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 5, 2016

Below are summaries of recent decisions from Florida's appellate courts on Florida divorce and family law issues.  Clicking on the case name allows you to view the appellate opinion described in the analysis below.  These summaries are courtesy of Bruce Law Firm, P.A., a law firm limited to representation of clients in the mediation, litigation and appeals of Florida marital and family law matters.  The firm also created and maintains the family law focused appellate resources website DivorceCourtAppeals.com.


Case:             Cilenti v. Cilenti 
Court:            Second District Court of Appeal.
Trial Judge:   John A. Schaefer.
Attorneys:      Andrew J. Rodnite, Jr., Nikie Popovich.
Issues:            Child Support, Equitable Distribution.

Holding:         Child Support

By Florida statute, child support orders shall provide for health insurance for a minor child when such insurance is reasonable in cost and accessible to the child. By presumption, health insurance is reasonable in cost if it is no more than 5% of the gross income of the parent providing coverage. An order may exceed 5% on written reasons of the court. In this case, the trial court erred when it made no findings in the final judgment explaining its deviation from the presumption.

Equitable Distribution

Nonmarital liabilities include liabilities incurred by either party prior to the marriage. In this case, the trial court erred determining that the Former Wife’s credit card account was a marital debt when, in fact, the account was closed before the parties even married.


Case:             Storey v. Storey
Court:            Fourth District Court of Appeal.
Trial Judge:   Charles E. Burton.
Attorneys:      Nancy A. Hass, Sue-Ellen Kenny, Scott D. Glassman.
Issues:            Equitable Distribution.

Holding:         The provisions of a marital settlement agreement (MSA) reached by the parties, and the controlling law, must be followed. In this case, the trial court erred in awarding the Former Wife a greater monthly benefit from the pension of the Former Husband than she was entitled to under unambiguous terms of the parties’ MSA and the controlling law.


Case:             Carlson v. Carlson
Court:            Fourth District Court of Appeal.
Trial Judge:   David E. French.
Attorneys:      Christopher R. Bruce, John E. Schwencke, Gary D. Weiner, Scott M. Weiss.
Issues:            Child Support, Attorney’s Fees.

Holding:         Child Support

Imputing Income - Income may be imputed based on gifts to a party on sufficient evidence that the gifts have been regular, ongoing and will continue in the future. In this case, the trial court erred in relying on a magistrate’s inclusion of gifts as income to the Former Wife without sufficient evidence that they were regular or continuing.

Child Care - A trial court must rule on a party’s request for relief where the request arises in the pleadings and subsequent proceedings. Child care costs related to employment, finding work, or obtaining education to improve opportunities to work, shall be added to the basic obligation. In this case, the trial court erred in relying on the magistrate’s findings when they were silent on the Former Wife’s requests (made in the pleadings and subsequently) regarding daycare expenses. The appeals court reversed and remanded on this issues.

Attorney’s Fees

Recalculation of income requires reconsideration regarding attorney’s fees. The appeals court reversed and remanded for the trial court recalculate her income, child support, child care expenses and attorney’s fees. 


Case:             Lowery v. Carney
Court:            First District Court of Appeal.
Trial Judge:   Terrance R. Ketchel.
Attorneys:      Clark H. Henderson, Anna F. Foster.
Issues:            Due Process, Custody.

Holding:         The decision of a trial court is presumed and an appellant bears the onus to demonstrate error. In this case, the Mother’s due process rights were not violated when her hearing notice went a wrong address because she could not meet the burden of showing error.  No transcript of the hearing was available to show she what address she had provided the court and and the evidence she provided on point could not discharge the onus on her.


Case:             Serra v. Brown
Court:            Second District Court of Appeal.
Trial Judge:   William H. Burgess, III.
Attorneys:      John A. Shahan, Knute J. Nathe.
Issues:            Attorney’s Fees.

Holding:         An award of attorney’s fees must be based on findings required by statute. In this case, the trial court erred in awarding attorney’s fees in the absence of statutory findings in support. The appeals court reversed and remanded.


Case:             Benevides v. Reese
Court:            Fifth District Court of Appeal.
Trial Judge:   George Paulk.
Attorneys:     
Issues:            Procedure, Custody.

Holding:         An appellant must to ensure the appeal record is prepared and transmitted to the appeals court. A copy of the order under review be attached to the notice of appeal. In this case, the Appellant failed to supply the record on appeal, a copy of the final judgment on appeal, or any transcript of the trial for review, which precluded a meaningful review. The appeals court denied. 


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

The Bruce Law Firm, P.A. is limited to the resolution of marital and family la w matters in Florida’s trial and appellate courts.  The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts.  The firm pays referral fees in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.

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

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:              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.


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

The Bruce Law Firm, P.A. is limited to the resolution of marital and family la w matters in Florida’s trial and appellate courts.  The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts.  The firm pays referral fees in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.

Florida Divorce & Family Law Update for Week Ending July 19, 2015

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:              Fosshage v. Fosshage
Court:            Third District Court of Appeal.
Trial Judge:   Tegan Slaton.
Attorneys:     Samuel J. Kaufman, Lawrence E. Harkenrider, Jiulio Margalli.
Issues:            Time-sharing, Modification (Permanent Residence). 

Holding:      Under Florida Statutes (2013), there is a clear distinction between modification based on changed circumstances and modification based on relocation. A determination of parental responsibility, a parenting plan, or a time-sharing schedule may not be modified without a showing of a substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child. In determining whether a change in circumstances has occurred, a trial court must consider a statutorily enumerated list of factors. A petition for relocation, on the other hand, requires a different procedure with specific statutory requirements governing the content of the petition, service on the other parent, burdens of proof, and factors to be considered by the court.

 In this case, the trial court erred in treating what was a petition for relocation as a change in circumstances and therefore did not adhere to or consider the correct process and factors. The appeals court reversed and remanded for the proper proceedings.
 


Case:              Dravis v. Dravis
Court:            Second District Court of Appeal.
Trial Judge:   Keith Spoto.
Attorneys:     Jean Marie Henne, Shelley Harrell Shelton.
Issues:            Marital Assets, Equitable Distribution. 

Holding:         Cash Gifts 
An appeals court will review de novo a trial court's characterization of an asset as marital or nonmarital, and any factual findings necessary to make this legal conclusion, for competent, substantial evidence. Nonmarital assets may lose their nonmarital character where they have been commingled with marital assets. This is especially true with respect to money because money is fungible, and once commingled, loses its separate character. It is irrelevant that a bank account is titled in the name of one Former Spouse, alone, as it may become marital if both marital and nonmarital funds are commingled in that account. It is not necessary for commingled funds to be used to pay marital expenses in order to be treated as entirely marital; it is enough that the funds be commingled.

Dissipated Proceeds

The appeals court reviews a trial court's equitable distribution decisions for abuse of discretion and examines its valuation of marital assets to determine whether it is supported by competent, substantial evidence. Generally, it is error to include in an equitable distribution scheme any assets that have been diminished or dissipated during the dissolution proceedings. The exception, however, is where misconduct during the divorce case results in the dissipation of a marital asset. To determine whether such misconduct occurred, the trial court must assess whether one spouse used marital funds for a purpose unrelated to the marriage at a time when the marriage was undergoing an irreconcilable breakdown. Further, such misconduct must be supported by the record evidence, and by specific factual findings of the trial court.

In this case, the trial court did not err in its determination as to misconduct and characterization of marital assets. The trial court did, however, err regarding the equitable distribution of the parties' marital assets. Competent, substantial evidence demonstrated that certain nonmarital assets (being the proceeds of monetary gifts to the Former Wife) were commingled with proceeds that were marital assets. The monetary gifts therefore lost their nonmarital character and became marital assets subject to equitable distribution. However, the trial court failed to make specific factual findings on the matter. This necessitated the reversal of the judgment on that issue. The appeals court affirmed as to the cash gifts and alimony, but reversed and remanded for further proceedings on equitable distribution.


Case:              Dickson v. Dickson
Court:            Fifth District Court of Appeal.
Trial Judge:   Mark J. Hill.
Attorneys:     Nicholas A. Shannin, Lauren M. Ilvento, Barry P. Burnette, Matthew B. Capstraw
Issues:            Timesharing. 

Holding:        A trial court's order modifying a parenting plan and timesharing schedule is reviewed for an abuse of discretion. The trial court has less authority and discretion to modify timesharing than it does to make the initial timesharing determination. Under Florida Statutes (2013), relocation is a change in the location of the principal residence of a parent or other person from his or her principal place of residence at the time of the last order establishing or modifying time-sharing. Further, the change of location must be at least 50 miles from that residence. In the absence of a statutory or contractual provision to the contrary, the proper method to measure the distance between two points is the straight-line or “as the crow flies” measure. Under the principle of shared parental responsibility, major decisions affecting the welfare of a child are to be made after the parents confer and reach an agreement. If the parents reach an impasse, the dispute should be presented to the court for resolution whereby the court must resolve the impasse by determining the best interests of the child.

In this case, the trial court abused its discretion by modifying the timesharing agreement without evidence that the welfare of the minor child would be promoted by a return to the school the minor child had previously attended and modifying the timesharing arrangement so that the Father assumed the primary timesharing responsibilities. The Mother’s move did not violate the marital settlement agreement or the relocation statute. While the timesharing schedule largely met the statutory requirements, it did not include a school designation, and the marital settlement agreement did not expressly prohibit a move. Further, the parties agreed that the Mother moved forty-nine miles “as the crow flies,” using the straight-line test and was not required to file a petition to relocate. However, the dissolution final judgment gave the parties shared parental responsibility on major decisions, including educational matters. Because the parties were unable to agree on the minor child’s school, the Mother was required to obtain court approval before unilaterally changing the schools the minor child attended. The appeals court reversed and remanded with directions.


Case:              Rossi v. Rossi
Court:            Fifth District Court of Appeal.
Trial Judge:   Kelly J. McKibben.
Attorneys:     Joe Teague Caruso.
Issues:            Equitable Distribution. 

Holding:         A trial court's determination that a motion or other filing is improper, as labelled, is a question of law and is reviewed de novo. Where it is apparent that an improperly-labelled motion is intended to operate as an authorized motion, an appellate court must consider the motion as if it were properly labelled. Where a party files a motion that would be unauthorized based on the motion's title, Florida courts will consider the motion's substance in determining whether the motion was authorized. The mislabelling of a motion will not preclude consideration. In this case, the trial court erred as it failed to consider the content of an improperly-labelled motion for rehearing and treated the motion as a list of exceptions. Specifically, the trial court found no issue with the substantive content of the Former Wife's list of exceptions. That finding necessarily implied that the substantive content of the motion for rehearing—which was identical to the list of exceptions was also sufficient. The trial court should have treated Former Wife's unauthorized motion for rehearing as an authorized list of exceptions and should have held a hearing on the magistrate's report. The appeals court reversed the trial court's entry of final judgment and remanded for a hearing on the Former Wife's list of exceptions to the magistrate's report.


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

The Bruce Law Firm, P.A. is limited to the resolution of marital and family la w matters in Florida’s trial and appellate courts.  The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts.  The firm pays referral fees in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.

Florida Divorce & Family Law Update for Week Ending May 17, 2015

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:               Santos v. Santos
Court:              Second District Court of Appeal.
Trial Judge:    Amy Smith.
Attorneys:      Christine Greider, Justin C. Carlin, James W. Chandler.
Issues:             Parenting, Child Support.   

Holding:        The use of outdated financial information in calculating a child support towward can constitute reversible error. In this case, the trial court erred in its modification of the child support plan in the final judgment when it used outdated financial information from both the Former Wife and the Former Husband in calculating the amount of child support. The appeals court reversed the final judgment with respect to the child support modification and remanded for the trial court to reconsider the support award in light of the parties' updated financial information.


Case:               Robertson v. Robertson
Court:              Fourth District Court of Appeal.
Trial Judge:    Merrilee Ehrlich.
Attorneys:      John T. David, Rhoda Sokoloff.
Issues:             Injunction for Protection.

Holding:         Florida Statutes (2013), criminalizes a person who wilfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person. To harass, is to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose. This “course of conduct” includes “a series of acts over a period of time, however short, which evidences a continuity of purpose.” In this case, the trial court did not err in entering the injunction insofar as surveillance-based evidence showed three incidents, which were further verified by Appellant’s e-mail to Appellee admitting to being at her residence, established a course of conduct sufficient to support the trial court’s entry of the injunction against Appellant.


Case:               Plummer v. Forget
Court:              Fifth District Court of Appeal.
Trial Judge:    Dan Traver.
Attorneys:      Patrick Michael Megaro, Jennifer M. Manyen.
Issues:             Injunction for Protection. 

Holding:          A person commits the act of stalking by wilfully, maliciously, and repeatedly following, harassing, or cyberstalking another person. To harass another person means to engage in a course of conduct directed at that specific person which causes substantial emotional distress to him or her and serves no legitimate purpose.  A course of conduct is a series of actions, over a period of time, which evidences a continuity of purpose. Each incident of stalking must be proven by competent, substantial evidence.  When evaluating whether competent, substantial evidence supports a trial court's ruling, legal sufficiency, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal. In determining whether each incident of harassment causing substantial emotional distress has been established to support a finding of stalking, courts use a reasonable person standard, not a subjective standard. In this case the trial court erred in entering the injunction for protection as the evidence was legally insufficient to support doing so. The appeals court reversed.


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

The Bruce Law Firm, P.A. is limited to the resolution of marital and family la w matters in Florida’s trial and appellate courts.  The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts.  The firm pays referral fees in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.