. Haddad
Court:             Third District Court of Appeal.
Trial Judge: Marcia B. Caballero.
Attorneys:      Brandon A. Rotbart.
Issues:            Procedure.

Holding:    In deciding whether a protective order is appropriate in a particular case, the court must balance the competing interest that would be served by granting discovery or denying it. Overall, means less intrusive than the release of confidential information should be used where available. In this case, the trial court erred by ordering the Former Wife to disclose settlement agreements between the law firm to which she was contracted and third parties. Such was the property of a non-party law firm or its non-party clients. Moreover, to do so might result in a breach of confidence. The appeals court quashed the order.

Case:              Haeberli v. Haeberli
Court:             Fifth District Court of Appeal.
Trial Judge: Bob Leblanc.
Attorneys:
Issues: Contempt.

Holding:          While a person facing civil contempt sanctions is not entitled to the full panoply of due process rights afforded to a person facing indirect criminal contempt charges, he or she is nonetheless entitled to a proceeding that meets the fundamental fairness requirements of the due process clause of the Fourteenth Amendment to the United States Constitution. Such fundamental fairness includes providing the alleged contemnor with adequate notice and an opportunity to be heard. The failure to provide the Former Husband with any notice that motions for contempt would be considered justifies a reversal and a new hearing. An order finding the alleged contemnor to be in contempt shall contain a finding that a prior order of support was entered, the alleged contemnor has failed to pay part or all of the support ordered, the alleged contemnor had the present ability to pay support, and the alleged contemnor wilfully failed to comply with the prior court order. The order shall contain a recital of the facts on which these findings are based. In this case, the trial court erred when it denied the Former Husband due process by ruling on motions that had not been noticed for hearing. The appeals court reversed.

Case:              Baker v. Baker
Court:             Fifth District Court of Appeal.
Trial Judge: Bob Leblanc.
Attorneys:
Issues:    Custody.

Holding:          To succeed on a petition for a change of custody, whether permanent or temporary, the petitioner must plead and prove, AND the trial court must find on the evidence, the following:

a) that a substantial change of circumstances occurred since entry of the previous custody order, which was not reasonably contemplated when the previous order was entered; and

b) the requested change of custody is in the best interests of the child.

If the first requirement is not met, the trial court need not address the second. A modification petition must be properly pled. Failure to plead properly is fatal, such that a modification order can be reversed on that basis by an appeals court. In this case, the trial court erred in temporarily changing custody because Former Wife failed to plead and prove a substantial change in circumstances since the previous custody determination and by modifying custody at a hearing that that was not properly noticed as being for a modification proceeding.

Case:              Maguire v. Wright
Court:             Fifth District Court of Appeal.
Trial Judge: Alan A. Dickey.
Attorneys:      Sarah H. Bolinder.
Issues:            Custody.

Holding: Florida statutes set out the factors a trial court must consider in creating a parenting plan that governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child. While separate findings as to each factor are not required to sustain a temporary award, the record must reflect that the custody determination was made in the best interest of the child. However, the appeals court has also specifically recognized a “true emergency” exception to the general rule, concluding that the normal burden on the party seeking custody to show that the custody transfer is in the child’s best interest need not be met when there is an improper removal of a minor child from the state. If a court grants permission for a parent to remove a child from the jurisdiction for a date specific, the child must be returned by that date, failing which the removal becomes improper. Based on the context in which the removal is granted, it can be construed to be an interlocutory order determining the right to custody. As such, the appeals court has jurisdiction under Florida Rules of Appellate Procedure. A further hearing may be necessary to resolve the issues of temporary shared parental responsibility and temporary timesharing in accordance with the relevant statutory criteria holding that the best interests of the child are paramount. In this case, the trial court did not err in granting temporary custody of the minor child to the Former Wife. The appeals court affirmed and remanded for an evidentiary hearing on temporary shared parental responsibility and temporary time-sharing.

Case:              Juchnowicz v. Juchnowicz
Court:             Second District Court of Appeal.
Trial Judge: Rochelle T. Curley.
Attorneys:      W. Russell Snyder, Susan J. Silverman, Cynthia L. Greene, Deborah J. Blue.
Issues:            Alimony.

Holding:     Permanent alimony is to allow the requesting spouse to maintain the standard of living established by the parties during the marriage. In viewing the totality of the circumstances, one spouse should not be "shortchanged." Each party's standard of living must come as close as possible to the prior lifestyle, given the available financial resources. An award of permanent alimony is reviewed pursuant to the abuse of discretion standard. An award of permanent periodic alimony typically terminates upon the death of the obligor. However, Florida statutes allows a trial court to order an alimony obligor to purchase or maintain a life insurance policy to the extent necessary to protect an award of alimony.

In this case, the trial court erred in making the alimony award without adequate consideration of the substantial income disparity between the parties. The award was not commensurate with the parties' marital standard of living and created a gross disparity. Nor was the award secured. The appeals court reversed the award of permanent periodic alimony and remanded for proceedings and to mandate the Husband to secure the alimony award with a life insurance policy.

Case:              Winton v. Saffer
Court:             Third District Court of Appeal.
Trial Judge: George A. Sarduy.
Attorneys:      Chantale L. Suttle, Holly A. Aliprandi, John B. Agnetti, Armand Murach
Issues:            Arrearages.

Holding: When considering a petition regarding arrearages, the trial court must make its findings based on substantial, competent evidence showing that the payor spouse failed to make support payments as required despite an apparent ability to do so. The record must discloses the calculations and evidence establishing the commencement of the arrearages, the total unpaid balance, and the computation of the purge amount. As to the purge amount, the court must make a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions. The amount itself must be supported by substantial, competent evidence. Relief exceeding the amount which is pled is impermissible.

In this case, the trial court erred when it awarded an amount in excess of the amount calculable on the record and which exceeded the amount recoverable, based on the Former Wife’s pleadings. While there was substantial, competent evidence to support the court’s findings that the Former Husband failed to make support payments as required, despite an apparent ability to do so, the record did not disclose the calculations and evidence establishing the commencement of the arrearages, the total unpaid balance, and the computation of the purge amount. The appeals court reversed in part and remanded for further proceedings.

Case:              P.C. v. D.C.F. and Guardian ad litem
Court:             Fourth District Court of Appeal.
Trial Judge: Kenneth L. Gillespie.
Attorneys:      Denise E. Kistner, Pamela Jo Bondi, Carolyn Schwarz.
Issues:            Parental Rights.

Holding: When considering the termination of parental rights, the court must do so on the basis of:

a) competent, substantial evidence of the grounds alleged by the Department of Children and Families under Florida statute;

b) upon making statutorily-required findings of fact and conclusions of law; and

c) ensuring that the termination of parental rights is not the least restrictive means to protect the child from harm.

The termination order should address which grounds form the basis for the termination.

In this case, the trial court erred in making the termination order which did not specify the grounds for the basis on termination in that competent, substantial evidence did not support one of the grounds alleged by the D.C.F. under Florida statute for termination. However, there was such evidence under the remaining allegations. The appeals court affirmed the termination of parental rights, but remanded with instructions to the court to amend the final judgment to indicate in its conclusions of law that the termination was based on the grounds alleged and substantiated.

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Florida Divorce & Family Law Update for the Week Ending January 11, 2015

January 12, 2015

Case:   Valdes v. Valdes
Court:             Second District Court of Appeal.
Trial Judge: Paul L. Huey.
Attorneys: Jose C. Gonzalez, Ingrid Anderson.
Issues:            Child Support.

Holding: Under Florida statute, the calculation of child support, and retroactive child support awards, requires attention be given to the parenting or time-sharing of children of the marriage. If a particular parenting plan, a court-ordered timesharing schedule, or a time-sharing arrangement exercised by agreement of the parties provides that each child spend a substantial amount of time with each parent, the court shall adjust any award of child support, in consideration of, among other things, the percentage of overnight stays the child spends with each parent and day care and health insurance costs. The support and retroactive support awards are calculated Using a particular formula under the statute. A trial court can consider the matter of a Former Spouse living rent-free during a certain period in determining sources of parental income or setting a child support amount—including to achieve an equitable result. In this case the trial court erred by incorrectly calculating child support. The matters were remanded for reconsideration and recalculation.

Case:              Jarrard v. Jarrard
Court:             Second District Court of Appeal.
Trial Judge: Nick Nazaretian.
Attorneys:      Kristal L. Knox, Jeffrey S. Sirmons, Eileen H. Griffin.
Issues:            Alimony.
Holding:         In petitioning the court for a modification of an award of alimony, the movant must establish there has been a sufficient, material, permanent and involuntary substantial change in circumstances that was not contemplated at the time of the final judgment of dissolution of marriage.

While the standard for an appellate court's review of a trial court's decision to modify alimony is often abuse of discretion, the issues arising during the adjudicatory process necessary to address the modification of alimony often involve standards of review other than abuse of discretion. The trial court makes findings of fact based on the evidence of the movant. The appeals court must review these essential findings of fact, both express and implied, to assure that they are supported by competent, substantial evidence. These are legal conclusions, not factual determinations, and they are reviewed by the appellate court under a type of de novo review that is actually the normal second step in a "mixed" review. In cases concerning modification or termination of alimony, this "mixed" standard applies to long-term marriages where an assessment of the supportive nature of the parties’ relationship is required. A mixed standard of review is actually performed by an appellate court as a sequence of two or more distinct reviews. Most commonly, the appellate court reviews the findings of fact to assure they are supported by competent, substantial evidence. Occasionally, the appellate court must review, de novo, the decision of the trial court as to applicable law. In so doing, the appellate court provides a modest presumption of correctness to the trial court because the issue usually involves a pure issue of law upon which the trial court has no greater insight than the appellate court. Finally, the appellate court reviews the trial court's legal conclusion, which was reached by the application of the law to the facts. The interrelationship between the findings of fact and the conclusions of law is what makes the standard of review "mixed." Thus, the trial court's legal conclusion is undoubtedly reviewed with a greater deference to the presumption that the trial court has made a correct ruling on the legal issue.

In this case, the trial court erred in finding that the Former Husband failed to meet his burden of proof that there was the required substantial change of circumstances that was permanent in nature regarding his income. In light of the inherent uncertainty in predicting future economic developments and given certain undisputed facts in this case, it was improper for the trial court to require the Former Husband to essentially prove his income would never increase again. The fact that Former Husband’s income had been reduced for a period of nearly two years already was sufficient evidence that the change was “permanent”. The trial court’s decision was reversed and remanded in order for a proper decision as to the nature and extent of the appropriate modification.

Case:               Chalmers v. Burrough
Court:             Third District Court of Appeal.
Trial Judge: Antonio E. Marin.
Attorneys:      Nancy A. Hass, Roger J. Schindler.
Issues: Child Support, Parenting.

Holding:          A trial court must make findings of fact, and its assessment as to the parenting responsibilities, in reliance of competent, substantial evidence. In this case, the trial court erred in making its order in the absence of competent substantial evidence to support a finding that shared parental responsibility would be detrimental to the child. The appeals court reversed and remanded for the trial court to clarify whether the supplemental final judgment maintained the parents’ shared parental responsibility.

Case:               Wiesenthal v. Wiesenthal
Court: Fourth District Court of Appeal.
Trial Judge: Susan Greenhawt.
Attorneys:      Douglas R. Bell, Tracy Belinda Newmark, Natalie Suzanne Kay.
Issues:            Child Support, Alimony, Attorney’s Fees, Contempt.

Holding:      Attorney’s Fees A trial court cannot award attorney’s fees without making findings as to one spouse’s ability to pay fees and the other spouse’s need to have the fees paid. The absence of such findings is generally fatal. In this case, the trial court erred in making an award of attorney’s fees at the modification proceedings in the absence of consideration of relevant evidence as to claims that the parties’ respective incomes had changed dramatically.

Contempt

Where the court imposes a contempt order and sets the conditions for purge of the contempt, the trial court’s order shall include both, a separate affirmative finding that the contemnor has the present ability to comply with the purge and the factual basis for that finding. Courts have characterized the rule as requiring the trial court to identify the source of payment for the purge amount. Further, a finding that a party divested himself of assets does not substitute for a finding of present ability to pay. Even a person who has wilfully or negligently divested himself or herself of the ability to pay money as ordered cannot be incarcerated for civil contempt when he or she does not then have the ability to effect a purge. In this case, the trial court erred in making the contempt order in the absence of the required sufficient evidence and factual findings that the payor wilfully and neglectfully failed to make the required payments. The appeals court reversed the contempt order and remanded both issues to the trial court, with directions to reconsider the issue after making specific factual findings regarding the parties’ net incomes and financial circumstances.

Case:             Wiesenthal v. Wiesenthal (2)
Court:            Fourth District Court of Appeal.
Trial Judge: Susan Greenhawt.
Attorneys:     Douglas R. Bell.
Issues:           Attorney’s Fees, Contempt.
Holding:    A trial court cannot award attorney’s fees without making findings as to one spouse’s ability to pay fees and the other spouse’s need to have the fees paid. An award of attorney’s fees, if improperly made, can be reversed where the order contains a finding that one party has the ability to pay, but does not make a finding of need on the part of the other party. Further, where an award is improper and requires reversal, a finding of contempt based upon such award must also be reversed.

Here, the prior attorney’s fee award underlying the prior contempt was the subject of the companion appeal in consolidated case numbers 4D11-3501, 4D11-4400 and 4D12-3515. In the consolidated appeal, the court reversed the fees award as it was not supported by the requisite factual findings regarding the parties’ respective financial circumstances and need and ability to pay. The reversal of the underlying fee award necessitated reversal of the prior contempt order to the extent it was predicated upon the failure to pay such fees.

In this, No. 4D12-2807, being an additional appeal to the consolidated appeal, above, the Former Husband challenged an order holding him in contempt for failing to pay both alimony and attorney’s fees previously awarded to the former wife and requiring him to pay additional attorney’s fees to the Former Wife. It was determined that the trial court erred in issuing the contempt order to the extent it was it was predicated on an errant finding in the court, below. The additional fees award to the Former Wife was deficient in that was not supported by the required factual findings. The matter of the additional attorney’s fees was remanded to the trial court, with directions that the trial court reconsider the issue after making specific factual findings regarding the parties’ net incomes and financial circumstances.

Case:              D.S-B. v. D.C.F.
Court:             Fourth District Court of Appeal.
Trial Judge: Moses Baker, Jr..
Attorneys:      Andrew A. Holness, Rosemarie Farrell, Patricia M. Propheter.
Issues:            Dependency, Procedure.

Holding:       In proceedings regarding the termination of parental rights, dependency and related matters, a trial court must make a determination that a parent has waived his or her right to counsel with an “intelligent and understanding choice,” as required by Florida statutory law. Specifically, where a parental party is self-represented, an order for dependency must be made after the parent provides a valid waiver of counsel. This may require the court, in certain situations, to delve into how the psychological or mental condition of a parent would affect his or her ability to validly waive counsel (ie: that is has been made “knowingly, intelligently, and voluntarily,”). In this case, the trial court erred in failing to make such inquiries when it allowed the Mother to proceed on her own. While the trial court queried her as to whether or not she had ever been adjudged incompetent or insane, the prior proceedings (including numerous legal counsel withdrawing for reasons related to client-counsel relationship), it failed to assess her mental health and other requisite circumstances as to her competence to proceed on her own. The trial court therefore failed to consider all of the factors relevant to whether she had made an intelligent and knowing choice to do so. The appeals court remanded for further proceedings and directed that if the Mother wished to represent herself, a hearing be conducted as to whether her waiver is knowing and intelligent.

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