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 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Holding:  The use of outdated financial information in calculating a child support award can constitute reversible error. In this case, the trial court erred in its modification of the child support plan in the final judgment when it used outdated financial information from both the Former Wife and the Former Husband in calculating the amount of child support.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 April 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:             Putzig v. Bresk
Court:            Fourth District Court of Appeal.
Trial Judge:   Michael G. Kaplan.
Attorneys:     Richard F. Della Fera.
Issues:            Dating Violence.

Holding:      Florida statute requires a full hearing before entry of permanent injunction against dating violence. A full evidentiary hearing includes direct examination of witnesses, cross-examination of witnesses, and the presentation of any other evidence. A trial court abuses its discretion when it denies parties to a petition for a dating violence injunction the opportunity to call witnesses, present evidence, or cross-examine witnesses.  In this case, the trial court violated due process rights by not affording both parties the opportunity to do so. The appeals court reversed and remanded for a hearing. 


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, Patricia Murphy Propheter.
Issues:            Termination. 

Holding:     A parent has a fundamental liberty interest in the care, custody and companionship of his child. The only limitation on this right is the ultimate welfare of the child itself. To terminate a parent’s rights in his or her child, the state must first meet the statutory requirements to prove a statutory ground for termination and prove that termination is in the manifest best interest of the child. Then, to satisfy constitutional concerns, it also must prove that termination is the least restrictive means to protect the child from serious harm. The state must present clear and convincing evidence to support each element. Florida statute further provides that incarceration, or expected incarceration, for a significant portion of the child’s minority is a ground for termination.

In this case, the trial court did not err given that the Biological Father would have been incarcerated for nearly fifty percent of the child’s life. This, combined with the fact that the child was currently in foster care and the fact that Biological Father could not take custody of the child for several years, weighed in favor of termination.


Case:              Broga v. Broga
Court:             First District Court of Appeal.
Trial Judge:   Karen Gievers.
Attorneys:      Emilian “Ian” Bucataru, Marilyn K. Morris.
Issues:            Alimony, Child Support. 
Holding:    Imputing income is a two-step analysis: (1) the determination of whether the parent’s underemployment is voluntary; and (2) if so, the calculation of imputed income. Florida statute provides that monthly income shall be imputed to an unemployed or underemployed parent if the court finds such unemployment or underemployment is voluntary. The employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available. The same factors are applied for awards of child support and of alimony.

Given the uncertain nature of future employment, a court must make particularized findings regarding work history, occupational qualifications, and the current job market in the community. Failure to do so results in reversal. The prevailing income ‘in the community,’ not income that could have been earned from a relocation, is to be used.

In this case, the trial court erred in imputing income as the evidence of (1) the former husband’s occupational qualifications and (2) the prevailing earning level in the community was sparse and conflicting. Also, while there was no dispute concerning the Former Husband’s past work history, reliance on this factor alone was insufficient to impute income. While there were sufficient findings and competent substantial evidence of the Former Husband’s prior earnings, the same could not be said regarding the Former Husband’s occupational qualifications and the prevailing earning levels for similar positions within the relevant community. The appeals court reverse and remanded for the trial court to further address imputation of income.


Case:              Harris v. Harris
Court:             Fifth District Court of Appeal.
Trial Judge:   Heather L. Higbee.
Attorneys:     Jeffrey A. Conner.
Issues:            Alimony, Attorney’s Fees. 

Holding:      A trial court’s use of different standards for calculating each spouse’s income is an abuse of discretion. Courts properly impute income from a second job or secondary source where record evidence clearly reveals that such secondary income has been earned on a recurrent or steady basis. As for attorney’s fees, evidence is required to establish the claim. In this case, the trial court erred when it considered Former Husband’s secondary sources of income while ignoring Former Wife’s. The error was in its failure to consider her secondary income when there was sufficient evidence to demonstrate that she was able to earn a recurrent and steady secondary salary, in addition to working full-time. There was no abuse of discretion in the trial court’s decision to impute the minimum wage for a full-time workweek.  The trial court also erred in awarding Former Wife attorney’s fees, as no evidence supported the reasonableness of the fee award. The appeals court remanded. 


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 April 12, 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:              Liberatore v. Liberatore
Court:            Fifth District Court of Appeal.
Trial Judge:   Bob Leblanc.
Attorneys:     Robin I. Bresky, Cynthia Greene.
Issues:            Equitable Distribution.

Holding:      On remand, a lower court must strictly follow the instructions of an appellate court. Typically, when a lower court commits reversible error in valuing or distributing marital assets, the entire distribution plan must be reversed and reconsidered on remand. This is because each division and distribution of a marital asset and liability is interrelated to form an overall scheme fair to both parties. However, in some instances, an error in an equitable distribution plan can be corrected in isolation; in those circumstances, an appellate court may direct the lower court to correct only that error in isolation. In this case the trial court erred in moving away from the instructions of the appeals court in reconsideration of equitable distribution. The trial court proceeded, at the request of the Former Husband, to address a post-judgment sale of the parties’ martial residence while reconsidering the distribution of the marital assets. The appeals court reversed and remanded for reconsideration of the entire equitable scheme. 


Case:              M.N. Jr. v. D.C.F.
Court:             Fourth District Court of Appeal.
Trial Judge:   Lawrence Mirman.
Attorneys:     Chet E. Weinbaum, Karla Perkins, Laura E. Lawson.
Issues:            Adoption. 

Holding:      Florida Statutes (2013) provides that an action or proceeding of any kind to vacate, set aside, or otherwise nullify a judgment of adoption . . . may not be filed more than 1 year after entry of the judgment terminating parental rights. In this case, the trial court erred in dismissing a biological Father’s second motion to set aside the termination order in the adoption of his biological child on procedural grounds (ie: notice). In fact, the motion in issue was statute-barred as it was filed more than one year after the termination order was entered. The appeals court affirmed. 


Case:              Ledoux-Nottingham v. Downs
Court:             Fifth District Court of Appeal.
Trial Judge:    Bob LeBlanc.
Attorneys:      Jamie Billotte Moses, Leigh Anne Miller, Andrew T. Windle.
Issues:            Grandparent Visitation, Attorney’s Fees. 

Holding:          Jurisdiction

A Florida court shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this part or the determination was made under factual circumstances meeting the jurisdictional standards of Florida laws. In this case, trial court did not err when it enforced the Colorado order determining visitation for the Grandparents after the Mother moved from Colorado to Florida. Since the Colorado order was a final judgment and emanated from a “child custody proceeding” within the meaning of Florida Statutes (2013), it became enforceable in Florida pursuant to the Full Faith and Credit Clause. Accordingly, the trial courts was required, without discretion, to give recognition to final judgments of another state.

Modification

A party seeking modification of a time-sharing schedule has the burden of  proving (1) a substantial and material change in circumstances, and (2) that the best interests of the child will be promoted by such modification. The substantial and material change in circumstances must have occurred subsequent to the last order addressing time-sharing.    In this case, the trial court properly determined that there had not been a substantial and material change in circumstances during the 13 days between the entry of the Colorado order and the filing of Mother’s petition.

Make-Up Visitation   


In such circumstances, a trial court is not necessarily precluded from ordering make-up visitation. On remand, the trial court was directed to promptly address the Grandparents’ motion for make-up visitation.

Attorney’s Fees

Florida States (2013) provides that if a court has personal jurisdiction over the party against whom attorney’s fees are being assessed, the court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including attorney’s fees  unless the party from whom fees  are sought establishes that the award is clearly inappropriate. In this case, the trial court erred in summarily denying the Grandparents’ request for attorney’s fees, because it did not consider whether assessing attorney’s fees against Mother would be “clearly inappropriate.” On remand, the trial court was directed to make specific findings as to the entitlement to attorney’s fees. 


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 April 5, 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:               Horowitz v. Horowitz
Court:             Second District Court of Appeal.
Trial Judge:    Jalal Harb.
Attorneys:      Rafael J. Echemendia.
Issues:            Injunction for Protection Against Domestic Violence.
Holding:         Cyberstalking is a form of domestic violence against which a person may
obtain an injunction. The petition for injunction must be supported by competent, substantial evidence. Florida law defines cyberstalking as engaging in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person,
causing substantial emotional distress to that person and serving no legitimate purpose.

Unlike email communication, posts to one's own Facebook page are not directed at a specific person but are instead posted for all of the user's Facebook "friends" to see, depending on a user's privacy settings. “Hacking” into a Facebook account is not cyberstalking at it is not an electronic communication. A Petitioner must also show sufficient emotional distress related to the conduct complained of.

In this case, the trial court erred in granting the petitioner an injunction against the Respondent for cyberstalking because there was insufficient evidence regarding the specific elements of the offence.

The Respondent’s Facebook posts were not "directed at a specific person". The evidence showed he had posted the questionable comments to his own Facebook page and the Petitioner was neither tagged nor identified. The pertinent allegations of the Respondent’s “hacking” into Petitioner’s account were insufficient insofar as hacking is not cyberstalking.  Finally, although she testified that the posts were a concern, the Petitioner failed to establish she suffered substantial emotional distress as a result. The appeals court reversed.


Case:              A.S. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge:   Kathleen J. Kroll.
Attorneys:     Frank A. Kreidler, Rosemarie Farrell, Jorge Anton, Patricia M. Propheter.
Issues:           Termination of Parental Rights. 

Holding:        Florida statutes establish that: a) the termination of parental rights because of abandonment must be based on clear and convincing evidence; b) a prospective parent cannot be determined to have abandoned his child until paternity is established; c) the DCF must make good faith efforts to reunification; and e) establish that termination is the least restrictive means of protecting a child from harm. Specifically, DCF must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child.   The trial court must make a specific inquiry when the identity or location of a parent is unknown and a petition for termination of parental rights has been filed. The trial court must direct the DCF to conduct a diligent search for the prospective parent if the prospective parent’s location is unknown.  When such a search fails to locate a prospective parent, then DCF can proceed with a petition for termination of parental rights.

In this case, the trial court erred in ordering termination against the Father in the absence of clear and compelling evidence. The trial court erred further as it determined he abandoned the child based on inquiries of conduct prior to paternity being established.  Finally the trial court erred in ordering termination when there was no evidence that reunification was not possible and that termination was the least restrictive means available to protect the child from harm. 


Case:              Ledoux-Nottingham v. Downs
Court:             Fifth District Court of Appeal.
Trial Judge:   Bob LeBlanc.
Attorneys:     Jamie Billotte Moses, Leigh Anne Miller, Andrew T. Windle.
Issues:            Grandparent Visitation, Attorney’s Fees. 
Holding:         Jurisdiction

A Florida court shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this part or the determination was made under factual circumstances meeting the jurisdictional standards of Florida laws. In this case, trial court did not err when it enforced the Colorado order determining visitation for the Grandparents after the Mother moved from Colorado to Florida. Since the Colorado order was a final judgment and emanated from a “child custody proceeding” within the meaning of Florida Statutes (2013), it became enforceable in Florida pursuant to the Full Faith and Credit Clause. Accordingly, the trial courts was required, without discretion, to give recognition to final judgments of another state.

Modification

A party seeking modification of a time-sharing schedule has the burden of  proving (1) a substantial and material change in circumstances, and (2) that the best interests of the child will be promoted by such modification. The substantial and material change in circumstances must have occurred subsequent to the last order addressing time-sharing.    In this case, the trial court properly determined that there had not been a substantial and material change in circumstances during the 13 days between the entry of the Colorado order and the filing of Mother’s petition.

Make-Up Visitation   

In such circumstances, a trial court is not necessarily precluded from ordering make-up visitation. On remand, the trial court was directed to promptly address the Grandparents’ motion for make-up visitation.

Attorney’s Fees

Florida States (2013) provides that if a court has personal jurisdiction over the party against whom attorney’s fees are being assessed, the court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including attorney’s fees  unless the party from whom fees  are sought establishes that the award is clearly inappropriate. In this case, the trial court erred in summarily denying the Grandparents’ request for attorney’s fees, because it did not consider whether assessing attorney’s fees against Mother would be “clearly inappropriate.” On remand, the trial court was directed to make specific findings as to the entitlement to attorney’s fees.
 


 

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 March 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:             Isaacs v. Isaacs
Court:            Fourth District Court of Appeal.
Trial Judge:   Arthur M. Birken.

Attorneys:     Pamela Jo Bondi, William H. Branch.
Issues:           Contempt. 

Holding:      Under Florida Family Law Rules, a contempt order must contain findings that a contemnor had the present ability to pay support under a prior court order and wilfully failed to comply. The issued contempt order must present a recital of the facts on which the court made the findings upon which it is based. Where a court orders incarceration as the appropriate sanction, the contempt order must also contain a separate affirmative finding (emphasis added) that the contemnor has the present ability to comply with the purge and the factual basis for that finding. In this case, the trial court erred as its order contained no recitation of facts to support the finding that appellant had the ability to comply with the court’s prior order. The appeals court reversed and remanded.


Case:              Purin v. Purin
Court:            Second District Court of Appeal.
Trial Judge:   Elizabeth V. Krier.
Attorneys:     Matthew E. Thatcher, Cynthia B. Hall.
Issues:           Alimony. 

Holding:        When determining alimony awards, the starting point is one party’s need and the other’s ability to pay. Generally, trial courts may not consider future events in setting current alimony amounts due to the uncertainty and lack of evidence. An obligor's retirement does not mandate termination of an alimony award. Retirement simply allows the trial court, upon proper motion, to revisit the parties' respective applicable circumstances. A trial court may consider a combined alimony award (being a nominal amount of permanent periodic alimony in conjunction with the durational alimony award). This approach may minimize the need for litigation at the time of an payor’s retirement while preserving an payee’s right to support if he or she continued to have need. Florida statute allows for the extension of durational alimony if a party can demonstrate exceptional circumstances showing the need for continued alimony.

In this case, the trial court erred in awarding durational, rather than permanent, alimony for a long-term marriage by speculating on the parties' needs and ability to pay when the Former Husband retired. A current alimony issue could not be properly resolved by addressing future contingencies. The trial court also misinterpreted statute in denying the Former Wife her statutory right to seek an extension of a durational alimony award. The appeals court reversed in part and remanded for further proceedings. 


Case:             Westwood v. Westwood
Court:            Fifth District Court of Appeal.
Trial Judge:  Robert M. Evans.
Attorneys:    Matthew R. McLain, Nicholas A. Shannin.
Issues:           Modification, Process. 
Holding:      It is not improper for a trial court to deny a hearing on an unserved petition for modification. To succeed on modification a party must plead and prove a substantial, material, and unanticipated change of circumstances, and establish that modification is in the children’s best interest. In this case, the trial court did not err in denying the hearing on the Former Wife’s petition insofar as it was correct in viewing the pleading as an untimely motion for rehearing or reconsideration (rather than a supplemental petition). While the petition attempted to cover all bases, the Former Wife neither obtained a summons nor served the petition on the Former Husband. The appeals court’s decision was without prejudice to the Former Wife to re-file a properly served petition for modification. 


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

Holding:       It is improper for a trial court to order termination of parental rights as the least restrictive means available to protect a child, or children, from serious harm when its findings of fact regarding a parent-child relationship are incongruous with that ruling. Specifically, if a trial court finds on the evidence that there is a bond or relationship between the parent and the child or children, it is incongruous to order termination as the least restrictive means of protection. Before parental rights in a child can 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 or children. The standard of review in termination of parental rights cases is highly deferential. In this case, while the trial court did not err to the extent it found that termination was warranted under Florida statute and because it was in the children’s manifest best interests, it did err to the extent that it found termination of the Mother’s parental rights was the least restrictive means available to protect the children from serious harm. The appeals court reversed termination on the least restrictive means basis and remanded for further proceedings consistent with this opinion.


 

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.