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 and Family Law Update for Week Ending August 28, 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:             Steele, Jr. v. Prince 
Court:            First District Court of Appeal.
Trial Judge:   Jonathan E. Sjostrom.
Attorneys:     Joseph Robert Boyd, Jr..
Issues:           Timesharing.

Holding:        The trial court’s interpretation of a mediation agreement is reviewed according to the de novo review standard. The interpretation of such agreements is subject to contract law principles. The language in a mediation agreement should be given its plain meaning and not be disturbed unless found to be ambiguous or in need of clarification, modification, or interpretation. In this case, the trial court erred in its interpretation of a mediation agreement governing the Father’s timesharing rights. The magistrate failed to give the language of the mediation agreement its plain meaning. By its terms, the agreement made the third weekend of the month a default period for timesharing, regardless of whether notice is provided. The appeals court reversed.

Case:             Rogers v. Wiggins
Court:            Second District Court of Appeal.
Trial Judge:   Jack Helinger.
Attorneys:     John A. Smitten, Jane H. Grossman.
Issues:           Attorney’s Fees.

Holding:         Florida Statutes permit a trial court to order a party in a child custody case to pay a reasonable amount for attorney's fees after considering the financial resources of both parties. The financial resources of the parties are the primary factor to be considered. However, other relevant factors to be considered include the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation. In this case, the trial court erred in its consideration of the statutory factors regarding modification of child custody. Specifically, its order made a finding that the Mother had the ability to pay the fee award, but the court's factual finding that the mother had no income and no assets. The record contradicted the court’s conclusion that she had the ability to pay. The appeals court reversed.

Case:             Shaver v. Shaver
Court:            Second District Court of Appeal.
Trial Judge:   Susan Gardner.
Attorneys:     Jane H. Grossman, Allison M. Perry.
Issues:           Alimony, Equitable Distribution.

Holding:        Alimony

Four steps are involved in a trial court's alimony decision-making process: the trial court must determine: (1) a party's need for support; (2) the other party's ability to pay; (3) the type of alimony or the types of alimony appropriate in the case; and (4) the amount of alimony to award. An order or award must be reversed where a final judgment is inconsistent with a trial court's oral pronouncement. In this case, the trial court erred as the written judgment was inconsistent with its oral pronouncement. Specifically, the final judgment awarded the Former Wife one year of rehabilitative alimony followed by four years of durational alimony but the oral judgment awarded one year of rehabilitative alimony followed by five years of durational alimony. Further, the written judgment failed to include a provision requiring the Former Husband to pay for the Former Wife's education expenses when the trial court orally ruled that he needed to pay for the rest of her education. The trial court failed to rely on competent, substantial evidence in making its determination and further declined to state a specific amount of alimony awarded and asked the Former Wife to come up with possible scenarios to show her need. The appeals court reversed.

Equitable Distribution

An award of equitable distribution is reversed and remanded to the lower court because of inconsistencies on the face of the judgment and because certain of the findings are not supported by the record. In this case, the trial court adopted the Former Wife's proposed equitable distribution schedule and found that her valuation of the marital assets was supported by competent, substantial evidence. But, like the alimony scenario, the trial court left it to the parties to submit a proposed equitable distribution scheme. It made no findings of fact based on competent, substantial evidence in awarding a distribution of assets and making findings that certain assets should be excluded from equitable distribution altogether. The appeals court reversed and remanded.

Case:             J.C.O. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge:   Martin Zilber.
Attorneys:     Eugene F. Zenobi, Kevin Coyle Colbert, Karla Perkins, Laura J. Lee (Sanford).
Issues:           Dependency.

Holding:        Where an adjudication of dependency is based entirely on inadmissible hearsay, or where the trial court necessarily relied on inadmissible hearsay, it must be reversed. Parents have a right to counsel. In this case, the trial court erred when it declined the Father, who lives in Nicaragua, a right to fair notice and to properly present evidence. Specifically, the Father argued he was not properly served with notice of the proceedings. While in hearing, the trial court had the Father’s legal counsel removed from the courtroom, and continued to hear argument from the Department on the procedural (service) issue, relying on the Case Manager’s testimony that she heard the Father admit he had received the notice, to make its decision. In the circumstances the Father was not allowed to appear and the evidence of the Case Manager was inadmissible hearsay. The appeals court reversed.

Case:             Ridings v. Ridings
Court:            Fourth District Court of Appeal.
Trial Judge:   Jessica Ticktin.
Attorneys:     Irene Annunziata, Angelica Del Vecchio.
Issues:           Alimony, Equitable Distribution, Attorney’s Fees.

Holding:        When distributing marital liabilities, a trial court should include both identification of the liabilities and designation of which Former Spouse shall be responsible for payment of the liability. It is reversible error for a trial court to simply indicate that marital liabilities are to be equally divided without identifying each specific liability and without identifying which spouse is responsible for each. In this case, the trial court erred as the final judgment awarded a distribution of marital liabilities which failed to identify the liability and which Former Spouse was responsible for paying it. The appeals court reversed.  

Case:             Mitchell v. Mitchell
Court:            Fourth District Court of Appeal.
Trial Judge:   Tim Bailey.
Attorneys:     Jason B. Blank, Michael J. Dunleavy.
Issues:           Injunction for Protection Against Domestic Violence.

Holding:         A trial court abuses its discretion by entering a domestic violence injunction when the ruling is not supported by competent, substantial evidence. Florida Statutes (2015), create a cause of action for an injunction for protection against domestic violence on behalf of a family or household member who has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence. The danger feared must be imminent and the rationale for the fear must be objectively reasonable. General harassment does not suffice. Nor does verbal violence, mental instability, a bad temper, depressive and suicidal statements, angry messages, vague actions, or general conditional future threats without overt action implying imminence. In determining whether the petitioner's fear is reasonable, the trial court must consider the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole. In this case, the trial court mischaracterized the law. Specifically, in granting the Former Wife’s request for an injunction, the trial court explained that the question is whether there is there behavior on the part of one party that “scares” the other. on your part that scares her?” The trial court then found credible the Former Wife’s testimony that the Former Husband’s text messages were scaring her. However, the trial court’s characterization of the law was incorrect. The question should be whether the Former Wife’s fear was objectively reasonable. Further, the trial court was required to conduct a close examination of the record, the text messages, and the surrounding context, to make a determination on the facts whether it was objectively reasonable for the Former Wife to have a fear for her own safety. On the fact, the Former Husband’s text messages contained no overt (or implicit) threats to the Former Wife. The appeals court reversed.

Case:             Colino v. Colino
Court:            Fifth District Court of Appeal.
Trial Judge:   Michael S. Orfinger.
Attorneys:     Brett Hartley, Donald Appignani.
Issues:           Equitable Distribution, Alimony.

Holding:        Equitable Distribution

A trial court’s interpretation of a prenuptial agreement is reviewed de novo, as such agreements are governed by the law of contracts. Where a contract is clear and unambiguous, it must be enforced pursuant to its plain language.  In this case, the trial court misinterpreted the parties’ prenuptial agreement when it awarded to the Former Wife certain real property purchased by the Former Husband, transferred to the Former Wife which she later transferred back to the Former Husband by quitclaim. Specifically, the prenuptial agreement permitted her, as an owner of separate property, to dispose of such property by gift, sale or transfer. When the Former Wife obtained the property by transfer, it became her separate property. She then transferred it to the Former Husband and the series of transactions was consistent with the terms of the prenuptial agreement. She transferred the property to the Former Husband, it belonged to him and remained his separate property when he filed his petition for dissolution of marriage. Furthermore, the prenuptial agreement expressly provided that neither party would make any claim or demand on the separate property of the other party. Since neither party attempted to vacate or rescind the prenuptial agreement, the trial court was obligated to enforce its clear terms and distribute the property to Former Husband. The appeals court reversed.  


Trial courts, in dissolution of marriage cases, possess broad discretionary authority with various remedies available to do equity and justice between the parties. In this case, the trial court erred when, while it recognized that, based upon the length of the parties’ marriage and the terms of the prenuptial agreement, an award of alimony was permissible. Further, the trial court found that Former Wife demonstrated a need for alimony but elected not to award alimony to her due, in part, to its equitable distribution of the parties’ assets. Given the appeals court’s decision to reverse on the equitable distribution, the appeals court directed the trial court to reconsider and receive evidence on support.

About DivorceCourtAppeals.com and Bruce Law Firm, P.A.

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.