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 April 24, 2016

April 27, 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:              Lathrop v. Lathrop n/k/a Posey
Court:            Second District Court of Appeal.
Trial Judge: John A. Schaefer.
Attorneys:     Dorothy F. Easley, Allison M. Perry.
Issues:            Alimony.
Holding:       In the absence of special circumstances, a Former Spouse cannot be required to maintain life insurance for the purpose of securing an alimony obligation. A final judgment of dissolution must set forth sufficient findings of special circumstances to support a requirement for life insurance. In this case, the trial court erred in requiring the Former Husband to maintain a life insurance policy to secure the payment of permanent alimony in the absence of any special circumstances to justify the life insurance requirement. The appeals court reversed.

Case:              Thomas-Nance v. Nance
Court:            Second District Court of Appeal.
Trial Judge: Martha J. Cook.
Attorneys:      Deborah Marks.
Issues:            Alimony.
Holding:        To deprive a party of the majority of the assets of the marriage for the rest of his or her life is an abuse of discretion. The sentimental interest of one party in marital property cannot take priority over financial fairness to the other. In this case, the trial court erred when it ordered that the Former Husband to pay the Former Wife her interest in the marital home at a monthly rate which would require her to wait more than 20 years to receive her share of the marital assets. The payment plan was patently unreasonable. The appeals court revered and remanded.

Case:              B.J. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge: Maria Sampedro-Iglesia.
Attorneys:   Eugene F. Zenobi, Kevin Coyle Colbert, Karla Perkins, Laura J. Lee (Sandford).
Issues:            Dependency.
Holding:   An appellate court reviews an adjudication of dependency for an abuse of discretion, and will uphold the determination if the trial court applied the correct law and its ruling is supported by competent, substantial evidence. The parent's harmful behavior must be a present threat to the child, based on competent, substantial evidence that the child was either abandoned, abused, or neglected, or that the risk of abandonment, abuse or neglect is imminent. In this case, the trial court erred in ordering dependency in the absence of competent substantial evidence of imminent prospective abuse, abandonment, or neglect. The appeals court reversed and remanded.

Case:              Vaught v. Vaught
Court:            Fourth District Court of Appeal.
Trial Judge: Lisa S. Small.
Attorneys:     Andrew David Stine, Manuel Farach.
Issues:           Domestic Violence Injunction.

Holding: A party defending against a claim is entitled to due process, including the right to proper and adequate notice of the allegations which form the basis for the relief sought. Under Florida Statutes (2014) a Respondent to a petition for a domestic violence injunction shall be personally served with a copy of the petition. In this case, the trial court erred in ordering a domestic violence injunction when certain new allegations were raised for the first time in a supplemental affidavit and not at the hearing. The trial court further erred in denying the Respondent’s motion for continuance where the notice of the final hearing on the new and supplemental allegations was provided only a few business days before the hearing. The appeals court reversed the final judgment of injunction.

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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.

Florida Divorce & Family Law Update for 2 Weeks Ending January 10, 2016

January 13, 2016

Case:              A.C. v. D.C.F. and Adoptive Parents of R.A.
Court: Second District Court of Appeal.
Trial Judge: Kathleen J. Kroll.
Attorneys:     Ronald L. Bornstein, Meredith K. Hall, Bradenton, Philip M. Burlington.
Issues:           Termination.

Holding:     A motion for relief from judgment should not be summarily denied without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege ‘colorable entitlement’ to relief. In this case, the trial court erred in denying the Mother’s motion to vacate the order terminating her parental rights on the basis that she lacked standing (an adoption situation). The appeals court reversed but expressed no opinion as to whether any colorable entitlement to relief under rule 8.270 was shown.

Case:              Forssell v. Forssell
Court: Fourth District Court of Appeal.
Trial Judge: Laura M. Watson.
Attorneys:     Daniel E. Forrest, Joyce A. Julian.
Issues:           Time-sharing.

Holding:       In this case, the Father brought two appeals, that of a: 1. non-final order granting the emergency motion of the Mother to indefinitely suspend his time-sharing with their minor children; and 2. non-final order denying the parties’ joint request to vacate and dissolve the final judgment for protection against domestic violence, which the Mother had obtained against him. In this case, the trial court abused its discretion in failing to set out, in its order, the steps the Father must take to re-establish time-sharing. The appeals court consolidated two cases and reversed the time-sharing order in part and the order denying the motion to vacate and dissolve the injunction.

Case:              Benedict v. Benedict
Court: Fourth District Court of Appeal.
Trial Judge: Tim Bailey.
Attorneys:     Herbert L. Benedict, William G. Crawford.
Issues:           Alimony.

Holding:     The Former Wife sought a judgment on alimony arrearages while the Former Husband’s petition to modify alimony was pending. The Former Husband appeals from the money judgment of the trial court. He argues that the judgment constituted error because he is disabled and unemployed and the Former Wife’s improved financial circumstances obviate her need for support. In this case, the trial court did not err as the Former Husband must raise his claims in the trial court during modification proceedings and must present evidence in support of his modification petition. The appeals court affirmed but without prejudice to the Former Husband proceeding on his modification petition and then seeking relief from the alimony arrearages judgment if the result of the modification proceeding warrants such relief.

Case:              S.L. v. D.C.F.
Court: Second District Court of Appeal.
Trial Judge: Lee A. Schreiber.
Attorneys:     Toni A. Butler, Meredith K. Hall, Laura Lawson.
Issues:           Termination.

Holding: There are strict time frames in cases involving the termination of parental rights. Under the Florida Rule of Judicial Administration, there is a sixty-day time requirement for decisions by courts in such matters. There is also public policy of expediting termination proceedings. In this case, the trial court rendered its final judgment over eight months after the termination hearing (and only after the Guardian Ad Litem filed a motion for ruling on petition for termination of parental rights). During the eight-month delay, several events occurred that required judicial review, including a change of custody that separated the younger children from the older ones. The appeals court affirmed but wrote to emphasize that strict compliance with the rules and statutes governing the time frames in dependency and termination cases is required.

Case:              Felice v. Felice
Court: Second District Court of Appeal.
Trial Judge: Christine Greider.
Attorneys:     Appellant was pro se.
Issues:           Equitable Distribution, Parenting.

Holding:

Equitable distribution
An inter-spousal agreement can expressly waive a Former Spouse's rights and claims in property, including the appreciated or enhanced value of property that occurs during the marriage. In this case, the trial court erred in including a portion of the value of the Former Husband's premarital home as a marital asset in the equitable distribution scheme. Even though the agreement did not specifically refer to any right to the appreciation or enhancement of his premarital home, the broad language of the agreement expressly waived the Former Wife's rights and claims in the property and was considered to include the appreciated or enhanced value of the property that occurred during the marriage. The appeals court reversed.

Parenting
If a trial court modifies a parenting plan in an order on motions for rehearing it must also implement the new parenting plan in the amended final judgment. In this case, the trial court erred in failing to incorporate into the amended final judgment the amended parenting plan that was ordered on rehearing from the original final judgment. The appeals court reversed the amended final judgment to the extent that the parenting plan language and attached parenting plan were inconsistent with the trial court's rulings on rehearing and directed the trial court to amend to be consistent with same.

Case:              Pollack v. Pollack
Court: Fifth District Court of Appeal.
Trial Judge: Charles Hood.
Attorneys:     Richard J. D'Amico, Philip J. Bonamo.
Issues:           Alimony.

Holding:       In this case, the trial court erred by terminating alimony retroactively to the date when the recipient Former Wife Appellant began residing with her significant other, as opposed to the date when the payor Former Husband filed his petition to terminate alimony. The appeals court reversed and remanded with directions to the trial court to enter a new order terminating alimony retroactively to the date of the supplemental petition for modification.

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Florida Divorce & Family Law Update for Two Weeks Ending September 13, 2015

September 15, 2015

Case:              Hahamovitch v. Hahamovitch
Court:            Florida Supreme Court.
Trial Judge: Martin Colin
Attorneys:   Jeanne Brady, Frank Brady, Robert Sidweber, Karent Weintraub, Jane Kreusler-Walsh, Rebecca Vargas, Stephanie Serafin, Joel Weissman, and Sarah Saull.
Issues:            Prenuptial Agreements.

Holding: In short, the Court approved of the Fourth District's prior opinion, and determined that a general waiver of all marital claims and property rights in a prenuptial agreement is sufficient to waive any interest in property created during a marriage due to marital efforts despite there not being a specific waiver of marital claims related to a spouse's earnings, assets acquired with those earnings, or the enhanced value of the other spouse's property resulting from marital labor or funds. The decision resolves a conflict that existed between the Fourth District (no specific waiver required) and the Second and Third Districts (which required a specific waiver).

Case:              Airsman v. Airsman
Court:            Second District Court of Appeal.
Trial Judge: Joseph G. Foster.
Attorneys:     Cynthia B. Hall.
Issues:           Change of Name.

Holding: The test for changing a child's name is whether it is in the child's best interests or is necessary for the welfare of the child. A child's surname should remain unchanged absent evidence on point. The party seeking to change a child's name bears the burden of proof. Conclusory assertions are insufficient. In this case the trial court erred as the change of surname was not supported by competent, substantial evidence that the child's best interests were served, or that the welfare of the child was at risk. The appeals court reversed and remanded.

Case: Rutan v. Rutan
Court: Second District Court of Appeal.
Trial Judge: Peter Ramsberger.
Attorneys: Matthew R. McLain, Jane H. Grossman.
Issues: Alimony.

Holding: A trial court may award alimony upon sufficient evidence and factual findings regarding the respective parties’ need and ability to pay. The burden to show financial need and the former spouse's ability to pay lies with the party requesting alimony. In this case, the trial court erred in awarding alimony as it failed to make findings sufficient to allow meaningful appellate review, particularly regarding the Former Husband's income. The Former Wife failed to meet her burden of proving the Former Husband's ability to pay. The appeals court reversed.

Case:              Wolfson v. Wolfson
Court:            Third District Court of Appeal.
Trial Judge: Stanford Blake.
Attorneys:     Sandy T. Fox, Karen B. Weintraub, Robert W. Sidweber.
Issues:           Parenting, Certiorari.

Holding: Child custody determinations in a judgment of dissolution of marriage may be varied only if a movant can prove modification is required by a substantial and material change in circumstances, and that the child’s best interest will be promoted by such a modification. Generally, both parties must be given notice and opportunity to be heard prior to any modification, unless there is an actual, demonstrated emergency situation, such as where a child is threatened with physical harm or is about to be improperly removed from the state. Even in such instances, every reasonable effort should be made to ensure both parties have an opportunity to be heard. In this case, the trial court erred as it departed from the essential requirements of law when it entered an order granting an emergency request for temporary supervised visitation without providing both parties an opportunity to be heard. The appeals court granted a petition for certiorari with respect to the order and remanded for further proceedings.

Case:              Gentile v. Gentile
Court:            Fourth District Court of Appeal.
Trial Judge: Timothy L. Bailey.
Attorneys:     Stephen H. Butter, Jason H. Haber, Caryn Goldenberg Carvo.
Issues:           Equitable Distribution.

Holding: A trial court should adhere to the terms of a settlement agreement in making an equitable distribution of assets, including provisions as to matters for which mediation is sought. A trial court should conduct an evidentiary hearing if there is dispute. In this case, the trial court erred in granting the Former Wife’s motion and ordering certain real property (a marital asset) be divided pursuant to appraisals for mediation proceedings when the record did not show that property division was subject to mediation. The parties had a settlement agreement that may have addressed the matter and upon which they may need to rely. The appeals court reversed and remanded to determine whether the settlement agreement contemplated resolution and proper division and valuation of the property.

Case:              Corcoran v. Corcoran
Court:            Fifth District Court of Appeal.
Trial Judge: John M. Alexander.
Attorneys:    Leonard R. Ross, Sara E. Glover, Deborah L. Greene, Andrea C. Jevic.
Issues:           Alimony, Attorney’s Fees, Equitable Distribution, Parenting.

Holding: A trial court shall make findings of fact as to modification of alimony. When determining attorney’s fees, a trial court considers the parties’ respective financial situations. A trial court must indicate what evidence it relied on for its findings regarding shared parental responsibilities and contempt of court. After a dissolution of marriage, the parties are equally responsible for all payments necessary to maintain their ownership of the marital property until its sale, including mortgage payments, taxes, insurance and repairs.

In this case, the trial court erred as it:

a.     reduced the Former Wife’s monthly in the absence of specific findings of fact.
b.     awarded attorney’s fees in the absence of specific findings as to the parties’ financial need and ability to pay.
c.     failed to identify the evidence it relied on in making an order regarding shared parental responsibilities and the Former Wife being contempt of court.
d.     failed to hold the Former Wife solely responsible only for repairs to the marital home or, in the alternative, to indicate an evidentiary basis to hold her responsible for all future repairs.

The appeals court reversed and remanded for reconsideration.

Case:              Bailey v. Bailey
Court:            Fourth District Court of Appeal.
Trial Judge: Nicholas R. Lopane
Attorneys:     John E. Schwencke and Adam M. Zborowski of Nugent Zborowski & Bruce, Michael J. Alman, Jamie D. Alman.
Issues:            Time-sharing, Certiorari, Notice.
Holding:   Certiorari
Certiorari will lie if an order compels production of confidential records and requires compulsory examination pursuant to Florida Rules of Civil Procedure. The issue on certiorari review is whether the order departs from the essential requirements of law and results in material injury which cannot be adequately remedied on appeal.

Notice

Proper notice of a motion must be given to opposing parties failing which the resulting order may be reviewed. Twenty-four hours’ notice of a hearing on a motion may be inadequate.

Evaluations and Release of Records

Motions for the compulsory production of confidential records and the appointment of a social investigator may be subject to certiorari review. Parties to such motions must be provided adequate notice. In this case, the trial court improperly ordered the appointment of a social investigator in regards to the Father, and improperly compelled him to produce confidential records and undergo a compulsory examination. The appeals court quashed these portions of the order as the Father was not provided adequate prior notice of the motion, which was filed on the same day as the hearing. Psychotherapist-patient privilege may be asserted to preclude compulsory production of certain mental health records. It would be open to the trial court to make a determination on point.

The granting or denying of an order for a psychological evaluation is a discretionary act and may be reversed only upon a conclusion that no judge could reasonably have ordered such an evaluation. Such an order may be upheld if it is based on factual findings supported by record evidence. A trial court may order a new psychiatric or psychological examination instead of than ordering disclosure of existing mental health records as this balances the court’s need to determine the parents’ mental health as it relates to the best interest of the child, and the duty maintain the psychotherapist-patient privilege. In this case, the trial court made factual findings based on the record, which put the Father’s mental condition in controversy and provided good cause to compel his evaluation.

A trial court may consider, but is not bound by, the testimony or recommendations of a social investigator. In this case, the trial court erred in tying the Father’s time-sharing with the minor children “subject to” the investigator’s recommendations. This was an improper delegation of the court’s authority to the investigator. The appeals court quashed this portion of the order.

Case:              Vaelizadeh v. Hossaini
Court:            Fourth District Court of Appeal.
Trial Judge: Dale C. Cohen.
Attorneys:     John J. Shahady, John M. Ross, Steven D. Miller.
Issues:            Custody, Relocation.

Holding: In determining a petition for relocation, the trial court must concern itself as to whether the relocation is in the best interests of the child. An appellate court reviews relocation determinations for abuse of discretion; however, the question of whether the trial court properly applied the relocation statute is a matter of law, reviewed de novo. Child custody issues should be determined upon child’s best interests, and such issues should not be foreclosed on technical pleading defaults. Florida statutes (2014) provide that, unless the parties have entered into agreement, the parent seeking relocation must file and serve a petition to relocate. The pleadings must conform to statutory requirements including that it be signed under oath or affirmation under penalty of perjury and include a specific statement (in prescribed typographic form) set out under statute, providing notice and direction to the parent upon whom the petition is served. Procedurally, if the parent upon whom the petition has been properly served fails to respond in a timely and proper manner, it is presumed that the relocation is in the best interest of the child and that the relocation should be allowed. The trial court shall, absent good cause, enter an order specifying that the order is entered as a result of the failure to respond to the petition. Additional procedural matters are as prescribed by statute.

In this case, the trial court erred in entering the relocation judgment when good cause existed to preclude the Mother’s relocation despite the Father’s untimely response to the Mother’s petition. Good cause included that:

a.             Despite filing a late response, the Father had a pending petition to domesticate and modify an out-of-state order to seek residential custody before the Mother filed her relocation petition.
b.             He had filed a motion contesting the petition raising allegations requiring hearing.
c.             His untimely response was not due to wilful inaction but his attorney’s unavailability while tending to an ill family member.
d.             An order should not be rendered based on defaults which do not consider the child’s best interests.
e.             The relocation judgment was inconsistent with the trial court’s oral ruling and written order from earlier that day stating that an evidentiary hearing to determine best interests would be set.

The appeals court reversed and remanded for an evidentiary hearing.

Case:              Berg v. Young
Court:            Fourth District Court of Appeal.
Trial Judge: David E. French.
Attorneys:     Nancy W. Gregoire, Howard S. Friedman, Andrew A. Harris, Curtis L. Witters.
Issues:            Equitable Distribution, Attorney’s Fees.

Holding: The passive appreciation of a non-marital asset is a marital asset and subject to division where marital funds, or the efforts of either party, contributed to the appreciation. Where a prenuptial agreement does not address the right to enhanced value of a non-marital asset, the value is subject to equitable distribution. If a separate asset is unencumbered and no marital funds are used to finance its acquisition, improvement, or maintenance, then no portion of its value should be included in the marital estate (save for improvements arising from marital labor). A final judgment may be affirmed pursuant to the tipsy coachman doctrine because the trial court reached the right result, but for the wrong reasons. A trial court’s interpretation of a prenuptial agreement is reviewed de novo, as such agreements are governed by the law of contracts. So, too, is its legal conclusion that an asset is marital or non-marital. The standard of review of a trial court’s determination of equitable distribution is abuse of discretion.

Florida statutes determine the review and award of attorney’s fees in family law matters and seek to ensure that both parties will have a similar ability to obtain competent legal counsel. It can be an abuse of discretion to grant only a partial attorney’s fee award where there is a substantial disparity between the parties’ incomes. However, the trial court cannot award fees based solely on disparity of income. A trial court must make specific findings of fact, either at the hearing or in the written judgment, supporting its determination of entitlement to an award of attorney’s fees and the factors that justify the specific amount awarded. Prenuptial agreement provisions awarding attorney’s fees and costs to the prevailing party in pieces of litigation concerning the validity and enforceability such an agreement are enforceable. A trial court’s ruling on attorneys’ fees in family law actions is reviewed for an abuse of discretion.

In this case, although the trial court erred in its interpretation of the prenuptial agreement (in that it failed to consider the pertinent title presumption), it properly declined to award the Former Wife any interest in the Former Husband’s company. Specifically, the trial court relied on competent, substantial evidence that the Former Husband’s corporation (acquired via a bank account and moneys which, pursuant to the agreement, were non-marital) and appreciation in its value were non-marital and not subject to equitable distribution. The trial court erred as to its award of attorney’s fees as it failed to make findings of fact on point. Further, the prenuptial agreement set out that the party seeking to avoid its terms would bear all the attorney’s fees and costs incurred by the other. As the Former Wife sought, unsuccessfully, to void the agreement the Former Husband was entitled to an award of fees against her. The appeals court reversed and remanded on the issue of fees.

Case:          Suarez v. Orta
Court:            Third District Court of Appeal.
Trial Judge: John Schlesinger.
Attorneys:      Leonardo G. Renaud.
Issues:            Child Support.

Holding: Florida courts emphasize substance over form. Generally, if a motion is improperly titled, a court should focus on its substance. Pleadings by pro se litigants should only be defined by their function. In this case, the trial court erred in declining to consider the Former Husband’s motion notwithstanding that he had intended it as a timely-filed exception to a report, pursuant to Florida Family Law Rules of Procedure (“Rules”). The motion, filed on the same day the report and recommendation was entered, was filed within the ten-day window prescribed by the Rules. The appeals court reversed and remanded with instructions for the trial court to treat his pro se motion as a timely-filed exception pursuant to the Rules.

Case:              Temares v. Temares
Court:            Third District Court of Appeal.
Trial Judge: Rosa C. Figarola.
Attorneys:     Ronald H. Kauffman.
Issues:            Time-sharing, Certiorari.

Holding: Under Florida Rules of Civil Procedure, compulsory psychological evaluation or drug testing is authorized only when the party submitting the request has good cause for the examination regarding matters in controversy. The “in controversy” and “good cause” requirements entail an affirmative showing by the movant that each condition as to which the examination is sought is genuinely in controversy and that good cause exists for ordering each particular examination. Conclusory allegations, alone, are insufficient to demonstrate either “in controversy” or “good cause” for submission to examination. A court may order testing, sua sponte, on sufficient record evidence.

In this case, the trial court erred in ordering testing in the absence of any showing by the movant (in any pleading or otherwise at the hearing) that the opposing Party’s mental condition was in controversy. Nor did the movant establish any good cause. Finally, there was nothing in the record to support a sua sponte order requiring testing. The appeals court (granted Petitioner’s motion for certiorari and) quashed the trial court order for testing.

Case:              R.T. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge: Martin Zilber.
Attorneys:   Sanford Rockowitz, Karla Perkins, Laura E. Lawson.
Issues:            Termination.

Holding: Florida statute governs termination of parental rights based on abandonment. A trial court asked to order termination shall consider relevant statutory requirements with a view to finding that termination is the least restrictive means to protect the child and is in the best interests of the child. In this case, the trial court did not err in ordering termination because it considered requisite provisions and record evidence and found that, although the Father had maintained telephone contact with the child, the record firmly showed that he was unable to care for, support, and parent the child; he had no suitable family members to care for the child; it was in the child’s best interest to be raised with her siblings, with whom she has bonded, and to achieve permanency with a pre-adoptive family that wished to adopt all four siblings. The appeals court affirmed.

Case:              D.C.F. v. N.H.
Court:            Third District Court of Appeal.
Trial Judge: Martin Zilber.
Attorneys:      Karla Perkins, Sharon Wolling.
Issues:            Dependency, Certiorari.

Holding: Certiorari may be granted where a trial court’s actions exceed its judicial authority by encroaching on the powers of the executive branch by ordering it to take some action not permitted by law. The DCF bears the burden of demonstrating that a trial court departed from the essential requirements of law, thereby causing irreparable injury which cannot be adequately remedied on appeal after final judgment. Florida statutes (2015) authorize the amendment of a case plan by the trial court or by agreement of all parties in certain limited circumstances.

In this case, the trial court erred, and the appeals court quashed a portion of its order relieving the Father from complying with an earlier case plan. Specifically, violence in the presence of the child contradicted the claim that the Father no longer needed services and no competent, substantial evidence supported amending the case plan.

Case:              Dorworth v. Dorworth
Court:            Fifth District Court of Appeal.
Trial Judge: George B. Turner.
Attorneys:     John N. Bogdanoff, Shannon McLin, Stephen M. Brewer.
Issues:            Alimony, Equitable Distribution.

Holding: Equitable Distribution
The valuation of an asset or debt in connection with equitable distribution is generally reviewed for an abuse of discretion. Valuation not supported by competent substantial evidence cannot stand. Settlement agreements are governed by the rules of contract interpretation. The trial court's interpretation of a contract in a dissolution proceeding is a matter of law subject to de novo review. When reversible error occurs with regard to valuation or distribution, the entire distribution scheme must be reversed and remanded to allow the trial court to ensure both parties receive equity and justice. In this case, the trial court erred, and abused its discretion, when it utilized the incorrect figure for a certain debt (a judgment resulting from a defunct land deal and which the parties agreed was a marital asset). In its final judgment, the trial court concluded the value of the asset in the absence of any reasoning. The trial court then equitably distributed the parties’ assets and liabilities and made an associated award of lump sum alimony to the Former Wife. As the trial court erred in calculations on point and as alimony flowed, the appeals court remanded for reconsideration and recalculation.

Durational Alimony

An alimony award should not exceed a Former Spouse's need. An order awarding alimony in excess of the Recipient Spouse's needs will be reversed as an abuse of discretion, absent special circumstances. In this case, the trial court erred when it listed specific items of expense (such as student loan expenses) in the final judgment while it determined Former Wife's monthly needs. The calculations of the Former Wife's expenses and income were unclear. The appeals court remanded for reconsideration of the amount of durational alimony to be paid based upon the Former Wife's needs and Former Husband's ability to pay.

Lump Sum Alimony

The trial court must also reconsider the entire distribution plan because each division and distribution of a marital asset or liability is interrelated in order to achieve a fair result to both parties. Similarly, the trial court should reconsider alimony awards and other orders in the final judgment that were based on the incorrect debt amount. In this case, the trial court erred in awarding Former Wife a specific amount of lump sum alimony, which was coordinated with her equitable distribution awards. The appeals court remanded for reconsideration of lump sum alimony in all the associated circumstances.

Case:              A.D., Jr. v. D.C.F.
Court:            Fifth District Court of Appeal.
Trial Judge: Elizabeth A. Morris.
Attorneys:     Richard J. D'Amico, Ward L. Metzger, Thomas Wade Young.
Issues:            Termination, Abandonment.

Holding: Florida statutes provide that a child is abandoned, or that abandonment occurs, when the parent or legal custodian of a child or the caregiver, while being able, has made no significant contribution to the child's care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both.

In this case, the trial court erred in determining that the Father abandoned the child when there was no clear and convincing evidence to support such a finding. While the Father made little effort to comply with the case plan until the petition for termination of parental rights was filed, following that he partially completed his required steps. DCF conceded he had substantially complied. Further, though the evidence showed he was volatile, this is not sufficient to justify the termination of parental rights. Additionally, while the Father had not provided financial support for the child, DCF had not established his ability to do so. Moreover, he had remained in contact with the child, who resided with the Father’s sister. The appeals court reversed and remanded.

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Florida Divorce & Family Law Update for 2 Weeks Ending July 5, 2015

July 8, 2015

Case:          Smith v. Smith
Court:            Second District Court of Appeal.
Trial Judge: Gilbert A. Smith, Jr., Diana L. Moreland.
Attorneys:     Edward B. Sobel, Angela D. Flaherty.
Issues:           Equitable Distribution, Attorney’s Fees.
Holding:         Equitable Distribution

An appeals court reviews de novo a trial court's determination of whether an asset is marital or non-marital. Where parties did not enter into marital settlement agreement, the applicable date for determining whether assets and liabilities are classified as marital or non-marital is the date of the filing of the petition for dissolution of marriage. Assets and liabilities not in existence on that date should not be classified as marital.

In this case the trial court erred when it included as marital assets in the equitable distribution scheme both a vehicle, which was owned by the Former Husband at the time the petition was filed but sold during the pendency of the divorce, and a second vehicle, which was purchased by him after the date of filing but prior to the final judgment. The appeals court concluded that it was error to include the second vehicle in the equitable distribution scheme. The appeals court reverse and directed the trial court to strike the second vehicle from the equitable distribution scheme and reduce the equalizing payment owed to the Former Wife accordingly.

Attorney’s Fees

An appeals court does not have jurisdiction to review attorney’s fees if the trial court’s ruling only addresses entitlement but does not set an amount. In this case, the trial court's ruling on attorney's fees and costs only addressed the relative position of the parties and entitlement but failed to set an amount. As a result, the appeals court lacked jurisdiction to review.

Case:             M.M. v. D.C.F.S
Court:            Third District Court of Appeal.
Trial Judge: Rosa C. Figarola.
Attorneys:     Eugene F. Zenobi, Kevin Coyle Colbert, Cathi Gordon Graham, Angela D. Flaherty, Karla Perkins.
Issues:           Procedure, Dependency.
Holding:         Procedure

Any party can request termination of agency supervision or the jurisdiction of the court by a written motion or in a written report to the court. In this case, the trial court did not err in granting the order for cessation of supervision of the dependent children by the DCF despite being ordered without a motion. Here, the Father argued the order denied him due process because departmental supervision was terminated without a motion. In fact, the DCF requested termination of supervision in a Judicial Review and Social Study Report filed with the trial court, the receipt of which was acknowledge by the Father’s attorney prior to the Judicial Review Hearing. No challenge of the request for termination of supervision was raised. The appeals court denied the petition insofar as it was determined there was no departure from the essential requirements of law and due process as the Father received notice via the filed report.

Dependency/Visitation

Florida Statutes affords a parent the unqualified ability to return to the dependency court to seek modification or elimination of any court ordered restrictions on his or her visitation rights. If a parent who has not had his or her parental rights terminated makes a motion for reunification or increased contact with the child, the court shall hold a hearing. Notwithstanding that the wishes of the dependent children, who may be at or near their teenage years, may, practically, affect a parent’s future contacts and relationship with them, the dependency court has a non-delegable duty to consider any motion for modification or for increased contact filed by a parent in the future. In this case, the trial court erred when it departed from the essential requirements of law by restricting decisions concerning the Father’s future contact with his children solely to its discretion. The appeals court reversed that portion of the order which limited the Father’s ability to seek contact with his children in the future.

Case:             Elias v. Elias
Court:            Fourth District Court of Appeal.
Trial Judge: David E. French.
Attorneys:     Howard M. Rudolph, Caryn A. Stevens, Joel M. Weissman.
Issues:            Child Support
Holding:

Florida Statutes present Guidelines as the starting point for determining child support orders (both temporary and final). Awards of child support shall be based on the application of these Guidelines. After calculating a Guideline amount based on each parent’s net monthly income and the children’s need for support, the trial court may deviate from the Guideline amount based on a variety of factors, however, child support pursuant to the Guidelines must be determined before the trial court deviates.

In this case, the trial court erred in failing to apply the Guidelines despite the Former Husband’s objections. Specifically, it erred in determining that neither party needed to pay child support; in concluding that the Former Wife’s annual income of over $1 million allowed her to provide for most of the children’s needs by direct payments to vendors and providers, as she volunteered to do; and by treating expenditures for the three minor children made by the Former Husband (who had fifty-percent time-sharing) as largely incidental. The appeals court reversed and remanded with directions to the trial court to follow the statutory procedure

Case:          Boyd v. Boyd
Court:            Fourth District Court of Appeal.
Trial Judge: Renee Goldenberg.
Attorneys:     Robert D. Burgs, Catherine L. Roselli.
Issues:            Child Support.
Holding:

A trial court’s decision to accept or reject a magistrate’s conclusions is generally reviewed for an abuse of discretion. A magistrate’s findings are subject to being set aside by the trial court when they are clearly erroneous or the magistrate misconceived the legal effect of the evidence. In this case, the trial court erred in approving the general magistrate’s report and recommendation where the evidence showed the magistrate was expected, but failed, to set an arrearage amount (and there was sufficient evidence available to do so).  The appeals court reversed and remanded for the trial court to resolve the issue of arrearages.

Case:             Suleiman v. Yunis
Court:            Fifth District Court of Appeal.
Trial Judge: Alan S. Apte.
Attorneys:     Adam H. Sudbury.
Issues:           Time-Sharing, Procedure.
Holding:

Pursuant to the Florida Rules of Appellate Procedure, the appeals court has jurisdiction to address matters of denials of due process. Failure to give notice of a hearing to the opposing party absent a true emergency deprives the opposing party of its right to procedural due process. Courts reverse those temporary custody orders which are entered without notice; or with insufficient notice; or with insufficient opportunity to be heard. In order to prevail on a request for a temporary modification of custody, the moving party must meet the burden of proving that (1) a substantial change in the condition of one or both of the parties has occurred, and (2) the best interests of the child will be promoted by the change although the entry of an emergency ex parte order temporarily changing custody might be warranted under certain circumstances, such as where a child is threatened with physical harm or is about to be improperly removed from the state.

In this case, the trial court erred insofar as it denied, at the hearing on Former Wife’s motion to vacate, her requested relief notwithstanding that she presented sufficient and cogent evidence on point; the Former Husband failed to provide sufficient evidence in support of the ex parte order; a substantial change of circumstances had occurred; and that the best interests of the children would be promoted by modifying the timesharing schedule. The lower court abused its discretion in its failure to properly resolve the issue given the lack of evidence in support of the order it issued. The appeals court reversed and vacated the orders.

Case:            Richeson v. Richeson
Court:            Fifth District Court of Appeal.
Trial Judge: Sally D.M. Kest.
Attorneys:     Jeffrey A. Conner, Frank J. Bankowitz.
Issues:            Equitable Distribution.
Holding:         Partitioning

A trial court has no authority to partition jointly-held property in the absence of the parties' agreement or a specific pleading requesting partition. In this case, the trial court erred in ordering the sale of certain real property in the absence of any pleading for partition of the property. The appeals court reversed the portion of the trial court's order directing partition and directed the reinstatement of the equitable distribution scheme set forth in the original final judgment.

Credit for Moneys Paid During Pendency

Claims for credit on moneys paid on assets during pendency must be supported by competent and sufficient evidence. In this case, the trial court did not err when it denied to award the Former Husband credit for moneys he allegedly paid to maintain joint investments during pendency. At trial, the Former Husband's only evidence with regard to his claim was a summary statement listing numerous deposits he made to an account maintained for management of the parties' investment properties. However, he presented no evidence as to the source of the funds, including whether any of the funds derived from rental income on those properties. The trial court recognized this deficiency and directed him to provide supplemental documentation, but he failed to do so. The appeals court affirmed this portion of the order.

Case:            Sowell v. McConnell
Court:            Fifth District Court of Appeal.
Trial Judge: S. Sue Robbins.
Attorneys:     Christina D'Amato-Miller, Mark D. Shelnutt, Rebecca A. Guthrie.
Issues:            Child Support.
Holding:

Florida Statutes (2013) require parties to pay the uncovered medical expenses of a child according to their percentage share of child support. In this case, the trial court erred by failing to require the Former Husband to reimburse the Former Wife for a portion of the minor children's medical expenses incurred during the parties' separation. Although the Former Husband asserts that the Former Wife did not present any evidence regarding the medical bills (including the dates of medical service, nature, necessity, or reasonableness of those bills) the bills were admitted into evidence during trial and the Former Husband voiced no objections when the Former Wife testified as to amounts. As such, the Former Wife was entitled to receive partial reimbursement for the medical bills she introduced into evidence. The appeals court reversed and remanded for the trial court to calculate and award her portion of the medical bills she paid.

Case:             Stantchev v. Stantcheva
Court:            Fifth District Court of Appeal.
Trial Judge: Jonathan D. Ohlman.
Attorneys:     Jonathan P. Culver, Robert H. Mclean.
Issues:            Equitable Distribution, Attorney’s Fees.
Holding:         Non-Marital Assets

Non-marital assets are excluded from equitable distribution. In this case, the trial court erred in making a distribution scheme which did included a particular account as a marital asset when it should have been excluded as it belonged to the Former Husband before the parties were married. The appeals court remanded and directed the trial court to revise the distribution scheme accordingly.

Valuation of Assets

The date for determining value of marital assets is the date or dates as the judge determines is just and equitable under the circumstances. In this case, the trial court erred in valuing an amount of money the Former Husband transferred to a Hungarian bank weeks prior to the Former Wife initiating divorce proceedings as at the date of the transfer rather than the date it was converted back (at a lower rate of exchange resulting in a substantial loss in value). The trial court should have ordered both parties bear an equal share of the resultant loss in value of the account rather than have it lie with the Former Husband (particularly as the Former Husband did not know she intended to commence proceedings). Note that the appeals court found that the trial court was properly within its discretion in assessing the value of such moneys but the error lay in the date the trial court applied to value the asset. The appeals court directed that the loss resulting from the currency exchange be considered on remand.

Attorney’s Fees

In considering equitable distribution, the trial court may consider any amounts paid by a Former Spouse to his or her attorney which are sourced from marital assets and taken and paid in advance of the commencement of proceedings. In this case, the trial court erred in ordering the Former Husband to pay one-half of the Former Wife’s attorney’s fees when she used marital funds for the down payment for her attorney’s fees while the parties were still living together. After they separated, the Former Husband commenced paying temporary alimony which was specifically designed to include Former Wife’s fees. Given the subsequent equitable distribution of assets, each party had the ability to pay his or her own fees and the trial court was directed to reconsider the matter on remand.

Case:            Banks v. Banks
Court:            Second District Court of Appeal.
Trial Judge: Tracy Sheehan.
Attorneys:      E. Jane Brehany, Allison M. Perry.
Issues:            Alimony, Equitable Distribution.
Holding:         Alimony

An appellant must provide, for the record, a statement of the evidence prepared in accordance with Florida Rules of Appellate Procedure. When the appellant fails to provide this court with a record that is sufficient to evaluate the appellant's contentions of error, the appeals court must presume that the trial court's decision is correct. However, the absence of a transcript and a statement of the evidence do not preclude reversal where an error of law is apparent on the face of the judgment. In such cases, the appeals court must limit consideration of the arguments on appeal to errors appearing on the face of the amended final judgment. A trial court can award permanent alimony in a marriage of moderate duration if such an award is based upon clear and convincing evidence after consideration of the factors set forth in relevant statutory provisions. Permanent alimony may be awarded following a marriage of long duration if such an award is appropriate upon consideration of the factors set forth in the relevant statutory provisions, however there is no requirement that such an award meet the clear and convincing standard of proof.

In this case, the trial court erred in failing to award the Former Wife in a long term (33 year) marriage permanent alimony on the basis that she had failed to meet the clear and convincing standard of proof. As this was a long term marriage, the trial court ought to have simply assessed the evidence based on the relevant statutory factors. The appeals court reversed the amended final judgment regarding the denial of the Former Wife's claim for an award of permanent periodic alimony and remanded for reconsideration with directions the trial court on remand should consider making an award of at least a nominal amount of permanent periodic alimony.

Former Husband’s Military Retirement Pay

Language in final judgments needs to be specific, unambiguous and allow for intended changes in the amount of such awards tied to cost of living increases or other such considerations. In this case, the trial court erred in ordering an amount, and an indexed award, of the Former Husband’s military pension payable to the Former Wife, such amount being expressed as both a percentage and specific dollar figure, thereby creating ambiguity as the dollar amount could change as certain specific adjustments are based on the order are made. The appeals court directed, on remand, that the wording be amended.

Case:            Dottaviano v. Dottaviano
Court:            Fifth District Court of Appeal.
Trial Judge: Clyde E. Wolfe.
Attorneys:      Daniel A. Bushell, Shachar D. Spiegel, Stefani K. Nolan, Brian P. North, David Merritt.
Issues:            Child Support, Equitable Distribution, Alimony.
Holding:         Imputing Income

Florida Statutes provide that monthly income shall be imputed to an unemployed or underemployed parent if such unemployment or underemployment is found by the court to be voluntary on that parent’s part. A trial court must employ a two-step analysis when deciding whether to impute income to a former spouse. Firstly, the trial court must determine that termination of employment was voluntary. Secondly, the trial court must determine whether the individual’s subsequent unemployment or underemployment resulted from the pursuit of his or her own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received. Further, the former spouse claiming that income should be imputed to the unemployed or underemployed spouse bears the burden of showing both employability and the availability of jobs.

In this case, the trial court erred in imputing monthly income to the Former Wife when it failed to make a specific finding that she was voluntarily unemployed or underemployed. Nor did the trial court properly address that the Former Husband did not discharge the onus upon him to show that she was employable and there were available jobs for her. Finally, the trial court failed to properly address the Former Wife’s evidence as to her bona fide efforts to obtain employment. The appeals court reversed and remanded with direction to reconsider alimony and child support, as those awards were tied to the improper imputation of income.

Matrimonial Home

Generally, the trial court should award the primary residential parent exclusive use and possession of the marital residence until the child reaches majority or is emancipated. However, special circumstances may justify partition and sale of the marital home where the parties’ incomes are inadequate to meet their debts, obligations, and normal living expenses, as well as the expense of maintaining the marital residence. Special circumstances that justify the partition of the marital home can include instances where the parties resided in the marital residence for a short period of time, lacked other significant marital assets, and a large differential in relative earning power existed between the former spouses. In this case, the trial court erred in granting exclusive possession of the matrimonial home to the Former Husband, despite the residence of the minor child being there with him, insofar as this circumstance fell into one of those special circumstances warranting partition of the marital home. Specifically, the family had lived in the martial home for a short period of time when the parties separated, the parties do not have any other significant martial assets, and there is a large difference in the parties’ earning capacity. Moreover, the payments related to the marital home are significant and the Former Husband could find a place for himself and the minor child to live that is less expensive. The appeals court ordered, on remand, that the trial court order the marital home be partitioned.

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Florida Divorce & Family Law Update for Week Ending May 31, 2015

June 4, 2015

Case:               Winnier v. Winnier
Court:             Second District Court of Appeal.
Trial Judge: Amy M. Williams.
Attorneys:      Paul H. Bowen, David S. Ristoff, Jane H. Grossman.
Issues:            Alimony.

Holding:      A trial court must impute income reasonably projected for earnings on liquid assets awarded in property division. In this case, the trial court erred in failing to impute income to the Former Wife for earnings that could reasonably be projected based on her liquid assets, then, and without explanation, the trial court imputed such income to the Former Husband. The appeals court reversed and remanded for recalculation of the alimony amount.

Case:               Haywald v. Fougere
Court:             First District Court of Appeal.
Trial Judge: David Rimmer.
Attorneys:      Michael T. Webster.
Issues:             Attorney’s Fees.
Holding:          It is an abuse of discretion to grant fees where both parties are equally able to pay their own. Equalizing income through an alimony award and then awarding fees is an abuse of discretion. The court’s job is to determine whether one party has a need and the other has the ability to pay. In this case, the trial court erred in ordering the Former Husband to pay significant sums of both alimony and child support then failing to deduct such sums in assessing his ability to pay the Former Wife’s attorney’s fees. The Former Husband no longer has these funds available within his resources. Properly considered, the parties’ relative abilities to pay attorneys’ fees were, in this circumstance, essentially equal and an award of fees was an abuse of discretion. The appeals court reversed.

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Matthew S. Nugent, Adam M. Zborowski & Christopher R. Bruce limit their practice to resolution of marital and family law 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.

Florida Divorce & Family Law Update for Week Ending May 24, 2015

May 27, 2015

Case:              Williams v. Williams
Court:             First District Court of Appeal.
Trial Judge: Kelvin C. Wells.
Attorneys:      Jerome M. Novey, Shannon L. Novey, Christin F. Gonzalez, John F. Greene.
Issues:            Equitable Distribution.

Holding:        A trial court’s fair market value determination of marital assets must be supported by competent, substantial evidence. Equalization payments and asset distribution must be supported by competent, substantial evidence and trial court must provide sufficient findings and documentation to allow the appellate court meaningful review. In this case, the trial court erred as it did not base its equitable distribution of marital assets and an equalization payment to the Former Wife on competent and substantial evidence. The error was such that the appeals court could not conduct meaningful review of the judgment at issue. The appeals court reversed and remanded those parts of the judgment which were erroneous.

Case:              Bronstein v. Bronstein
Court:             Third District Court of Appeal.
Trial Judge: Scott M. Bernstein.
Attorneys:      Liliana Loebl, Daniel Kaplan, Daniels Kashtan, Lorne E. Berkeley.
Issues:            Parenting, Procedure.

Holding:        To obtain a writ of certiorari, there must exist: (1) a departure from the essential requirements of the law; (2) resulting in material injury; (3) that cannot be corrected on postjudgment appeal. Further, a motion for modification of timesharing must be given notice of the hearing, and present the relief being sought. Specifically, it should be based, and established, on competent and substantial evidence, a material change in circumstances. Such a motion must also involve the taking of evidence and any order that arises should include factual findings. If an order grants relief of an emergency nature, there should be evidence of a true emergency (ie: that the minor child involved is at risk of harm or will be removed from the jurisdiction.)

In this case, the trial court erred in ordering a modification of the parties’ parenting plan on application by the Former Husband insofar as although the Former Wife was given notice of (and attended) the hearing in this matter, the Former Husband’s motion did not seek a modification of the timesharing arrangement, and Former Wife was not on notice that such relief was within the scope of the motion or the hearing. Further, the motion was unverified; the motion did not seek emergency relief; and the trial court did not take any testimony or rely upon any sworn evidence. There was nothing provided by Former Husband to establish a true emergency or to suggest that Child was being threatened with physical harm or about to be improperly removed from the State of Florida. There was nothing presented even to establish the existence of a substantial change of circumstances such that Child’s temporary relocation to Colorado pending the evidentiary hearing was warranted and in Child’s best interest. The court’s Order, which contained no factual findings, was based solely on argument from counsel and the unverified allegations in the Former Husband’s Motion. In rendering its emergency Order upon this basis, and scheduling the evidentiary hearing some four months later, the court departed from the essential requirements of the law, causing irreparable harm that cannot be remedied on post-judgment appeal.

The appeals court granted the Former Wife’s petition, issued the writ of certiorari, and quashed the impugned order below, with instructions that minor child be returned to Former Wife’s care and remanded for further proceedings.

Case: Edgar v. Firuta
Court: Third District Court of Appeal.
Trial Judge: Luis M. Garcia.
Issues: Parenting, Attorney’s Fees.

Holding: Florida procedural Rules authorize a court to permit testimony at a civil hearing or trial by audio or video communication equipment by agreement of the parties or for good cause shown on written request of a party and reasonable notice to all other parties. In this case, the trial court erred in denying the Mother’s petition to telephonically appear at the hearing addressing timesharing and related matters, because the Father objected. The Mother, who was unemployed and had not received child support for the parties’ four children from the Father, lived in North Carolina, had made her petition to appear via technological communications, some 2 months after the procedural rules were amended to so allow such appearance. The court below was not, therefore, barred from considering the mother’s request to testify by telephone simply because the father objected but could have allowed the testimony for good cause shown. The appeals court reversed.

Case:              Badgley v. Sanchez
Court:             Fourth District Court of Appeal.
Trial Judge: Steven B. Feren.
Attorneys:      J. Scott Gunn, Sue-Ellen Kenny, Scott D. Glassman.
Issues:            Equitable Distribution, Alimony.

Holding:         Equitable Distribution
Florida Statutes (2013), governing distribution of marital assets and liabilities, provides that the trial court must begin with the premise that the distribution should be equal and requires consideration and factual findings in the judgment regarding nine specified factors in assessing whether an unequal distribution is warranted. In this case, trial court erred in awarding a 60/40 distribution which was premised solely on the parties’ income and which failed to contain the factual findings required by statute.

Alimony

Florida Statutes (2013), authorizes the award of alimony, based on consideration of a variety of factors that the court shall consider in determining the amount and type. A trial court errs where it fails to make the findings required by statute. In this case, the trial court erred as the final judgment regarding alimony failed to reference the statutory provision and the relevant factors, despite the fact that some of the findings could be fairly read to correlate with the relevant factors. The appeals court reversed on both above issues.

Case:              B.K. v. D.C.F.
Court:             Fourth District Court of Appeal.
Trial Judge: Hope Bristol.
Attorneys:      Lori D. Shelby, Pamela Jo Bondi, Carolyn Schwarz.
Issues:            Termination.

Holding:      Florida statute provides incarceration as a ground for termination. Specifically, under statute, termination may be ordered when the parent of a child is incarcerated and the period of time for which the parent is expected to be incarcerated will constitute a significant portion of the child’s minority. When determining whether the period of time is significant, the court shall consider the child’s age and the child’s need for a permanent and stable home. The period of time begins on the date that the parent enters into incarceration. In addition, the trial court must find that termination is in the manifest best interests of the child. In making this determination, Florida statute sets forth a list of non-exclusive relevant factors, including, but not limited to: (1) any suitable permanent custody arrangement with a relative; (2) the ability the parent to provide the child with food, clothing, medical care or other remedial care; (3) the capacity of the parent or parents to care for the child to the extent that the child’s safety, well-being, and physical, mental, and emotional health will not be endangered upon the child’s return home; and others. Finally, the Department must show, by clear and convincing evidence, that termination is the least restrictive means to prevent serious harm to the child. In this case, the trial court did not err as it considered the relevant factors and made the required factual findings. In so doing, the court found termination of parental rights was the least restrictive means of protecting the minor child from harm because the child had not seen the Father since tiny infancy and did not know him. The appeals court affirmed but remanded to the trial court to consider access between the Father and the minor child.

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