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 June 19, 2016

June 21, 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:    Haritos v. Haritos
Court: Second District Court of Appeal.
Trial Judge:   Patricia A. Muscarella.
Attorneys:   O. George Bamis, Nancy S. Paikoff, Steven J. Glaros.
Issues: Child Support, Alimony, Procedure.

Holding: A temporary relief order does not merge into a final judgment where the final judgment provides that the trial court jurisdiction to later resolve property, custody and support issues. In this case, the trial court erred as it failed to enter a final judgment disposing of the financial aspects of the parties' dissolution. The appeals court reversed and remanded.

Case:     Edge v. Edge
Court: Second District Court of Appeal.
Trial Judge: G. Keith Cary.
Attorneys:   Robert L. Donald, Paul A. Rocuant.
Issues:            Alimony, Procedure.

Holding: Certain statutory requirements guide a trial court’s calculations of a party’s income for the purpose of awarding child support or alimony. For instance, a trial court must not exclude from consideration bonuses that are regular and continuous. Also, when calculating child support, voluntary retirement payments are not included as allowable deductions. An appeals court must reverse if there have been inaccurate calculations. In this case, the trial court erred in calculating the Former Husband's income. Specifically, the trial court erroneously used the amount of gross income that he reported on his financial affidavit, despite his later evidence that it had increased, and excluded employment bonuses noting that they were discretionary. Nor should it have deducted mandatory retirement payments. The appeals court reversed and remanded.

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Florida Divorce and Family Law Update for Week Ending May 29, 2016

May 31, 2016

Case:              Shulstad v. Shulstad
Court:            Second District Court of Appeal.
Trial Judge: Ashley B. Moody.
Attorneys:      Mark A. Neumaier, Bradley J. McDonald, Matthew E. Thatcher.
Issues:            Alimony.

Holding: A trial court may require a party to secure child support and alimony payments with life insurance coverage. However, the record should contain evidence of the payor's insurability, the cost of the proposed insurance, and the payor's ability to afford the insurance. In this case, the trial court erred in ordering the Former Husband/Payor to maintain life insurance coverage in the absence of a sufficient evidentiary basis. The appeals court reversed.

Case:              F.G. v. D.C.F
Court:            Third District Court of Appeal.
Trial Judge: Maria I. Sampedro-Iglesia.
Attorneys:      Ilene Herscher, Karla Perkins, Laura J. Lee (Sanford).
Issues:            Dependency.

Holding: The courts and legal counsel must try to identify related proceedings in order to avoid inconsistent results and facilitate judicial efficiency. In this case two separate courts granted inconsistent orders as to dependency when there was no recognition of the interconnectedness of the matters. The appeals court reversed.

Case:              Fye v. Bennett
Court:            Fourth District Court of Appeal.
Trial Judge: John L. Phillips.
Attorneys:      Siobhan Helene Shea.
Issues:            Injunction Against Stalking.

Holding: Under Florida statutes, a person who willfully, maliciously and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking. In this case, the trial court erred in ordering an injunction despite the Former Boyfriend agreeing to enter into a permanent injunction against stalking as part of criminal proceedings regarding his conduct. The appeals court reversed.

Case:              Valdes v. Valdes
Court:            Fourth District Court of Appeal.
Trial Judge: Dennis D. Bailey.
Attorneys:
Issues:            Timesharing.

Holding: A trial court must rely on prior agreements and evidence in making an order as to timesharing. In this case, the trial court erred in its calculation of timesharing by granting an award inconsistent with the prior Parenting Plan without competent record evidence. The appeals court reversed and remanded.

Case:              Maciekowich v. Maciekowich
Court:            Fourth District Court of Appeal.
Trial Judge: Edward A. Garrison.
Attorneys:      David S. Fabrikant, Richard L. Dedell.
Issues:            Alimony.

Holding: When determining permanent periodic alimony a trial court shall consider the needs of one spouse and the other spouse’s ability to pay. In this case, the trial the court erred in awarding the Former Wife nominal annual alimony because it held she did not provide evidence of need. However, the Former Husband’s evidence made out the requirements of the respective parties’ need and ability to pay. The appeals court reversed.

Case:             Stark v. Stark
Court:            Fifth District Court of Appeal.
Trial Judge: John D. Galluzzo.
Attorneys:      Marcia K. Lippincott, Patrick A. McGee.
Issues:            Alimony.

Holding: Durational alimony is an intermediate form of alimony between bridge-the-gap and permanent alimony. It is used following a marriage of long duration if there is no ongoing need for support on a permanent basis. In this case, the the trial court erred in awarding the Former Wife a combination of durational and permanent alimony rather than solely awarding permanent alimony. Specifically, the evidence failed to demonstrate that the Former Wife’s need or the Former Husband’s ability to pay would be materially different at the end of the durational alimony period than it was at the time the amended final judgment was entered. The appeals court reversed.

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Florida Divorce and Family Law Update for Week Ending May 8, 2016

May 10, 2016

Case:       Ivanovich v. Valladarez
Court:            Second District Court of Appeal.
Trial Judge: Keith Spoto, William D. Sites.
Attorneys:      Elizabeth S. Wheeler.
Issues:            Child Support, Attorney’s Fees.

Holding:        Child Support

A retroactive child support obligation may not be imposed prior to the filing of a petition seeking a modification. On a motions for modification, a trial court may modify child support retroactively to the date of the filing of the action or supplemental action for modification. In a custody proceeding, the court is precluded from entering a judgment on any matter outside the issues framed by the pleadings. Specific findings regarding the parties' incomes are necessary for a determination of whether the support ordered departed from the guidelines and, if so, whether that departure was justified. The expenses of visitation are part of the parties' childrearing expenses that must be addressed as part of the parties' child support obligations.

In this case, the trial court erred in ordering retroactive child support to the Former Husband when he sought only custody and not a modification of child support as well. His request for modification of child support was made later, when he sought permanent custody. The relevant date for purposes of child support was not when he received custody of the child; it was when he filed a pleading seeking modification of child support. As well, the trial court imputed income to the Former Wife, but did not make specific findings regarding the Former Husband's income. The lack of findings regarding gross income prevented the appeals court from determining whether the trial court erred, so the order was reversed. Finally, the trial court erred in not factoring into the child support calculations the expenses of the Former Wife regarding visitation. The appeals court reversed and remanded for reconsideration.

Attorney’s Fees

The trial court did not make any findings of need and ability to pay, which are the primary considerations in such matters. The trial court was also required to make findings regarding the reasonable hourly rate and number of hour expended. While the trial court found the Former Husband's request for fees reasonable as to the time expended and hourly rate for fees, it failed to make any findings regarding the reasonable hourly rate. The appeals court affirmed the order denying the Former Wife's motion to vacate the first order, but reversed the first order due to error.

Case:       Lardizzone v. Lardizzone
Court:            Fourth District Court of Appeal.
Trial Judge: Laurie E. Buchanan.
Attorneys:
Issues:            Equitable Distribution.

Holding: Marital assets and liabilities include liabilities incurred during the marriage, individually or jointly. The cut-off date for determining which assets and liabilities are marital is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage. In the final judgment, the trial court found that the Former Husband incurred significant medical bills from an injury that occurred while the parties were married. It then characterized them as a marital liability for which the parties should be equally responsible. However, these findings were ambiguous as there were amounts of unpaid bills not yet determined. The appeals court reversed and remand for the clarification of the amount of unpaid medical bills for which he was personally liable on the cut-off date for determining marital liabilities.

Case:              Feliciano v. Munoz-Feliciano
Court:            Fourth District Court of Appeal.
Trial Judge: Nicholas Lopane.
Attorneys:      Catherine L. Roselli, Nancy A. Hass.
Issues:            Equitable Distribution.

Holding: The interpretation of a marital settlement agreement, as incorporated into the final judgment, is subject to de novo review. A marital settlement agreement is interpreted like any other contract. Courts are not to rewrite terms that are “clear and unambiguous. The plain meaning of the contract specified that payment from the Former Husband to the Former Wife would come from his share of the proceeds of the sale of the marital home. This agreement provided that the parties did not want any “deficit payments”. In this case, the trial court’s order contradicted the terms of the marital settlement agreement when it found the Former Wife was entitled to additional funds subsequent to the sale of the matrimonial home (a deficit payment) and entered judgment against the Former Husband in that amount. The order for a deficit payment constituted error. The appeals court reversed.

Case:              Perez v. Perez
Court:            Second District Court of Appeal.
Trial Judge: Michael J. Scionti.
Attorneys:      Allison M. Perry, Sema Yildirim.
Issues:            Child Support, Alimony.

Holding: Trial courts have great jurisdiction in making temporary relief awards, but it is improper for the trial court to fail to identify which share of the award is for child support and which intended to be alimony. The trial court must also make findings regarding the parties' incomes for purposes of applying the child support guidelines. In this case, the trial court erred as its order failed to differentiate between child support and alimony. It required the Former Husband to pay for rent on the Former Wife's apartment and her moving expenses but did not identify whether that was alimony or child support. The trial court also failed to make any findings regarding the parties' incomes. The appeals court reversed.

Case:         Corio v. Lopez
Court:            Fifth District Court of Appeal.
Trial Judge: Bob Leblanc.
Attorneys:      Michael B. Jones.
Issues:            Paternity, Venue.

Holding: A paternity action lies in the circuit court for the county in which either the plaintiff or defendant resides. When venue is proper in more than one county, a plaintiff may choose to institute suit in any proper place and the trial court must honor that choice. In seeking a change of venue, the defendant has the burden of proving that the plaintiff’s venue selection is improper; it is insufficient to merely establish that venue is proper elsewhere.

In this case, the trial court erred when, without a hearing, it granted the Plaintiff Father’s motion and transferred the action to another venue. He was deprived of due process when the trial court entered the order without affording him the opportunity to be heard on the motion. Notwithstanding, the trial court erred when it concluded that the venue needed to be changed as he had filed in the appropriate venue. The appeals court reversed.

Case:             Salazar v. Giraldo
Court:            Fifth District Court of Appeal.
Trial Judge: Mark J. Hill.
Attorneys:      Jeffrey A. Conner, Brian M. Monk.
Issues:            Equitable Distribution.

Holding: Florida Statutes (2015), holds that a party is not entitled to any credits or setoffs upon the sale of the marital home unless a settlement agreement, final judgment of dissolution of marriage, or final judgment equitably distributes assets or debts and provides that certain credits or setoffs are allowed or given at the time of the sale. In the absence of a settlement agreement involving the marital home, the court shall consider certain enumerated factors including alimony, exclusive possession and other awards and circumstances. Specifically, the amended final judgment was silent as to whether he was entitled to any credits or setoffs upon the sale. Nor did the record show whether the trial court considered the statutory factors it was required to assess prior to entering judgment. The appeals court reversed and remanded for proper consideration.

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Florida Divorce & Family Law Update for Week Ending April 17, 2016

April 18, 2016

Case:              Nolan v. Nolan
Court:            First District Court of Appeal.
Trial Judge: E. McRae Mathis.
Attorneys:     Gary Baker, Barry L. Zisser, Corrine A. Bylund.
Issues:           Alimony, Equitable Distribution, Attorney’s Fees.

Holding:        Equitable Distribution

The reversal and remand of the equitable distribution portion of the final judgment necessitates reversal and remand of the alimony and attorney’s fees portions of the final judgment as well. As such, other aspects of the final judgment required reversal and remand.

Alimony

Florida Statutes (2015), directs the trial court to first make a specific factual determination as to whether either party has an actual need for alimony and whether the other party has the ability to pay. If the trial court so determines, it must then consider all of the relevant factors in section 61.08(2)(a)-(j), Florida Statutes (2015). The parties here were married for 33 years, which is considered a long-term marriage which raised a rebuttal presumption of entitlement to permanent alimony. In this case, the trial court erred as the alimony award was not adequately supported by the evidence or the findings in the final judgment. While Florida Statutes (2015), directs the trial court to consider all sources of income available to either party, (including overtime and bonuses) it simultaneously recognized that a seven-day work week is not reasonable. The trial court erred in calculating the alimony award based upon the husband’s income that was unsustainable and that was also shown, both by the evidence and basic notions of reasonableness, to be no longer available to him.

Attorney’s Fees

A trial court abuses its discretion in awarding attorney’s fees if the equal distribution of the marital property has been achieved and the trial court equalized incomes through its alimony awards. Florida Statutes (2015), allows the trial court to order a party to pay a reasonable amount of attorney’s fees after considering the financial resources of both parties.

In this case, the trial court erred as, it awarded attorney’s fees when the final judgment placed the Former Wife in a substantially equal position as the Former Husband. The appeals court remanded.

Case:              Bielling v. Bielling
Court:            First District Court of Appeal.
Trial Judge:   W. Gregg McCaulie.
Attorneys:     Christopher T. Wilson.
Issues:           Child Support, Time Sharing, Parenting.

Holding:        Due process requires that a party be given the opportunity to be heard and to testify and call witnesses on his or her behalf. The denial of this right is fundamental error. Denial of due process is valid basis for disqualification of a trial judge but an appellate court requires an order at issue properly before it to review. In this case, the trial court erred as it entered final judgment without notice to the parties, while the hearing was ongoing. The appeals court reversed but as issue of disqualification was not properly before it, could not address it.

Case:              B.G. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge:   Kirk C. Volker.
Attorneys:     Thomas Montgomery, Meredith K. Hall, Bradenton, Sara E. Goldfarb.
Issues:            Dependency.

Holding:        A court cannot relinquish jurisdiction to circumvent The Interstate Compact on the Placement of Children (“ICPC”). In this case, the trial court erred in relinquishing jurisdiction of a matter regarding dependency in Florida (where the Mother had custody pursuant to a Domestic Relations Order) to Texas (where the Father resided and had obtained a Shelter Order). Specifically, it: a) found that the Child was permanently placed with the Father by virtue of the Shelter Order, which did not alter the Father’s status as the noncustodial parent under the prior the Mother’s Domestic Relations order; b) tried to circumvent the ICPC; and c) relinquished jurisdiction over the Child in the middle of a dependency case after removing her from the Mother who had custody under a prior court order. The appeals court vacated and remanded.

Case:              S.M. v. D.C.F.
Court:            Fifth District Court of Appeal.
Trial Judge:   Michelle T. Morley.
Attorneys:     Summer N. Boyd, Deborah A. Schroth, Christopher S. Mulligan, WendieMichelle Cooper.
Issues:             Termination.

Holding: An order for termination must be founded on compelling, substantive evidence and proper application of such evidence to the relevant statutory provisions. In this case, the trial court did not err when it ordered termination of the Father’s parental rights as the order. There were multiple statutory grounds properly found by the trial court. The appeals court affirmed but remanded for clarification of the order on entry.

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Florida Divorce & Family Law Update for 2 Weeks Ending April 1, 2016

April 5, 2016

Case:             J.M. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: J. David Langford.
Attorneys:     Antony P. Ryan, Melanie L. Casper, Rosemarie Farrell, Laura J. Lee.
Issues:            Dependency.
Holding:      Without evidence showing that domestic violence has occurred when a child or children were present, or that they were aware of such violence, a finding of impending harm to the children is unsubstantiated. For purposes of dependency, harm to a child includes extensive, abusive, and chronic use of a controlled substance or alcohol by a parent when the child is demonstrably adversely affected by such usage. In this case, the trial court erred in ordering dependency in the absence of competent substantial evidence that: a. the child was aware of alleged incidents of violence between the Mother and Father, or was affected by such instances; and b. the Mother was under the influence of substances in the presence of the Child, or that any substance abuse adversely affected the Child (despite her being under the influence in the presence of others). The appeals court reversed.

Case:              J.B. and D.C.F. v. C.S.
Court:            First District Court of Appeal.
Trial Judge:   Karen A. Gievers.
Attorneys:   Theresa Flury, Kelley Schaeffer, Dwight O. Slater, Thomasina Moore,    Ronald Newlin, Lorraine M. Donovan-Lepanto, Mike Donovan, Stephen Johnson.
Issues:            Termination, Reunification.
Holding:        Where the trial court's findings are supported by competent substantial evidence and the appellate court cannot say that no one could reasonably find such evidence to be clear and convincing, the findings will not be set aside on appellate review. In this case, the trial court did not err as it made its determination that statutory grounds for termination of parental rights existed; that termination promoted the children’s best interests; and that termination was the least restrictive means to protect the children from serious harm as competent substantial evidence. The appeals court affirmed.

Case:             Children’s Home Society of Florida v. V.D.
Court:            First District Court of Appeal.
Trial Judge: Karen A. Gievers.
Attorneys:     Cheryl R. Eisen-Yeary, Elizabeth W. Willis, James V. Cook.
Issues:            Adoption.
Holding:      Under Florida Statutes, an adoption agency is not required to serve a notice of intended adoption plan on a putative father unless the mother has first identified a known and locatable unmarried biological father by the date she signs her consent for adoption. . Likewise, the statute does not require the agency to conduct a diligent search for the putative father unless the mother has identified a potential father within the timeframes required by the statute which are identified as the date the mother signs the consent for adoption. In this case, the trial court erred as no putative father was known, or locatable, or identified, by the time the birth mother signed her consent for adoption. Although that is the only time frame relevant under the statute, it is also true that the limited information the birth mother provided later, under questioning from the trial court, likewise did not identify a known or locatable putative father. The Society was not subject to any diligent search requirement beyond what it had already completed prior to the termination of parental rights. The appeals court reversed.

Case:             Demmi v. Demmi
Court:            First District Court of Appeal.
Trial Judge: David Rimmer.
Attorneys:      Bradley G. Johnson, Bradley G. Fisher.
Issues:            Child Support/Expenses.
Holding:        In making an order as to non-covered medical expenses, if such expenses are ordered to be separately paid, a trial court must allocate these expenses in the same percentage as the child support allocation unless there is a rationale in the final judgment to the contrary. In this case, the trial court erred in ordering the parties to each be responsible for the payment of 50% of the non-covered medical expenses of the children because such allocation conflicted with the final judgment’s allocation of the parties’ relative financial responsibility for child support.

Case:             Felice v. Felice
Court:            Second District Court of Appeal.
Trial Judge: Christine Greider.
Attorneys:
Issues:            Equitable Distribution, Parenting.
Holding:         In this case, the trial court erred by including a portion of the value of the Former Husband's premarital home as a marital asset in the equitable distribution scheme. While the parties’ did not specifically refer to any right to the appreciation or enhancement of the Former Husband’s premarital home the broad language of the agreement expressly waived the Former Wife's rights and claims in the property and included the appreciated or enhanced value of the property that occurs during the marriage. The court further erred as it failed to incorporate into the amended final judgment the amended parenting plan that the trial court ordered on rehearing from the original final judgment. The appeals court reversed.

Case:              R.W. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge: Jeri B. Cohen.
Attorneys:      Albert W. Guffanti, Karla Perkins, Laura J. Lee (Sanford).
Issues:            Termination.
Holding:         A trial court may properly question witnesses when required by the interests of justice. In this case, the trial court did not err in its participation in the questioning of witnesses at an adjudicatory hearing. Such questioning did not constitute an abandonment of the trial court’s role of neutrality and impartiality and did not deprive the appellant of due process. The appellant failed to object to most of the court’s questions it now relies upon for this claim. The appeals court affirmed.

Case:             Collins v. Collins, Sr.
Court:            Fifth District Court of Appeal.
Trial Judge: Mark J. Hill.
Attorneys:     Brandon M. Tyson, Paul W. Darby, Thomas Holden.
Issues:            Parenting.
Holding:      In awarding limited or restrictions on parental responsibility, a trial court must make specific findings on point. In this case, although the trial court’s factual findings supported its decision, the appeals court remanded because the final judgment failed to include a specific finding that shared parental responsibility would be detrimental to the children.

Case:            Nuila v. Stolp
Court:            Fifth District Court of Appeal.
Trial Judge: Kelly J. McKibben.
Attorneys:      Lindsey M. Sharp.
Issues: Injunction Against Domestic Violence.
Holding:   An injunction against dating violence is statutorily authorized if a petitioner proved three elements: (1) a dating relationship within the past six months; (2) at least one occasion of dating violence; and (3) reasonable cause to believe that he or she is in imminent danger ofanother act of dating violence. In this case, the trial court erred as, while there was competent substantial evidence on that the parties had dated in the past 6 months and there had been an episode of dating violence, the third statutory element, reasonable cause to believe that the petitioner was in imminent danger of another act of dating violence, was not supported by competent substantial evidence. The appeals court reversed.

Case:             G.K. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: J. David Langford.
Attorneys:     Antony P. Ryan, Richard G. Bartmon, Rosemarie Farrell, Laura J. Lee.
Issues:            Dependency.
Holding:        An order for dependency must be based on competent substantial evidence, avoiding inadmissible hearsay evidence, of risk to the child/children. In this case, the trial court erred in ordering dependency when there was no competent substantial evidence that the children where at risk or witnessed incidents of domestic violence involving the parents, or that the Father posed a current threat to the safety of the children. The trial court also relied upon inadmissible hearsay evidence to support the order of dependency. The appeals court reversed and remanded.

Case:            Abramovic v. Abramovic
Court:            Fourth District Court of Appeal.
Trial Judge: Jeffrey Dana Gillen.
Attorneys:     Jamie Billotte Moses.
Issues:            Equitable Distribution, Exemption.
Holding:        A lump sum equalizing payment to accomplish equitable distribution is properly awarded only when the evidence reflects a justification for such an award and the ability of the paying spouse to make the payment without substantially endangering his or her economic status. The custodial parent presumptively is entitled to the tax exemptions but may release them to the noncustodial parent. A final judgment awarding a dependency tax exemption must require that the exemption be conditional on the paying spouse’s being current in his support obligations. In this case, the trial court erred in requiring the Former Wife to make an equalizing payment which the evidence showed she could not afford; giving the Former Husband the dependency exemption without conditioning it on his compliance with his child support obligations, and not alternating the dependency exemption between the parties. The appeals court reversed.

Case:            McGlynn v. Tallman-McGlynn
Court:            Fourth District Court of Appeal.
Trial Judge: Amy L. Smith.
Attorneys:      Robert M. Lewis, Catherine S. Eaton, Cash A. Eaton.
Issues:            Alimony, Child Support.
Holding:        Any error on the part of the trial court may be considered invited error. Matters argued for the first time in a reply brief will not be considered by the reviewing court. In this case, the trial court did not err in computing and applying the Former Husband’s net income when determining child support payments. The error raised by the Former Husband regarding calculation of his income was invited error as the court’s calculations were based on his affidavit evidence and not raised properly on appeal (he raised it in a reply brief). The Former Husband’s arguments regarding calculations were not supported by the record, and the trial court’s conclusions that he could to survive economically after making all required payments was supported on the evidence. The appeal court affirmed.

Case:            Palmer v. Palmer
Court:            Fifth District Court of Appeal.
Trial Judge: Ann Melinda Craggs.
Attorneys:      Robert H. McLean, Bureus Wayne Argo.
Issues:            Parenting, Time-Sharing.
Holding:         In this case, the trial court did not err in allowing the Former Husband to reopen the evidence after the trial had concluded and regarding time-sharing. However, it did err in denying the Former Wife’s petition to limit their child’s exposure to dogs (due to allergies) in the face of expert evidence supporting a restriction and the Former Husband conceding that a restriction was in the child’s best interest. The appeals court reversed and remanded regarding restricting exposure to dogs

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Florida Divorce & Family Law Update for Week Ending July 26, 2015

July 28, 2015

Case:              Tucker v. Tucker
Court:            Fourth District Court of Appeal.
Trial Judge: Merrilee Ehrlich.
Attorneys:     Theresa Yuricic.
Issues:            Equitable Distribution, Alimony, Contempt.

Holding:         A trial court’s property valuation must be supported by competent, substantial evidence. By entering the final order before a party has had an opportunity to be heard, a trial court deprives him or her of the due process guaranteed by the Florida Constitution. Facts are not established for consideration by the trial court, or by appellate review, when attorneys make representations in their arguments before the trial court. Same does not constitute evidence. In setting the value of assets, a trial court must base its decision on proper evidence and provide findings as to the valuation. In this case the trial court erred as its stock valuation for an equitable distribution was not supported by competent, substantial evidence because of three errors. The trial court erred in determining the value of the stock:

1. before the Former Wife finished presenting her evidence;
2.  without hearing the Former Husband’s evidence, instead, relying on his attorney’s unsworn statement;
3.  by making its own assessment, without providing a factual explanation.

The appeals court reversed and remanded for the court to resume and complete the evidentiary hearing.

Case:              D.W.Q. v. A.B.
Court:            Fifth District Court of Appeal.
Trial Judge: John M. Alexander.
Attorneys:     Robert L. McLeod II, Leslie H. Morton, William S. Graessle, Jonathan W. Graessle, John L. Whiteman, J. Stephen Alexander.
Issues:            Termination, Procedure.

Holding:         It is a denial of procedural due process rights of notice and fair hearing to terminate parental rights on a ground not pleaded. Adequate notice and meaningful hearing are required before a trial court can properly order the termination of substantive rights. Additionally, a trial court's written order must establish that it considered and evaluated each of the relevant statutory factors in reaching its decision as to the manifest best interests of the child. Finally, a trial court must consider all the evidence admitted at trial before rendering its decision.

In this case, the trial court erred as it terminated the Father’s parental rights on a ground not alleged in the Mother’s petition. The petition did not allege termination for egregious conduct under the relevant provisions of Florida statute, (it simply alleged that termination was warranted under other statutory provisions.) Termination for egregious conduct was not tried by consent because it was not mentioned in opening or during the presentation of Mother's evidence at trial. Further, the trial court's order of termination was deficient in that it failed to include findings for the each relevant statutory factor regarding the child's manifest best interests. Finally, the trial court erred in that it did not, ostensibly, review all evidence before it prior to making the order. The appeals court reversed and remanded for the trial court to reconsider its ruling after reviewing all admitted evidence.

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