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 & Family Law Update for Week Ending May 31, 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:               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.


About DivorceCourtAppeals.com and Nugent Zborowski & Bruce

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

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:              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.


About DivorceCourtAppeals.com and Nugent Zborowski & Bruce

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 Three Weeks Ending May 10, 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 award 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. 


Case:              Beckstrom v. Beckstrom
Court:             Fourth District Court of Appeal.
Trial Judge:   Amy Smith.
Attorneys:      Betty C. Resch, Sean P. Sheppard.
Issues:            Alimony, Attorney’s Fees. 
Holding:  Attorney’s Fees

Despite the lack of a transcript and an adequate record, when the error appears on the face of the judgment, it should be corrected. A trial court may order a party to pay a reasonable amount for attorney’s fees. The trial court is required to consider the financial resources of both parties and make findings regarding their respective financial needs and abilities to pay. Failure to do so requires reversal. The trial court also has discretion to allow payment of an award of attorney’s fees over time, but it must set out a factual basis for imposing the specific payment plan selected.  In this case, the trial court found the Former Wife was in need of attorney’s fees, but did not make a finding as to the Former Husband’s ability to pay and did not set forth any factual basis for imposing this specific payment plan. The appeals court reversed the judgment on this issue and remanded the case to the trial court to make the requisite written findings.

Life Insurance Policy

Under the invited error rule, a party cannot successfully complain about an error for which he or she is responsible or of rulings that he or she invited the court to make. In this case, the trial court did not err in ordering the Former Husband to purchase a life insurance policy and include such a provision in his proposed final judgment when the Former Husband so agreed earlier in the proceedings. The appeals court affirmed on this point. 


Case:              Gilroy v. Gilroy
Court:             Second District Court of Appeal.
Trial Judge:   Amy M. Williams.
Attorneys:     Jane H. Grossman, Peter N. Meros.
Issues:            Time-sharing, Child Support. 

Holding:  Florida Family Law Rules of Procedure require the filing of a financial affidavit in supplemental dissolution proceedings, with service within 45 days of service of the initial pleading on the respondent. The Rules provide a continuing duty to supplement financial affidavits upon a material change in financial circumstances. The requirement to provide a financial affidavit in supplemental proceedings is mandatory and cannot be waived by the parties. As well, a request for a continuance must be entertained, in order to properly present evidence regarding the relevant issues. In this case, the trial court erred in denying the Former Husband's request for a continuance when the Former Wife did not serve and file her financial evidence in compliance with the Rules and giving the Former Husband sufficient time to properly review it and prepare.  The appeals court reversed and ordered a new hearing on the issue of child support and directed that discovery be conducted prior to the final hearing on remand.


Case:              C.D. v. D.C.F.
Court:             First District Court of Appeal.
Trial Judge:   David M. Gooding.
Attorneys:     Jeffrey E. Lewis, Crystal McBee Frusciante, Kelley Schaeffer, Ward L. Metzger.
Issues:            Termination. 

Holding:  In termination of parental rights cases, the standard of review is highly deferential. The trial court's findings must be supported by competent substantial evidence. In order for parental rights to be permanently and involuntarily severed, the state must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child. As parental rights constitute a fundamental liberty interest, the state must establish in each case that termination of those rights is the least restrictive means of protecting the child from serious harm. Florida statutes provide that the availability of a placement with a relative may not be considered as a ground to deny the termination of parental rights. However, in this case the applicable test was whether termination was the least restrictive means of protecting a child from serious harm. In this case, the trial court erred as it found the least restrictive means of achieving permanency and held that termination was the least restrictive means of protecting the children from harm. The appeals court reversed. 


Case:              Sisca v. Sisca
Court:             Fourth District Court of Appeal.
Trial Judge:   Thomas H. Barkdull, III.
Attorneys:      Roger Levine, Amy D. Shield, Jonathan M. Streisfeld, Michael B. Gilden.
Issues:            Alimony, Attorney’s Fees. 

Holding:        Under Florida statute, awards of attorney’s fees must be based on evidence that demonstrates the requisite need and ability to pay. An obligor should not be made to invade certain assets and investments if there is evidence the obligee has their own assets upon which he or she could rely. In this case, the trial court erred in ordering the Former Wife to pay the Former Husband’s attorney’s fees despite evidence showing her net income was lower than his. Rather, the trial court based its decision on financial evidence showing her investments, liquid assets, were worth more than his. However, based on their respective net monthly incomes, to pay his fees, the Former Wife would have to invade the liquid assets, while his financial evidence showed he had investments and other assets on which he could rely. Under these circumstances, it was an abuse of the trial court’s discretion to require the Former wife to pay the Former Husband’s fees. The appeals court reversed the fee awards. 


Case:              D.S. v. D.C.F.
Court:             Fourth District Court of Appeal.
Trial Judge:   Hope Bristol.
Attorneys:   Antony P. Ryan, Paulina Forrest, Pamela Jo Bondi, Carolyn Schwarz, Patricia Murphy Propheter.
Issues:            Termination. 

Holding:  Termination of parental rights by the state requires clear and convincing evidence establishing one of the enumerated statutory grounds including risk to the child; that termination is in the manifest best interest of the child; and that termination is the least restrictive means of protecting the child from harm. Grounds for establishing termination can include the incarceration of a parent and whether the period of time for which the parent will be incarcerated will constitute a significant portion of the child’s minority. In 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. The court must look both at the length of the incarceration as well as its effect on the child’s need for permanency.  The state must prove that termination is in the best interest of the child and the least restrictive means of protecting him or her from harm. In this case the trial court was correct in terminating for the minor child who had been in foster care, the foster parents anticipated adopting him and he did not wish to see his father. The state proved same by clear and convincing evidence. That child’s need for permanency (being adopted) was paramount, supported by competent substantial evidence, in the manifest best interest of the child and was the least restrictive means to prevent harm to him.

As for the children living with a relative, the trial court erred in terminating as the state did not establish grounds for same. The children were living with a relative, and the Father maintained as close a relationship as his incarceration has allowed and the finding that his incarceration amounted to a significant portion of the children’s minorities was not supported by substantial and competent evidence. Nor was it shown that termination was in the children’s best interest nor the least restrictive means to prevent harm to the children. The appeals court affirmed the termination regarding the one child parental but we reversed the termination as to the other children.


Case:              Brandon-Thomas v. Brandon-Thomas
Court:             Second District Court of Appeal.
Trial Judge:   John E. Duryea, Jr..
Attorneys:     Luis E. Insignares, Brian J. Kruger, Michael E. Chionopoulos, Pamela Jo Bondi, Allen Winsor, Adam S. Tanenbaum.
Issues:             Same-Sex Marriage. 
Holding:  The trial court was reversed for dismissing a same-sex divorce case based on lack of jurisdiction.  The appellate court remanded to the trial court to consider the merits of the divorce petition.

Like those federal court decisions recognizing same-sex marriages, a same-sex divorce must be analysed principally for compliance with the Equal Protection and Due Process Clauses of the federal constitution to the extent that the trial court's order denied relief to the appellant. The application of the constitutional principles of equal protection and due process apply to the dissolution of same-sex marriages. The issues at hand require key focus. The primary issues at hand involve the rights of a same-sex couple, validly married in another state and now living in Florida, to seek a dissolution of marriage in Florida. A heterosexual couple under similar circumstance could easily invoke a Florida trial court's jurisdiction. More precisely defining the issue and the right enables easier application of the constitutional principles of equal protection and due process.

In this case, the court is petitioned to assist in returning the parties to single status – to adjust the parties' financial and property relationships and provide some judicial direction concerning child custody. The parties are not asking a Florida court to form a marital union, they seek disengagement from a broken relationship. Upon dissolution of marriage, the parties will each be single. Apart from the mandates of any final judgment, any state or federal obligations or benefits attendant to marriage presumably will cease.  A well-settled general framework is utilized for the constitutional analysis. The substantive component of the Due Process Clause checks state authority to enact untenable measures, even if enacted with appropriate procedural safeguards. Substantive due process protects fundamental rights. As the Florida Constitution and legislation classify same-sex couples differently than heterosexual couples for purposes of dissolution of marriage, the proper definition of the right sought plays a leading role. In this case, the state failed to identify and argue the proper right. Rather, it pursued analysis and argument related to Florida’s ban of same-sex marriage and regarding Florida laws, under which, sexual orientation is not a protected class entitled to strict-scrutiny analysis.  As the state bears the burden of presenting only a rational basis for its legislation, on the arguments presented, it fell short and tied the analysis to the need to promote procreation and have children raised in a particular family situation. The state made this a same-sex issue when it is not. Once the real issues are defined that becomes apparent. However, even if Florida's purported interest in procreation and having children raised in a heterosexual household were rational reasons to ban same-sex marriage, the state did not establish why or how prohibiting a validly married same-sex couple from seeking a divorce in Florida advances either of these interests. The state has not articulated how prohibiting a trial court from dissolving a same-sex marriage, validly entered into in another state, will promote a rise in procreation. Nor does the state explain how denying a couple a divorce will optimize what it sees as an ideal environment for raising children. Indeed, in the context of a marriage dissolution, the trial court will be in an ideal situation to protect the best interest of the child parented by this couple. The appeals court did not discount the state's reason for enacting its laws and noted that a court should defer to the state when it has provided a basis for its statutory and constitutional classifications. However, such deference presupposes that the state has a rational basis for its position, which in this case, was not established.   


Case:              Gilliard v. Gilliard
Court:             Fifth District Court of Appeal.
Trial Judge:   Linda Schoonover.
Attorneys:      David L. Robold, Shannon L. Akins, Nicholas A. Shannin, Patrick John McGinley.
Issues:            Alimony, Equitable Distribution, Attorney’s Fees. 
Holding:  Alimony
In order to award alimony, a court must make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. The burden to show his or her financial need and the spouse’s ability to pay is on the party requesting alimony. A marriage having a duration of greater than 7 years but less than 17 years is considered a moderate-term marriage and there is no presumption for or against permanent alimony. Permanent alimony may be awarded following a moderate-term marriage if such an award is appropriate based upon clear and convincing evidence after consideration of the factors set out by statute. The purpose of permanent alimony is to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties.          The ability to pay alimony should be based on the party’s net, not gross, income.


In this case, the trial court erred in awarding alimony based on the Former Husband’s gross income. The trial court also erred in considering Former Husband’s future retirement benefits as both current income and a marital asset, included in its distribution of the parties’ marital assets when the future retirement benefits should be considered in the division of marital assets.  The trial court erred further when it failed to make specific written findings regarding the standard of living established during the marriage, the contributions of each party to the marriage, or the tax treatment and consequences of awarding alimony.

Equitable Distribution

Under Florida statute, in distributing marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal. Although a trial court may distribute marital assets and liabilities unequally, it is required to justify such an award based on all relevant factors under statute. A court should make enumerated findings related to each factor under statute. While parties may agree to a specific distribution of some of their assets and liabilities in a mediated or other settlement agreement, the court should placed values on the various items of personal property because each division and distribution of a marital asset and liability is interrelated to form an overall scheme fair to both parties.


The trial court erred in awarding an asset to the Former Wife firstly in the equitable distribution scheme and then a second time in the attorney’s fees. The trial court erred in failing to place a value on the parties’ automobiles, furniture, and furnishings distributed pursuant to the partial mediation agreement and erred when it ordered the Former Husband to make mortgage payments if he failed to make his alimony payments. Proper recourse there would have been to impose sanctions for wilfully failing to comply with a court order. The trial court also erred in failing to consider the consolidation loan as a marital liability.

A
ttorney’s Fees

An award of attorney’s fees must be based on clear and cogent evidence of the parties’ respective need and ability to pay. Such findings must be housed in specific factual findings which also include those regarding the attorney’s work (ie: reasonable number of hours spent and the reasonable hourly rate.)  In this case, the trial court did not err in that regard, but did improperly include an asset that was already distributed when it conducted the ability to pay analysis.

The appeals court reversed the entire distribution plan and remanded for reconsideration. 


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 March 15, 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.

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Case:             Cheek v. Hesik
Court:            First District Court of Appeal.
Trial Judge:   A. C. Soud, Jr..
Attorneys:     William S. Graessle, Jonathan W. Graessle.
Issues:           Process. 

Holding:         If a trial court issues an order adjudicating an issue not presented by the parties, or the pleadings, due process is infringed. The order, therefore, departs from the essential requirements of law. Further, where there has been no pleading requesting modification, then the modification of a judgment constitutes a jurisdictional defect. In this case, the trial court erred when it temporarily suspended the Former Husband’s one-half obligation toward travel costs and ordered that all timesharing less than four days in duration occur in the vicinity of his residence when such issues were neither properly raised by the pleadings nor set for hearing. In doing so, the Former Wife’s due process rights were violated. The appeals court reversed and remanded with instructions to vacate those portions of the order.


Case:               Solache v. Ibarra
Court:             Third District Court of Appeal.
Trial Judge:    Valerie R. Manno Schurr.
Attorneys:       Harvey D. Rogers, Nory Diaz, Nancy A. Hass.
Issues:             Child Support, Contempt.   

Holding:         Prospective Increase in Alimony: It is improper for a trial court to grant a final judgment which provides for an automatic prospective increase in alimony in the absence of specific factual findings, or the failure to articulate any reason, for same.

The trial court erred, however, with regards to the provision in the final judgment that, upon the child of the marriage reaching the age of majority (and the termination of child support payments), the monthly alimony payments to Former Wife would automatically increase. The final judgment failed to make any specific factual findings, or articulate any reason, for such an automatic prospective increase in alimony. The appeals court concluded it was error to provide for this automatic increase, affirmed the contempt order and reversed that portion of the final judgment providing for an automatic increase in alimony.

Contempt Order

An initial determination of a support obligation by a trial court, which must be supported by competent substantial evidence, creates a presumption of a payor’s ability to pay.  At a contempt hearing, it is open for a trial court to determine whether a payor alleged to have defaulted on such obligations, has overcome this presumption.  The trial court must, on competent substantial evidence, determine that the payor has the present ability to pay and failed or refused to comply with the support order to pay.

In this case, the trial court did not err with regard to the trial court’s contempt order. The final judgment was predicated upon an affirmative finding of the Former Husband’s ability to pay the support amount ordered. This initial determination, which was supported by competent substantial evidence, created a presumption of the Former Husband’s ability to pay. The trial court’s determination, at the contempt hearing, that former husband failed to overcome this presumption, had the present ability to pay, and failed to comply with this order, was also supported by competent substantial evidence. 


Case:              M.P. v. D.C.F.
Court:             Fourth District Court of Appeal.
T
rial Judge:   James Martz.
Attorneys:     Antony P. Ryan, Paulina Forrest, Rosemarie Farrell.
I
ssues:            Process. 

Holding:         Dependency Order

Courts are duty-bound to ensure that their dependency orders reflect only facts proved by competent, substantial evidence presented at the dependency hearing.

In this case, the trial court erred when it included, as a factual basis for the dependency, verbatim from the “prior history” summaries of call-out investigations that were set forth in the dependency petition, being uncorroborated reports not supported by evidence at trial. The appeals court affirmed the overall order but remanded with instructions for the trial court to strike the unsupported findings from its orders.
R
andom Drug Testing

A court may order a parent to submit to a mental or physical examination in circumstances where (1) the parent has requested custody of the child, (2) the parent’s mental or physical condition is in issue, and (3) there is good cause shown for the examination. An mental or physical examination may be ordered any time after a shelter petition or petition for dependency is filed and the mental or physical condition of a parent, caregiver, legal custodian, or other person who has custody or is requesting custody of a child, is in issue. A qualified professional must conduct the examination. Such matters, including a case plan, must be considered by the court having regard to whether the plan is meaningful and designed to address facts and circumstances upon which the court based the finding of dependency.

In this case, the trial court erred in requiring the Father to submit to random drug testing.  While the Father sought custody, and the dependency petition alleged that the father had a criminal history of drug possession, sufficient to place the issue of his substance use in issue, the trial evidence did not show that he abused drugs. There was also no evidence at trial regarding the Father’s alleged arrest for possession of drugs. The trial court relied, erroneously, on allegations of drug use, however this reliance fails to satisfy the good cause standard. Nor was there any showing that a substance abuse evaluation would meaningfully address the facts and circumstances which resulted in the adjudication of dependency as to the Father. The appeals court reversed for the trial court to strike the task of random drug testing from the Father’s case plan.   


Case:              Dugan v. Dugan
Court:             Fifth District Court of Appeal.
Trial Judge:   Shawn L. Briese.
Attorneys:     John N. Bogdanoff, Elizabeth Siano Harris.
Issues:            Alimony, Equitable Distribution, Attorney’s Fees. 

Holding:        An error on the face of a final judgment should be corrected. Findings related to alimony awards must have a proper evidentiary basis. A trial court must give its rationale, based on trial evidence, for a finding which forms part of the final judgment. In this case, the trial court erred in finding that all of Former Wife's medical expenses were entirely covered by Medicare, and entering such finding on the face of the judgment without sufficient rationale. Specifically, the trial court based its finding on what it described as the Former Husband's “uncontroverted testimony” notwithstanding that the Former Wife provided authority suggesting that she is responsible for Medicare premiums, deductibles, and noncovered expenses. The appeals court reversed on the issue of Former Wife's medical expenses and remanded.


Case:               McGarvey v. McGarvey
Court:             Fifth District Court of Appeal.
Trial Judge:   Hubert L. Grimes.
Attorneys:      Brian J. Lee, William R. Alexander.
Issues:            Time-sharing, Child Support, Attorney’s Fees. 

Holding:         In determining timesharing, a trial court must make an independent assessment of a timesharing arrangement that is in the best interests of the child or children.  Such an assessment must be based on substantial cogent evidence. In this case, the trial court erred in finding that the parties had reached an agreement addressing, among other things, parenting, and ruled on timesharing and child support. The parties later conceded that no such agreement had been reached. The appeals court reversed the ruling on timesharing and, as a result, determined that child support may also need reconsideration.  


Case:              Makaros v. Cichocki
Court:             Fifth District Court of Appeal.
Trial Judge:   James H. Earp.
Attorneys:      Elizabeth Siano Harris.
Issues:            Adoption. 

Holding:          Under Florida statute, jurisdiction of an adoption may be vested in the Florida courts by virtue of the fact that a child, or children, and the petitioner resided within the court's jurisdiction and the natural parent gave the required consent. An adoption proceeding is not barred merely because a competent court of another jurisdiction has validly exercised its authority by awarding custody of the child sought to be adopted when the court before whom adoption is sought otherwise has jurisdiction to proceed.  A relative (ie: aunt, uncle or even grandparent) with visitation rights procured in a different state, is not necessarily entitled to notice of the stepparent adoption proceedings.  The interest that entitles a person to notice of an adoption must be direct, financial, and immediate, and the person must show that he or she will gain or lose by the direct legal operation and effect of the judgment. A showing of an indirect, inconsequential, or contingent interest is inadequate, and a person with this indirect interest lacks standing to set aside a judgment of adoption.   

n this case, the trial court did not err in determining that Florida was the child’s home state when the final judgment was entered. Even though the “Home State” Rule was raised as a ground in the appeals process, under the “Tipsy Coachman” Rule, the appeals court concluded that the resolution of the case did not turn on whether Florida was the “Home State” of the child under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) at the time the court entered the adoption. Rather, regardless of whether Florida was the “Home State” of the child at the time the court entered the adoption, under Florida statute (as cited and relied on in Florida case law), the trial court had subject matter jurisdiction to enter the final judgment of adoption.     

Here, the Father had sole custody of the child at the time the petition for stepparent adoption was filed. Therefore, he was the only person required to consent to the adoption. Insofar as the Father had consented, the appeals court affirmed the trial court’s denial of the motion to set aside the final judgment of stepparent adoption.    


Case:              Bristow v. Bristow
Court:             Fifth District Court of Appeal.
Trial Judge:   Michelle T. Morley.
Attorneys:     
Issues:            Injunction for Protection Against Domestic Violence. 

Holding:        A petition for the dismissal of an injunction for protection against domestic violence must state a cause of action. It cannot make vague allegations. Rather, it must allege sufficient facts to show that a party has reasonable cause to believe he or she is in imminent danger of being a victim of domestic violence.

In this case the trial court did not err when it declined to set an evidentiary hearing regarding a petition filed by the Appellant on the grounds that the petition was deficient on the facts required to establish jurisdiction of the Florida courts pursuant to statute. The appeals court’s affirmance was without prejudice to the Appellant filing, if able to do so in good faith, a new, legally sufficient petition.


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 February 22, 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:              McIndoo v. Atkinson
Court:             Fourth District Court of Appeal.
Trial Judge:   Laura M. Watson.
Attorneys:      Pro Se.
Issues:            Custody, Foreign Judgments. 

Holding:  The general purposes of the UCCJEA are to avoid jurisdictional competition and conflict with other courts in child custody matters; promote cooperation with other courts; insure that a custody decree is rendered in the state which enjoys the superior position to decide what is in the best interest of the child; deter controversies and avoid relitigation of custody issues; facilitate enforcement of custody decrees; and promote uniformity of the laws governing custody issues.

If the factual circumstances of a case meet the jurisdictional standards of the statute, and the foreign order has not been modified, then a trial court should exercise jurisdiction to grant a party’s petition of domesticate the foreign order. Specifically, in a child custody proceeding under commenced under Florida statute, if the Home State Rule applies, and if there are no proceedings in another state, or if there are proceedings in the another state which are not identical to those in Florida, then a Florida trial court may exercise jurisdiction.

A child custody proceeding involves legal custody, physical custody, residential care, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.

Under Florida statute, “Home State” means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding. In the case of a child younger than 6 months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period. The “Home State” rule applies to child custody proceedings.

A Florida court may not exercise its jurisdiction for custody if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child had been commenced in a court of another state having jurisdiction substantially in conformity with this part, unless the proceeding has been terminated or is stayed by the court of the other state.

In this case, the trial court erred when it found that it did not have subject-matter jurisdiction because: (1) the Petitioner Mother did not file a motion regarding a “child custody proceeding” as defined by Florida statute; (2) Florida was not the “home state” of the child; and (3) proceedings “in substantial conformity with the UCCJEA” had been commenced in another jurisdiction.

Child Custody Proceeding

The trial court erred when it declined to exercise jurisdiction to act upon the petition to domesticate a foreign custody order in the absence of any statutory, or other, authority requiring that a proceeding be a “child custody proceeding” under the definition in the UCCJEA before it could act. To the contrary, both the statute governing domestication of a foreign judgment and registration of a judgment are contained within Florida’s UCCJEA statutes.  Therefore, the fact that the mother’s filings were not regarding a child custody proceeding is irrelevant to the question of jurisdiction to domesticate a foreign custody order.


Home State Rule

The trial court also erred in its interpretation of the proceedings and its application of the Home State Rule by denying the Petitioner Mother’s application to domesticate the foreign order and seeking to rely on the Respondent Father’s opposition to the petition, which relied in large part on this section of the UCCJEA. The child custody proceeding was properly within the domain of Florida statute because, as was in fact found by the trial court, the petitions filed by the mother did not constitute “child custody proceedings.” This means that the “home state” rule did not apply to the mother’s petitions.

Simultaneous Proceedings

The trial court further erred as it failed to specifically cite to this statute in its order, since it stated that the proceedings in the other state (ie: Arizona) were in substantial conformity with the UCCJEA. However, the proceedings before the trial court could have been entertained as they were for domestication of the foreign order.  When the trial court concluded it did not have subject-matter jurisdiction based, at least in part, upon the simultaneous proceedings statute, it misapplied the statute.

The appeals court reversed the trial court’s order and remanded for the trial court to enter an order granting the Petitioner Mother’s petition to domesticate the foreign order and confirming its registration.


Case:              Butler v. Prine
Court:             Second District Court of Appeal.
Trial Judge:   Linda R. Allan.
Attorneys:      Tori A. Butler, Kathryn Marie Welsh.
Issues:            Attorney’s Fees. 

Holding:  An award of attorney’s fees post-dissolution is within the jurisdiction of the trial court but must be based on substantial and cogent evidence for the court. Among such evidence is that regarding the reasonableness and necessity of all the legal work underlying the attorney fees forming the basis of such an award. Further, the trial court must adequately consider this particular factor. In this case, the trial court erred insofar as, while the evidence before it justified a fee award of some amount, the trial court did not establish that it had adequately considered the reasonableness and necessity of all of the legal work underlying the attorney fees. The appeals court reversed the award of attorney's fees and remanded for the trial court’s reconsideration with authorization to receive additional 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 February 1, 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:              Rudnick v. Rudnick
Court:             Fourth District Court of Appeal.
Trial Judge:   Martin H. Colin.
Attorneys:      Robin Bresky, Jonathan Mann, Seth E. Schneiderman.
Issues:            Child Support.

Holding:        A trial court can include a party’s bonus, or other form of elevated income, when calculating child support obligations if there is evidence establishing the bonus, or elevated income, is regular and continuous. In this case, the trial court erred when it relied strictly on the Former Husband’s total annual income, including the bonus, for the previous year when calculating his child support obligation when there was uncontroverted evidence that the bonus was due to a specific non-recurring event (i.e., the 2012 presidential election). The appeals court reversed and remanded for the trial court to make additional findings consistent with this opinion.


Case:              Gonzalez v. Parisi
Court:             Fourth District Court of Appeal.
Trial Judge:   Renee Goldenberg.
Attorneys:      Jacqueline R. Hernandez-Valdes, Claudia Moncarz.
Issues:            Child Support, Foreign Judgment. 

Holding:        A petitioner seeking to domesticate and enforce a foreign decree or judgment pertaining to child support obligations and arrearages must present a trial court with competent, substantial evidence in support of his or her claims. In this case, the trial court erred in finding that the Former Wife’s assertions regarding a purported document providing for the payment of child support, with annual indexed increases, was the same agreement given effect in a foreign decree, when there was no competent, substantial evidence on point. The appeals court reversed as to the trial court’s order granting the petition to domesticate because of the lack of competent substantial evidence of the document purporting to create the support obligation.


Case:              J.A.I and J.K.C. v. B.R.
Court:             Second District Court of Appeal.
Trial Judge:   R. Thomas Corbin.
Attorneys:      Luis E. Insignares, Robert L. Donald.
Issues:            Paternity. 

Holding:        Orders compelling DNA testing to establish paternity are appropriate for certiorari review. Florida statute provides the procedures to be used in determining paternity when children are born out of wedlock. These include establishing that a signed and notarized voluntary acknowledgment of paternity creates a rebuttable presumption of paternity. Any challenge to this voluntary acknowledgment of paternity must be commenced before the sixty (60) day limitation period expires, after which, this acknowledgment of paternity becomes an establishment of paternity, to be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger.

A man who believes that he may be the father of a child may bring an action to determine the paternity of the child when paternity has not been established by law or otherwise. Paternity would be established "by law" when there has been an adjudication of paternity or by the filing of affidavits or stipulation acknowledging paternity as provided by Florida statute. Paternity would otherwise be established when a child is born to an intact marriage and recognized by the husband and the mother as being their child. In such a case, the husband would be the child's legal father to the exclusion of all others. Under any other interpretation, a husband could never be more than a presumptive father absent an adjudication of paternity.

Courts have extended this principle courts to children whose parents are both listed on the birth certificate at the time of birth and who were married two months later. However, where a mother married her husband and they signed the acknowledgement of paternity after the challenger had filed his paternity action, the acknowledgement of paternity created only a rebuttable presumption of paternity.

In this case, the trial court erred when it departed from the essential requirements of the law in the Petitioner’s motion for genetic testing despite the fact that he was precluded from bringing a cause of action to challenge the paternity of the child. The Petitioner was barred insofar as he filed outside the required sixty-day limitation period and by virtue of the fact that the Mother and her Husband signing an acknowledgment of paternity. The appeals court granted the petition for writ of certiorari and quashed the trial court's order requiring the parties to submit to genetic testing.


Case:              Card v. Card
Court:             Second District Court of Appeal.
Trial Judge:   Olin W. Shinholser.
Attorneys:      Mark A. Sessums, Lauren E. Jenson.
Issues:            Attorney’s Fees. 

Holding:        The appeals court maintains jurisdiction over trial court’s orders capping the amount of attorney’s fees recovered in dissolution proceedings.  If a party agrees to the methodology used by the trial court in determining the award, the award will likely be affirmed, considering all other aspects are properly determined. Under the invited-error doctrine, a party may not make or invite error at trial and then take advantage of the error on appeal.

In this case, the trial court did not err in making its determination as to matching attorney’s fees without making factual findings as to the need of the Former Wife and the Former Husband’s ability to pay. Specifically, at trial, the Former Wife argued that the court did not need to assess reasonableness because of a Joint Stipulation Provision between the parties as to fees, and particularly that they would match. On appeal , the Former Wife sought an order beyond the scope of the Joint Stipulation Provision on the ground that the trial court erred in failing to make factual findings as to her need or the Former Husband’s ability to pay attorney's fees and costs.   The appeals court determined that the trial court did not err in awarding a final amount of attorney's fees on a matching basis without specific factual findings about a need for attorney's fees, the corresponding ability to pay, and the reasonableness of the award given the Former Wife’s position at trial, which relied on the matching provision. She was not now allowed to argue against the position upon which she previously relied.


Case:              Spreng v. Spreng et al  
Court:             Fifth District Court of Appeal.
Trial Judge:   Dawn D. Nichols.
Attorneys:      Shimene A. Shepard-Ryan, Horace Smith, Jr., Sheila M. Ennis.
Issues:            Attorney’s Fees. 

Holding:          In making an award for attorney’s fees and costs, a trial court is required to make written findings of fact as to the attorney’s reasonable hourly rate and the reasonableness of the hours expended.  Failure to do so constitutes reversible error. The order must also be based on factual findings, supported by substantial and cogent evidence regarding the recipient party’s financial circumstances and the payor’s ability to pay. Finally, a party must properly preserve an error for appeal by filing a motion for rehearing, or taking other necessary and timely procedural steps. Failure to do so can prove fatal to an appeal.

In this case, the trial court did not err in failing to consider the Former Wife’s ability to pay her own legal fees and costs and in failing to set forth the reasonableness of the time expended and the hourly rate used to calculate the fee.  The order under review detailed the history of the marriage and the present financial circumstances of the parties and established that the Former Husband had a significant net worth and income stream while the Former Wife did not. The appeals court affirmed the trial court order despite the fact that the written order did not clearly consider the Former Wife’s financial circumstances and needs as well as Former Husband’s ability to pay. Despite this deficiency in its factual findings, the error was not preserved for appeal because the Former Husband failed to file a motion for rehearing. 


Case:              Waheed v. Brummer
Court:             Fifth District Court of Appeal.
Trial Judge:   Clyde E. Wolfe.
Attorneys:      Robert S. Walton lll.
Issues:            Attorney’s Fees. 

Holding:          Objections raised on appeal must be the same as those raised below. In order to be preserved for appeal, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation.  In this case, the trial court did not err in taking judicial notice of affidavits filed by the opposing parties in support of the requested attorney’s fees. Doing so did not effect a situation where the trial court made an award of attorney’s fees despite a lack of competent, substantial evidence to support its findings as to the amount of hours reasonably expended and the reasonableness of the hourly rate and the fact that a witness was not properly sworn in at trial.  The appeal was dismissed as the appellant failed to preserve any of the arguments for appeal. He did not object to the trial court taking judicial notice of the two affidavits, both of which were sworn, or to the unsworn testimony of the particular witness. The appeals court noted, in taking into consideration the numerous proceedings initiated by the self-represented appellant related to the overall dissolution proceedings, that it was “close to reaching” a point where it would prohibit him from filing additional appeals without being represented by a member of the Florida Bar.


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.