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 Update for Week Ending October 2, 2016

October 5, 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:             Koch v. Koch
Court:            First District Court of Appeal.
Trial Judge: Stanley H. Griffis, III.
Attorneys:     S. Scott Walker.
Issues:           Parenting.

Holding: Restrictions upon a noncustodial parent’s right to expose his or her child to his or her religious beliefs have consistently been overturned in the absence of a clear, affirmative showing that the religious activities at issue will be harmful to the child. However, Florida Statutes (2015) requires Florida courts to determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child. Religiously-motivated behavior with an impact on a child’s welfare cannot be ignored. The welfare and best interests of the children must prevail. In this case, the trial court did not err in restricting parenting and timesharing of the parties’ children and, in particular, in its injunction of the Father discussing any religious matters with his children during visitation, as he used religion against the Mother. The Father’s use and/or leverage of religious views was abusive to the children. The appeals court affirmed.

Case:             T.M. v. D.C.F.
Court:   Second District Court of Appeal.
Trial Judge: James V. Pierce.
Attorneys:   Ita M. Neymotin, David C. Chafin, Bernie McCabe, Leslie M. Layne.
Issues: Guardianship, Supervision.

Holding: Florida Statutes (2015) require a trial court placing child in a permanent guardianship to make specific considerations as to the child, the placement and the permanent guardian(s). The trial court’s order must be written and specify why the child's parents are not fit to care for the child and why reunification is not possible by referring to specific findings of fact. It must also give reasons why, among other things, a permanent guardianship is being established instead of adoption; specify the frequency and nature of visitation or contact between the child and his or her parents, grandparents and his or her siblings and order the permanent guardian not to return the child to the parent’s physical care and custody without the approval of the court. In this case, the trial court erred as its order placing the Mother’s children in permanent guardianship failed to make the findings required by law. Specifically, the trial court's order made no specific findings as to why the Mother was not fit to care for her children; why reunification was not possible; why the court ordered permanent guardianship rather than adoption; and it failed to order the permanent guardian not to return the children to her physical care and custody without approval of the court. The trial court did not conduct an evidentiary hearing on the motion for permanent guardianship and did not have before it competent and substantial evidence to support the findings. The appeals court reversed and remanded.

Case:             M.S. v. D.C.F.
Court:            Second District Court of Appeal.
Trial Judge: Emily A. Peacock.
Attorneys:    Scott L. Robbins, Pamela Jo Bondi, Christopher Lumpkin, Mary Soorus, Laura E. Lawson.
Issues:            Termination.

Holding: Florida Statutes (2014) provide that grounds for termination of parental rights may be established when the parent or parents engaged in conduct toward the child (or other children) that demonstrates continuing the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child. Florida Statutes also permits termination based upon incarceration if the court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and that termination is in the child's best interest. The trial court must consider to assist it with this determination: a. The age of the child. b. The relationship between the child and the parent. c. The nature of the parent's current and past provision for the child's developmental, cognitive, psychological, and physical needs. d. The parent's history of criminal behavior, which may include the frequency of incarceration and the unavailability of the parent to the child due to incarceration. e. Any other factor the court deems relevant. In this case, the trial court did not err in its denial of the Mother’s motion seeking a new adjudicatory hearing based upon the alleged ineffective assistance of her court appointed counsel. Although 4 of the 5 grounds found by the trial court for termination were not supported by competent, substantial evidence, the trial court was correct in its finding that it would be harmful to the child to continue the relationship with the Mother, an incarcerated parent, under Florida Statutes (2014). The appeals court affirmed.

Case:             Guerra v. Guerra
Court:            Second District Court of Appeal.
Trial Judge: Mary C. Evans.
Attorneys:     Lisa P. Kirby.
Issues:           Attorney’s Fees.

Holding: It is error for a trial court to make prospective determinations purporting to decide whether support obligations will be dischargeable in bankruptcy. In this case, the trial court erred when it included in its order a provision characterizing the award of attorney's fees and costs as a form of support not dischargeable in bankruptcy or by any other means. The entry of the award was appropriate on the facts, but prospective determinations purporting to decide whether support obligations will be dischargeable in bankruptcy are improper. The appeals court reversed the relevant portion of the order and remanded.

Case:             N.G. v. D.C.F.
Court:            Fifth District Court of Appeal.
Trial Judge: Timothy R. Shea.
Attorneys:     David B. Falstad, Rosemarie Farrell, Richard S. Dellinger.
Issues:           Termination.

Holding: If a trial court terminates parental rights, it shall enter a written order of disposition briefly stating the facts upon which its decision to terminate the parental rights is made. In this case, the trial court erred as the final judgment terminating the Mother’s parental rights did not contain the findings of fact required by law. The appeals court reversed and remanded.

Case:             B.R. v. D.C.F.
Court:            Fifth District Court of Appeal.
Trial Judge: Timothy R. Shea.
Attorneys:     Aaron S. Baghdadi, Rosemarie Farrell, Richard S. Dellinger.
Issues:           Termination.

Case:             Coleman v. Bland
Court:            Fifth District Court of Appeal.
Trial Judge: Sally D.M. Kest.
Attorneys:     Carlton Pierce.
Issues:           Equitable Division, Attorney’s Fees.

Holding: Equitable Distribution

In this case, the trial court did not err when it denied the Former Wife’s claims regarding the Former Husband’s pension, and prior appeals had resolved the matter. Specifically, the trial court was correct as the Former Wife’s claims were: (1) barred by res judicata as they could have been raised in a prior appeal; (2) beyond the scope of remand on a prior appeal; (3) beyond the scope of the pleadings; and (4) lacked justification or supporting evidence. The appeals court affirmed.

Attorney’s Fees

The trial court erred in finding that the Former Husband was unable to pay appellate attorney’s fees. This finding contradicted its prior attorney’s fee award without any additional evidence or hearing. It was also unsupported by the record showing a large disparity in the parties’ incomes and the fact that the Former Wife prevailed on the significant issue on appeal and filed a timely motion for costs. The appeals court reversed and remanded.

Case:             D.R. & D.C.F. v. J.R., S.R., D.R. & G.A.L.
Court:            Fifth District Court of Appeal.
Trial Judge: Susan W. Stacy.
Attorneys:   H. Kyle Fletcher, Jr., Rosemarie Farrell, Eddie J. Bell, Heather Morcroft, Sara E. Goldfarb.
Issues:            Dependency, Guardianship.

Holding: The standard of review for a question of law in dependency proceedings is de novo. The Interstate Compact on the Placement of Children (ICPC) applies to out-of-state placements with natural parents. The ICPC was to ensure that a child is placed in a suitable environment. Once a court has legal custody of a child, it would be negligent to relinquish that child to an out-of-state parent without some indication that the parent is able to care for the child appropriately. In this case, the trial court erred in failing to comply with the requirements of the ICPC when it placed two of the parties’ minor children in the Father's custody (removing them from the Mother’s custody after issues of violence and abuse), in Massachusetts, without complying with the ICPC. However, the children were not required to be immediately returned to Florida. The appeals court reversed the portion of the final order terminating the trial court’s jurisdiction and remanded with instructions for the trial court to determine whether it would be in the children’s best interest for them to remain in the father's custody pending the completion of the ICPC process.

Case:             Clemens v. Clemens
Court:            Fifth District Court of Appeal.
Trial Judge: Dawn D. Nichols.
Attorneys:      Mark A. Skipper.
Issues:            Alimony.

Holding: Permanent alimony is used to provide for the needs and necessities of life for a former spouse as they were established during the marriage of the parties. For long-term marriages, an initial presumption in favor of permanent alimony exists. The can be rebutted by sufficient evidence. In this case, the trial court did not err in its denial of the Former Wife’s rehabilitative alimony. However, the trial court erred (abused its discretion) in denying her permanent alimony, specifically, when it found that she did not have a need for alimony based on the figures set forth in her most recent financial affidavit (based on her current living arrangements, where she was renting a single room in a friend’s residence). The trial court should have considered the necessities as they were established during the marriage of the parties. Further, as this was a long term marriage (19 years), there was an initial presumption of permanent alimony which the Former Husband did not rebut on the evidence. The appeals court reversed and remanded.

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Florida Divorce and Family Update for Week Ending September 4, 2016

September 7, 2016

Case:             Sweeney v. Sweeney
Court:            Second District Court of Appeal.
Trial Judge: G. Keith Cary.
Attorneys:     Luis E. Insignares, Rana Holz.
Issues:           Equitable Distribution.

Holding: In this case, the trial court erred in awarding an excessive credit to the Former Wife for tax payments she made on real estate commissions that were divided in equitable distribution. Specifically, the trial court erred in crediting her for taxes she paid on the marital commissions when it had already allowed her to deduct a cash amount for the same marital taxes. The appeals court reversed and remanded.

Case:             D.C.F. v. M.N. and O.C.S.
Court:            Third District Court of Appeal.
Trial Judge: Martin Zilber.
Attorneys:     Karla Perkins, Eugene F. Zenobi, Kevin Coyle Colbert.
Issues:           Dependency.

Holding: Determinations regarding the transfer of a case to another jurisdiction based on the “inconvenient forum” provisions of the UCCJEA are a matter of the trial court’s discretion. Once the DCF commenced the dependency proceedings in the children’s home state, the trial court had continuing jurisdiction under the statute. That jurisdiction carries with it the duty to ensure that the best interests of the children are advanced; a duty that exists during dependency proceedings, and continues through adoption proceedings. This duty exists to carry out the legislature’s goal that all dependency proceedings are to seek to achieve permanency for the children. A Florida trial court does have the ability to transfer a case when it determines that another forum is more convenient. In this case, the trial court erred in ordering termination of the DCF’s supervision over two minor children and closing the file. Specifically, the record established that the trial court acquired, and had continuing, jurisdiction over the case and children because Florida was the children’s home state under the UCCJEA. (The older child had lived in Florida for 6 consecutive months, and the infant child been born there). As the DCF commenced proceedings in Florida, the home state, the trial court had continuing jurisdiction under the statute. Its dismissal without the children having reached permanency was improper. While the trial court concluded that the children were in Puerto Rico and the parents could not be located in Florida a “transfer” of the case to Puerto Rico was warranted. The trial court was required to comply with certain statutory factors and make the necessary statutory findings, which it failed to do. The appeals court reversed and remanded.

Case:             Medina v. Haddad
Court:            Third District Court of Appeal.
Trial Judge: Marcia B. Caballero.
Attorneys:     Theodore H. Uno, Lauren M. Alperstein, Stephanie Matalo.
Issues:           Timesharing.

Holding: In this case, the trial court erred when it failed to comply with Florida Rules of Civil Procedure and Family Law Rules when ordering a child undergo a compulsory psychological evaluation. Specifically, although the trial court attempted to characterize what was effectively a psychological evaluation as a “therapeutic consultation,” the Mother was required to comply with Florida Rules of Civil Procedure and Family Law Rules and prove that the child’s mental condition was “in controversy” in the litigation; and “good cause” existed for the compulsory psychological evaluation. As the Mother was not able to establish either, the appeals court quashed the trial court’s order.

Case:             Schufelt v. Schufelt
Court:            Fifth District Court of Appeal.
Trial Judge: Edward J. Richardson.
Attorneys:     Elizabeth Siano Harris.
Issues:           Equitable Distribution.

Holding: Generally, when a party submits a proposed final judgment, it is error for a trial court to enter the judgment without providing the other party an opportunity to review the proposed judgment and make objections. Such issues raise questions of fairness and are subject to appellate review. An appellant bears the onus of demonstrating reversible error. An alleged defect must be brought to the trial court's attention by the timely filing of a motion for rehearing which raises issue or arguments regarding the alleged unequal distribution. In this case, the Appellant (Former Husband) was required to demonstrate reversible error but failed as there was no sufficient record of the hearing on point. As such, he could not show that the trial court's oral findings at the hearing was not supported by competent substantial evidence. Further, while the trial court's findings of fact in the final judgment were inadequate to support the unequal distribution of this marital asset, the Former Husband’s motion was not filed on time. Even if it were, he raised no issue or argument in the motion regarding the trial court's unequal distribution of the marital home. He failed to preserve the key issue for appellate review. The appeals court affirmed.

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Florida Divorce and Family Law Update for Week Ending August 28, 2016

September 1, 2016

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.

Alimony

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.

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Florida Divorce and Family Law Update for Week Ending August 14, 2016

August 17, 2016

Case:             Donovan v. Donovan
Court:            First District Court of Appeal.
Trial Judge: John "Jay" Gontarek.
Attorneys:     Michael T. Webster, E. Jane Brehany, R. Stan Peeler.
Issues:           Alimony.

Holding: A trial court can explicitly state that it “retains jurisdiction to enter whatever other orders which may be required,” including for modification. A nominal award of alimony preserves the trial court’s jurisdiction to revisit the matter in the future. In this case, the trial court did not err when it entered a nominal alimony award to retain jurisdiction, but that was not necessary to do because jurisdiction was already retained when the court stated so. The appeals court affirmed.

Case:            Chandler v. Kibbie
Court:            First District Court of Appeal.
Trial Judge: Elizabeth A. Senterfitt.
Attorneys:     Samuel S. Jacobson, Renae J. Kenny.
Issues:           Attorney’s Fees.

Holding: In making an award of attorney’s fees, a trial court shall make factual findings regarding the total number of hours expended by the party’s attorney, the hourly rate, and the reasonableness of the fee. In this case, the trial court erred in failing to make certain findings relating to the reasonableness of the award. The appeals court reversed.

Case:             Palmer v. Palmer
Court:            First District Court of Appeal.
Trial Judge: John Miller, David Rimmer.
Attorneys:     Ross A. Keene, Kim Anthony Skievaski.
Issues:           Attorney’s Fees.

Holding: Under Florida Statutes (2011), the court may, after considering various factors, including the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees. The financial resources of the parties are the primary factor to be considered, but the other relevant circumstances include the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation was brought or maintained primarily to harass (or whether a defense was raised mainly to frustrate or stall); and the existence and course of prior or pending litigation. There is no authority for denying fees solely based on the failure to accept an offer of settlement. In this case, the trial court erred when it declined to award attorney’s fees to the Former Wife because she rejected an offer of settlement. The court misapplied the law. The court should only exercise the power to reduce fees when it would be inequitable not to do so after a review of all circumstances. The appeals court reversed and remanded to the trial court to re-address fees evaluating all pertinent considerations and not just the rejection of the settlement offer.

Case:             Ngyuen v. Ngyuen
Court:            First District Court of Appeal.
Trial Judge: Linda F. McCallum.
Attorneys:     Beth M. Terry, Carin E. Maxey.
Issues:           Equitable Distribution.

Holding: A trial court’s ruling on equitable distribution is reviewed for an abuse of discretion. An appellate court must determine whether the trial court’s order is supported by competent, substantial evidence. A trial court errs in attributing gross rental income to a party when evidence of expenses is present. In this case, the trial court erred in its allocation of rental income in devising an equitable distribution scheme which failed to account for the record evidence of expenses associated with the properties (including mortgage payments). The appeals court reversed and remanded.

Case:              N.A.G. v. J.L.G.
Court:            Second District Court of Appeal.
Trial Judge: Patrice W. Moore.
Attorneys:     Deborah L. Thomson, Ingrid Anderson.
Issues:           Parental Rights.

Holding: Florida Statute defines abandonment as, “a situation in which the parent or person having legal custody of a child, while being able, makes little or no provision for the child's support or makes little or no effort to communicate with the child, which situation is sufficient to evince an intent to reject parental responsibilities.” Abandonment is absolute, complete, and intentional and must be established by clear and convincing evidence. Termination may not be based on involuntary abandonment. In this case, the trial court incorrectly found that the Mother abandoned her children. Specifically, the trial court erred as a matter of law when it failed to rely on record evidence to support the finding of abandonment. It further erred by misapplying the statutory definition of abandonment. In particular, the evidence was not legally sufficient to support a finding that the Mother's actions evinced a settled purpose to forgo and relinquish all parental responsibilities. The appeals court reversed.

Case:             Loza v. Marin
Court:            Second District Court of Appeal.
Trial Judge: Catherine L. Combee.
Attorneys:     Javier D. Alvarez, Jean Marie Henne.
Issues:           Child Support.

Holding: Generally, the legal duty of a parent to support his or her child ceases at the age of majority. Child support orders terminate upon a child reaching majority, unless statutory exceptions apply or the parties agree otherwise. While a child support order is in force, a court has continuing jurisdiction to modify under a variety of circumstances but only during the period provided for support. Florida courts have grappled with whether or not a petition may be used to extend support for an incapacitated child beyond the age of majority even if the petition has been filed after the support obligation has terminated. The crucial issue is whether a child's continuing dependence was adjudicated before the child reached the age of majority. In this case, the trial court erred in denying the Former Husband’s petition to modify child support and the allowance of the Former Wife's counter-petition for modification of child support. The Former Wife’s counter-petition was untimely as it was made after the child turned 18 and after the parties’ MSA. As such, the trial court lacked jurisdiction to extend the Former Husband's child support obligation beyond the dependent child's eighteenth birthday. The appeals court reversed and remanded.

Case:             J.P. v. V.P.
Court:            Fourth District Court of Appeal.
Trial Judge: James L. Martz.
Attorneys:     Andrew A. Holness, Marie Calla Quartell.
Issues:           Child Support.

Holding: A post-disposition order that failed to comply with Florida Rules of Juvenile Procedure as to contents of fact and law may be remanded for the trial court to make such necessary findings. In this case, the trial court erred in an order with implemented a visitation schedule that did not contain specific findings of fact and conclusions of law as required by Florida Rules of Juvenile Procedure. The appeals court remanded.

Case:             Beckford v. Drogan
Court:            Fourth District Court of Appeal.
Trial Judge: Karen M. Miller.
Attorneys:     Rhea P. Grossman, Lydia A. Worden, Celia E. Henry.
Issues:           Paternity.

Holding: Under Florida Statutes, the plaintiff in for a paternity action has a choice of venue and the defendant must prove that the venue selection is improper. A party may have commenced proceedings for one issue in one venue and the other party for a different issue in another. The rules endorse the principle of placing related matters before the same family court judge unless impractical. It is then up to the courts to determine the application of rules and venue. In this case, the trial court did not err when it determined that the Mother did not establish that the Father’s venue choice was improper and maintained the venue on the issue of paternity, even though she had already commenced child support proceedings at another. The appeals court affirmed the order but without prejudice to the court considering a transfer based upon the convenience of the parties and witness, or to unify the proceedings with respect to the child, pending in two different counties.

Case:             Palmer, Jr. v. Palmer
Court:            Fifth District Court of Appeal.
Trial Judge: Kellie J. Miles.
Attorneys:     Therese M. Truelove, Douglas A. Kneller, Steven J. Guardiano.
Issues:            Alimony.

Holding: An order requiring a spouse to obtain a life insurance policy as security for an alimony award must be supported by record evidence, and the order must include findings as to the cost of insurance and any special circumstances justifying the need for the policy. Failure to make specific findings to support the award is reversible error. In this case, the trial court erred in not making the requisite findings. Other than the Former Wife’s request for insurance in her initial petition, the record was devoid of any testimony or evidence regarding a policy or any special circumstances justifying its requirement. The appeals court reversed and remanded for the trial court to make sufficient findings of fact to support the award or remove the insurance requirement from its order.

Case:             Gross v. Zimmerman
Court:            Fourth District Court of Appeal.
Trial Judge: Lisa S. Small.
Attorneys:     Cynthia L. Greene, Tracy Belinda Newmark, Natalie Suzanne Kay.
Issues:           Child Support, Paternity.

Holding: The standard of review for a child support award is abuse of discretion. A court will begin its consideration of child support awards with the statutory child support guideline amounts. The guidelines presumptively establish the amount of awards in an initial proceeding or in a proceeding for modification. The trier of fact may also make an award which varies, plus or minus 5%, from the guideline amount, after considering all relevant factors, including the needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent, only upon a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate. In this case, the trial court did not err in its denial of the Father’s downward deviation from the guideline child support amount since he did not demonstrate reversible error in the trial court’s decision. Nor did it err in failing to order him to order child care costs, temporary support or attorney’s fees as the Mother either failed to provide sufficient evidence. The appeals court affirmed on those points. The trial court erred, however, when it abused its discretion by imposing, in a parenting plan, an additional financial obligation requiring the Father to pay almost all of the child’s extracurricular activities, over and above the maximum amount of child support, where there was no record support for the inclusion of this additional financial obligation. Specifically, there was no evidence that the child was involved in any extracurricular activities, and the trial court’s open-ended award could subject the Father to the expense of any extracurricular activity in which the Mother may involve the child without any input by the Father or regard as to its cost. The appeals court reversed.

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Florida Divorce and Family Law Update for 2 Weeks Ending August 7, 2016

August 9, 2016

Case:             J.P. v. D.P, D.C.F. & Guardian ad Litem Program
Court:            First District Court of Appeal.
Trial Judge: Karen A. Gievers.
Attorneys:     M. Linville Atkins, Mike Donovan, Kelley Schaeffer.
Issues:            Parenting, Custody.

Holding: A trial court has broad discretion in ordering timesharing, and its decision should be affirmed if it is supported by competent, substantial evidence and is not an abuse of discretion. The proper review of a petition for relocation entails a best-interests determination at the time of the final hearing. In this case, the trial court erred in rendering a final judgment establishing a parenting plan that would require the six-year-old minor child to move over 300 miles away to live with the Mother when the child begins middle school, when the prospective change in residence was unsupported by the record and contrary to the court’s finding that living with the Father was in the child’s best interests. A prospective-based analysis that purports to determine that a change in residence will be in the child’s best interests approximately 5 years in the future is impermissible. The court further erred in imposing a change in residence when it was not requested by either parent nor addressed at the hearing. This violated the Father’s due process rights. The appeals court reversed.

Case:             Adkins v. Sotolongo
Court:            Third District Court of Appeal.
Trial Judge: Pedro P. Echarte, Jr..
Attorneys:
Issues:            Guardian at Litem Fees.

Holding: In this case, the trial court erred in granting the motion of the Guardian ad Litem (GAL) to compel payment of her fees in the absence of an order specifying the parties' income, the basis for a modified support amount, or any justification for a departure from the guidelines. Specifically, the trial court ordered the Father to divert a portion of his child support payment directly to the GAL for payment of her fees and pay the remainder to the Mother. It also amended its order regarding the Father’s payments to the central depository. The parties failed to arrange for a recording of hearings on the GAL’s motion, so appellate review was limited to errors on the face of the order. The appeals court reversed and remanded.

Case:             Jackson v. Jackson
Court:            Third District Court of Appeal.
Trial Judge: Antonio Marin.
Attorneys:     Ilene F. Tuckfield, Hegel Laurent.
Issues:            Child Support, Parenting, Alimony, Equitable Distribution, Attorney’s Fees.

Holding: This was a motion for clarification by the Former Husband regarding an appellate opinion dated June 22, 2016. The appeals court granted the motion, withdrew the opinion and substituted the following: where the appellant, through no fault of his own, has been unable to provide this court with a transcript of the final hearing below, and the parties and the trial court have been unable to reconstruct the record, we are compelled to summarily reverse for a new trial.

Case:             Dickson v. Dickson
Court:            Fourth District Court of Appeal.
Trial Judge: Laurie E. Buchanan.
Attorneys:     Leanne L. Ohle.
Issues:           Child Support, Alimony.

Holding:        Alimony

An award of alimony will not be reversed absent an abuse of discretion. A trial court abuses its discretion when it fails to award retroactive support from the date of the filing of a petition for dissolution of marriage where there is a need for child support and an ability to pay. Florida Statutes (2013), governs alimony and provides: (1) for bridge-the-gap, rehabilitative, durational, or permanent alimony (or any combination); (2) periodic payments, lump sum or both; and (3) will consider factors including the duration of the marriage, the age of the parties, their financial resources and earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment. For long-term marriages (17 or more years), there is a rebuttable presumption in favor of permanent alimony. A spouse’s age is not a valid basis to deny permanent alimony absent evidence that the spouse’s youth would allow her or him to earn income sufficient to support a life-style consistent with that enjoyed during the marriage.

In this case, the trial court erred in awarding bridge-the-gap instead of permanent alimony to a Former Wife, aged 42, after a 19-year marriage, who was furthering her education and had no source of income. Although the amended final judgment provides that the trial court considered the statutory factors governing the award of alimony, it was apparent from the hearing transcript that the trial judge did not have the relevant information before it to consider all statutory factors. Additionally, the court’s findings were insufficient to overcome the presumption in favor of permanent alimony. Further, the trial court’s statements during the hearing indicated that the court misapplied the law regarding the Former Wife’s age. Further, the trial court erred in finding that bridge-the-gap alimony was appropriate when bridge-the-gap alimony serves to assist a spouse already capable of self-support during the transition from being married to being single.

Child Support

Under Florida Statutes (2013), in an initial determination of child support, the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition. Factors that the court must consider in determining retroactive child support, include the need and the ability to pay of the respective parents and all actual payments made by a parent to the other parent or the child or third parties for the benefit of the child throughout the proposed retroactive period. In this case, the trial court erred in not considering an award of retroactive child support.

The appeals court reversed and remanded.

Case:             Jordan v. Jordan
Court:            Fourth District Court of Appeal.
Trial Judge: Alfred J. Horowitz.
Attorneys:     Nancy A. Hass.
Issues:           Equitable Distribution, Alimony, Attorney’s Fees.

Holding: An appeals court reviews final judgments of dissolution for an abuse of discretion. This is a review of a remanded decision.

Equitable Distribution

Under Florida Statutes, the distribution of marital assets and liabilities shall include specific written findings of fact regarding the identification of the marital liabilities and designation of which spouse shall be responsible for each liability. In this case, the trial court failed to include lease turn-in fees on the Former Wife’s car which the Former Husband bore. The appeals court reversed and remanded on this issue.

Alimony

Florida Statutes provide that, in awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties. In this case, the trial court ordered permanent alimony and failed to make the requisite finding that no other form of alimony would be fair and reasonable. The appeals court reversed and remanded for this finding.

Attorney’s Fees

In making an award of attorney’s fees, among other things, the trial court must consider the number of hours claimed for such fees. In this case, the trial court erred in awarding attorney’s fees for the services of the Former Wife’s two prior attorneys in the absence of her evidence in support of the reasonable number of hours. Further, the trial court made no findings on reasonable number of hours or reasonable hourly rate. The appeals court reversed the award of fees.

Case:             Pansky v. Pansky
Court:            Fourth District Court of Appeal.
Trial Judge: Timothy L. Bailey.
Attorneys:     Troy William Klein, Jordan B. Abramowitz.
Issues:            Equitable Distribution.

Holding: There must be evidence of the spending spouse’s intentional dissipation or destruction of the asset, and the trial court must make a specific finding that the dissipation resulted from intentional misconduct. In this case, the trial court erred in failing to make a specific finding of misconduct necessary to support equitable distribution to the Former Wife of funds the Former Husband spent pending these proceedings. The appeals court reversed and remanded.

Case:             Fahey v. Fahey
Court:            First District Court of Appeal.
Trial Judge: David Rimmer.
Attorneys:
Issues:           Paternity, Custody.

Holding: Under Florida law, parental rights may only be terminated through adoption or statutory procedure. A child’s legitimacy will not be affected by a court determination of paternity or subsequent support orders. In this case, a Georgia court confirmed the parties agreement that, based on genetic test results showing that Appellant was not the biological father, he would have no parental rights or responsibilities regarding the minor child. While it may have been an error under Florida law for a Georgia court to so conclude, its judgment is entitled to full faith and credit, because the Georgia Court of Appeals found that the trial court did not exceed its subject-matter jurisdiction under Georgia law. Further, the Appellant attempted to intervene in the Georgia proceedings, and moved to dismiss for lack of subject-matter jurisdiction. While the Appellant’s jurisdictional argument failed, it was raised and litigated in the Georgia proceeding. Res judicata precludes Appellant from using those grounds in a Florida court. The appeals court affirmed.

Case:             Pucci v. Johnson
Court:            First District Court of Appeal.
Trial Judge: Elizabeth Senterfitt.
Attorneys:     Caleb D. Rowland, William M. Blume, Beth M. Terry.
Issues:           Equitable Distribution.

Holding: Florida Statutes require the court to value and distribute all marital assets. In this case, the trial court erred by distributing only the marital assets included in the parties’ settlement agreement (which was subsequently incorporated into the final judgment). The appeals court reversed and remanded.

Case:             Richardson v. Knight
Court:            Fourth District Court of Appeal.
Trial Judge: Dennis D. Bailey.
Attorneys:     Mason A. Pertnoy.
Issues:           Equitable Distribution.

Holding: Generally, a settlement agreement, including a MSA, announced in open court is enforceable. However, for an oral MSA announced in open court to be valid and enforceable, the MSA must meet the statutory requirements on point and the trial judge must obtain clear and unequivocal assent to the MSA from each party on the record, and must also confirm that each party has discussed the MSA with their attorney and fully understands the terms. In this case, the trial court erred in imposing the equitable distribution scheme under an oral MSA in the absence of the record showing it relied on competent substantial evidence and failed to conform to statute (including those the court is required to consider when determining the equitable distribution of assets and liabilities in a dissolution of marriage action, and whether the equitable distribution should be equal or unequal). The appeals court reversed and remanded.

Case:             Buckalew v. Buckalew
Court:            Fourth District Court of Appeal.
Trial Judge: Renee Goldenberg.
Attorneys:     Michael A. Hymowitz, Barry S. Franklin.
Issues:            Equitable Distribution.

Holding: Distribution of marital assets and liabilities must be supported by factual findings in the judgment or order based on competent substantial evidence. In this case, the trial court erred in an equitable distribution award when it failed to make required findings of fact in the final judgment. Specifically, it adopted the magistrate’s written findings of fact, which failed to identify the marital or non-marital status of each asset and liability, and failed to ascribe a value for those assets and liabilities as required by statute. The appeals court reversed and remanded.

Case:             Wilkinson v. Wilkinson
Court:            Fifth District Court of Appeal.
Trial Judge: Jessica J. Recksiedler.
Attorneys:     Christie L. Mitchell.
Issues:           Equitable Distribution.

Holding: Despite the trial court’s wide discretion in dissolution matters, an appeals court must correct mathematical errors. In this case, the record revealed the trial court erred when it adopted verbatim the Former Wife’s proposed final order without adjudicating matters itself. The oral pronouncement also frequently referenced differing amounts for the value of the same item or category of property without explanation as to how or why the trial court modified the figures. There were also mathematical errors. The appeals court reversed and remanded with direction for the trial court to ensure that the final judgment is consistent with the evidence presented.

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

July 27, 2016

Case:              Bachman v. McLinn
Court:            Second District Court of Appeal.
Trial Judge: John S. Carlin.
Attorneys:     Matthew S. Toll, Stephen N. McGuire, II, Renee Binns.
Issues:            Child Support.

Holding: A trial court can only modify support payments prospectively (from the date a petition for modification is filed). In the case, the trial court erred in granting the Former Husband retroactive credit for child care costs to a date prior to his petition for this relief. The appeal court reversed the relevant portion of the order.

Case:              Back v. Back
Court:            Second District Court of Appeal.
Trial Judge: Catherine M. Catlin.
Attorneys:     Arnold D. Levine, Robert H. Mackenzie, Allison M. Perry.
Issues:            Equitable Distribution.

Holding: Under Florida Statutes (2012), a trial court may not impute income to a parent whose unemployment is involuntary. Imputing income to an unemployed parent for the purposes of child support is a two-step process. Firstly, the court must determine whether the parent's unemployment is voluntary. If so, the court then determines what level of income to impute. When there is no evidence that a parent is voluntarily unemployed, imputing income is error. In this case, the trial court erred in imputing income to the Husband for the purpose of calculating child support in the absence of evidence in the record that he was voluntarily unemployed. The appeals court reversed and remanded.

Case:              S.R. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: Hope T. Bristol.
Attorneys:     Brett P. Rogers, Pamela Jo Bondi, Carolyn Schwarz.
Issues:           Guardianship, Termination.

Holding:        Under Florida Statutes, when a trial court places a minor child in a permanent guardianship, it must, among other things: 1. List the circumstances or reasons why the child’s parents are not fit to care for the child and why reunification is not possible by referring to specific findings of fact in its order adjudicating the child dependent or by making separate findings of fact. 2. Specify the frequency and nature of visitation or contact between the child and parents. In this case, the trial court erred when it limited the Father to supervised visitation in the absence of the required statutory findings in the written order. Specifically, the trial court made no specific findings in its written order that reunification would endanger the children’s physical, mental, or emotional wellbeing. Instead, the order generally concluded that, “there is a continual need for out-of-home placement to ensure the children’s health, safety and wellbeing,” and that reunification “would be contrary to the welfare and not in the best interest of the children.” Such generic language was insufficient to satisfy the requirements of the statute. The order further fails to specify the frequency of the Father’s supervised visitation with the children. The appeals court reversed and remanded.

Case:              Fortunoff v. Morris
Court:            Fourth District Court of Appeal.
Trial Judge: David E. French.
Attorneys:     Peter Ticktin, Kendrick Almaguer, Christine M. Deis, Peter L. Gladstone, Heather L. Apicella.
Issues:            Alimony.

Holding: Trial courts have broad discretion in awarding temporary relief. A high degree of deference is afforded such decisions, except under the most compelling of circumstances. In making an award of temporary alimony, a trial court must consider the needs of the spouse requesting the alimony and the ability of the other spouse to pay alimony, based on competent, substantial evidence. In this case, the trial court erred in its award of temporary alimony in the absence of competent, substantial evidence. The appeals court reversed and remanded.

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