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:              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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Case:               Horowitz v. Horowitz
Court:             Second District Court of Appeal.
Trial Judge: Jalal Harb.
Attorneys:      Rafael J. Echemendia.
Issues:            Injunction for Protection Against Domestic Violence.
Holding:         Cyberstalking is a form of domestic violence against which a person may
obtain an injunction. The petition for injunction must be supported by competent, substantial evidence. Florida law defines cyberstalking as engaging in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person,
causing substantial emotional distress to that person and serving no legitimate purpose.

Unlike email communication, posts to one's own Facebook page are not directed at a specific person but are instead posted for all of the user's Facebook "friends" to see, depending on a user's privacy settings. “Hacking” into a Facebook account is not cyberstalking at it is not an electronic communication. A Petitioner must also show sufficient emotional distress related to the conduct complained of.

In this case, the trial court erred in granting the petitioner an injunction against the Respondent for cyberstalking because there was insufficient evidence regarding the specific elements of the offence.

The Respondent’s Facebook posts were not "directed at a specific person". The evidence showed he had posted the questionable comments to his own Facebook page and the Petitioner was neither tagged nor identified. The pertinent allegations of the Respondent’s “hacking” into Petitioner’s account were insufficient insofar as hacking is not cyberstalking. Finally, although she testified that the posts were a concern, the Petitioner failed to establish she suffered substantial emotional distress as a result. The appeals court reversed.

Case:   A.S. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: Kathleen J. Kroll.
Attorneys:     Frank A. Kreidler, Rosemarie Farrell, Jorge Anton, Patricia M. Propheter.
Issues:           Termination of Parental Rights.

Holding:        Florida statutes establish that: a) the termination of parental rights because of abandonment must be based on clear and convincing evidence; b) a prospective parent cannot be determined to have abandoned his child until paternity is established; c) the DCF must make good faith efforts to reunification; and e) establish that termination is the least restrictive means of protecting a child from harm. Specifically, DCF must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child.   The trial court must make a specific inquiry when the identity or location of a parent is unknown and a petition for termination of parental rights has been filed. The trial court must direct the DCF to conduct a diligent search for the prospective parent if the prospective parent’s location is unknown. When such a search fails to locate a prospective parent, then DCF can proceed with a petition for termination of parental rights.

In this case, the trial court erred in ordering termination against the Father in the absence of clear and compelling evidence. The trial court erred further as it determined he abandoned the child based on inquiries of conduct prior to paternity being established. Finally the trial court erred in ordering termination when there was no evidence that reunification was not possible and that termination was the least restrictive means available to protect the child from harm.

Case:              Ledoux-Nottingham v. Downs
Court: Fifth District Court of Appeal.
Trial Judge: Bob LeBlanc.
Attorneys: Jamie Billotte Moses, Leigh Anne Miller, Andrew T. Windle.
Issues:            Grandparent Visitation, Attorney’s Fees.
Holding:         Jurisdiction

A Florida court shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this part or the determination was made under factual circumstances meeting the jurisdictional standards of Florida laws. In this case, trial court did not err when it enforced the Colorado order determining visitation for the Grandparents after the Mother moved from Colorado to Florida. Since the Colorado order was a final judgment and emanated from a “child custody proceeding” within the meaning of Florida Statutes (2013), it became enforceable in Florida pursuant to the Full Faith and Credit Clause. Accordingly, the trial courts was required, without discretion, to give recognition to final judgments of another state.

Modification

A party seeking modification of a time-sharing schedule has the burden of proving (1) a substantial and material change in circumstances, and (2) that the best interests of the child will be promoted by such modification. The substantial and material change in circumstances must have occurred subsequent to the last order addressing time-sharing.    In this case, the trial court properly determined that there had not been a substantial and material change in circumstances during the 13 days between the entry of the Colorado order and the filing of Mother’s petition.

Make-Up Visitation

In such circumstances, a trial court is not necessarily precluded from ordering make-up visitation. On remand, the trial court was directed to promptly address the Grandparents’ motion for make-up visitation.

Attorney’s Fees

Florida States (2013) provides that if a court has personal jurisdiction over the party against whom attorney’s fees are being assessed, the court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including attorney’s fees unless the party from whom fees are sought establishes that the award is clearly inappropriate. In this case, the trial court erred in summarily denying the Grandparents’ request for attorney’s fees, because it did not consider whether assessing attorney’s fees against Mother would be “clearly inappropriate.” On remand, the trial court was directed to make specific findings as to the entitlement to attorney’s fees.

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