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 July 19, 2015

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


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

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

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


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

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

Dissipated Proceeds

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

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


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

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

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


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

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


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

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

Florida Divorce & Family Law Update for Week Ending July 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:             Thompson v. Malicki
Court:            Second District Court of Appeal.
Trial Judge:  Lee Ann Schreiber.
Attorneys:     Christopher R. Bruce.
Issues:           Relocation, Modification, Child Support

Holding:         A trial court's imputation of income must be supported by competent, substantial evidence. When calculating child support, Florida Statutes (2011) provide that the trial court shall impute income to a voluntarily unemployed or underemployed parent absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control. Where income is to be imputed, 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.

In this case the trial court did not err as to its modification of timesharing and the denial of relocation as those findings were based on cogent, substantial evidence. However, the trial court erred when it based an award of child on imputed income of the Former Wife which was not supported by sufficient findings or evidence. Reliance on past work history alone is insufficient to support imputation of income. Particularized findings are required regarding work history, occupational qualifications, and the current job market in the community to support the imputation of income. Failure to make these findings results in reversal.

The appeals court remanded for the trial court to take further evidence on this issue and recalculate the amount of child support as necessary.


 Case:             J.B. etc v. Florida D.C.F.
Court:             Florida Supreme Court.
Trial Judge:
Attorneys:
  Stephanie Christina Zimmerman, Dwight Oneal Slater, Ryan Thomas Truskoski, George E. Schulz, Jr., Robin L. Rosenberg, Wendie Michelle Cooper, Kelley Ruth Schaeffer.
Issues:            Termination, Process. 

Holding:         The right to counsel in termination of parental right (TPR) proceedings includes the right to effective assistance and requires a means of vindicating that right.
The Supreme Court considered two questions.

1.    Is the criminal standard of ineffective assistance of counsel applicable to claims of ineffective assistance of counsel in proceedings involving the termination of parental rights? The SC answered in the negative.

2.  Is any procedure available following the termination of parental rights to raise claims of ineffective assistance of counsel that are not apparent on the face of the record? The SC answered in the affirmative.The Supreme Court:

a. established the appropriate standard for determining whether counsel provided constitutionally ineffective assistance in termination of parental rights proceedings;

b.   provided a temporary process for bringing such claims of ineffective assistance; and

c.   directed the development of rules providing the procedure for vindicating that right.

1.     The Right to Counsel

Under Florida statutory law, parents have a right to counsel in both dependency and TPR proceedings. While the appointment of counsel is not required by the constitution, it is required under the due process clause of the United States and Florida Constitutions, in proceedings involving the permanent termination of parental rights to a child.

2.     The Right to Effective Assistance of Counsel

The right of indigent parents to counsel under the Florida Constitution in TPR proceedings necessarily includes the constitutional right to the effective assistance of counsel.

3.     The Standard for Ineffective Assistance

The standard for determining ineffective assistance of counsel claims is that the parent must establish that the result of the TPR proceeding would have been different but for the attorney’s deficient performance. Once tis is established, then the order terminating parental rights should be vacated, and the case returned to the circuit court for further proceedings.

4.  Temporary Procedure for Ineffective Assistance Claims in TPR Cases

Post-TPR proceedings must be expeditious.  A permanent such process will be developed. The Supreme Court set an interim process for bringing claims of ineffective assistance of counsel following the termination of parental rights. This interim process requires that claims of ineffective assistance first must be raised by the parent and ruled on by the trial court. The trial judge must ensure that the parents whose rights are at issue are informed of those rights such that at the end of each TPR adjudicatory hearing, the circuit court shall orally inform the parents for whom counsel was appointed regarding the right to:

(1)  appeal the order entered at the end of the TPR proceedings to the district court; and

(2) file a motion in the circuit court alleging that appointed counsel provided constitutionally ineffective assistance (if the court terminates parental rights).

In addition, a written order terminating parental rights shall include a brief statement informing the parents of the right to effective assistance and a brief explanation of the procedure for filing such a claim. Indigent parents (likewise without the assistance of appointed counsel) must file a motion in the circuit court claiming ineffective assistance of trial counsel in the TPR proceeding. Appeal from an order denying a motion alleging the ineffective assistance of counsel will be raised and addressed within any appeal from the order terminating parental rights. A parent, without assistance of appointed counsel, shall have twenty (20) days after the termination judgment issues within which to file a motion in the trial court alleging claims of ineffective assistance of counsel. The motion must contain the case name and number; the date the order of termination of parental rights issued; the specific acts or omissions in trial counsel’s representation of the parent during the TPR proceedings that the parent alleges constituted a failure to provide reasonable, professional assistance; and an explanation of how the errors or omissions prejudiced the parent’s case to such an extent that the result would have been different absent the deficient performance.

If a parent files an ineffective assistance of counsel motion, rendition of the order in the TPR proceeding will be tolled for purposes of appeal until the circuit court issues an order on the pro se ineffective assistance motion. If a parent chooses to file a motion claiming ineffective assistance of counsel, then counsel of record cannot continue representation.  

If the parent chooses to appeal, the attorney must certify, among other things, that:

a.     the parent so chose;
b.     a notice of appeal signed by counsel;
c.     the parent has been filed; and
d.     an order appointing appellate counsel, if any, has been entered.

Further, the appointed attorney representing an indigent parent, must, after issuance of an order terminating parental rights, discuss appellate remedies and determine whether the parent wants to appeal the TPR order. If the answer is affirmative, counsel must also inquire whether the parent intends to file a motion claiming ineffective assistance of counsel. If the parent responds affirmatively, then counsel must immediately seek withdrawal on this basis. In addition, if the parent subsequently files a motion alleging ineffective assistance despite the parent’s prior expression of a contrary intent, if counsel of record is also appellate counsel withdrawal is required at that time, and new counsel will be appointed for any appeal from the TPR order and from the disposition of the ineffective assistance of counsel motion.

When a parent files a motion alleging ineffective assistance of counsel, rendition of the trial court’s TPR order will be tolled for purposes of appeal until the trial court rules on any claim of ineffective assistance of counsel. The trial court shall review the ineffective assistance motion and order compilation of the record regarding the termination of parental rights proceedings on an expedited basis. Further, the trial court shall conduct proceedings, including an evidentiary hearing if necessary, to determine whether the motion should be granted or denied. The circuit court shall render an order within twenty-five (25) days after the motion alleging ineffective assistance was filed or the motion shall be deemed denied.

On appeal, the district court will review claims regarding the parent’s appeal from the trial court’s TPR order and from the disposition of the ineffective assistance motion. This process will apply to any case in which a judgment terminating parental rights is entered after this case becomes final. Creation of the permanent process and development of the attendant rules will be the task of a special committee.

In this case, the Supreme Court determined, that the appellant failed to present any basis for setting aside the order terminating her parental rights and affirmed the trial court’s decision.


Case:              S.V. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge:   Alan S. Fine.
Attorneys:      Karla F. Perkins, Kele Stewart, Laura E. Lawson.
Issues:            Dependency, Reunification. 

Holding:         A certiorari review of the trial court’s non-final order is limited to whether the trial court departed from the essential requirements of law in conducting its review of the general magistrate’s report and recommendations, resulting in irreparable harm to the petitioner that cannot be remedied on direct appeal.

In this case, the trial court did not err as it adhered to the essential requirements of law and applied the correct legal standards when it reviewed the general magistrate’s recommendations. Specifically, the trial court found that competent substantial evidence did not support the general magistrate’s finding that the Father, at this time, had the capacity to meet the children’s extensive and unremitting therapeutic needs. The appeals court denied the petition to review the lower court decision.


Case:             Quinn v. Quinn
Court:            Second District Court of Appeal.
Trial Judge:  John A. Schaefer.
Attorneys:      Ingrid Anderson.
Issues:            Child Support, Equitable Distribution. 

Holding:         When a parenting plan provides that the children will spend a "substantial amount of time" with each parent, defined as at least twenty per cent of the overnights per year, the award of child support should be adjusted as set forth in Florida Statutes (2013), requiring calculation based in part on the percentage of overnights the children spend with each parent. While the statute presumptively establishes the amount of child support, the court may deviate from the presumptive amount based on numerous factors, including the obligee parent’s low income and ability to maintain the basic necessities of the home for the child, the likelihood that either parent will actually exercise the time-sharing schedule set forth in the parenting plan  and whether all of the children are exercising the same time-sharing schedule. If the trial court wishes to deviate from the presumptive amount by more than five percent, the final judgment must include findings of fact to support the deviation and explain why the guidelines amount is unjust or inappropriate.

In this case, the trial court erred in ordering a number of overnights to each parent that contradicted those ordered in the parenting plan without explaining the discrepancy. This was an error on the face of the judgment requiring the appeals court to reverse and remand.


 Case:             Sikora v. Sikora
Court:            Second District Court of Appeal.
Trial Judge:   Richard A. Nielsen.
Attorneys:      Christine A. Hearn, Steven L. Brannock, Mark F. Baseman.
Issues:            Alimony, Equitable Distribution, Imputation. 

Holding:         Permanent Periodic Alimony

Permanent periodic alimony is used to provide the needs and the necessities of life to a Former Spouse as they have been established by the marriage of the parties. Absent special circumstances, an alimony award should not exceed a Recipients Spouse's need (excessive awards constitute an abuse of discretion). In the absence of special circumstances, a  trial court errs by awarding permanent, periodic alimony in an amount that exceeds a Former Spouse’s established needs. In this case, the trial court failed to include findings detailing any special circumstance that would explain why alimony was awarded in an amount exceeding the amount necessary to meet the Former Wife's need. The appeals court reversed and remanded for the trial court to either include such findings or reconsider the issue in its entirety.

Imputation

Trial courts may impute income from interest earned on retirement accounts if the income is readily available to a Former Spouse without penalty and without the need to reduce the principal. However, any decision to impute income must be supported by competent, substantial evidence. In this case, the trial court erred by imputing income to the Former Wife from her retirement accounts where there was no evidence to support the specific rate of return used by the trial court. Nor was there an agreement of the experts on the rate of return for the retirement accounts or evidence of the historical rate of return. Rather, the trial court selected the same rate of return used for imputing income on the Former Wife's investment accounts. The appeals court remanded with directions to adjust the alimony award accordingly.

Retroactivity

Generally, when a trial court awards alimony, it abuses its discretion if it fails to make the award retroactive to the date of filing the petition for dissolution. There is an exception where the trial court enters a temporary alimony award during the pendency of the case. In that situation, a retroactive award is limited to the date that the request for an increased award is filed. However, a temporary alimony award can be readdressed at a final hearing if the temporary award was made "without prejudice."

In this case, the parties stipulated that the Former Husband would pay temporary alimony, and the court awarded temporary alimony "without prejudice” such that the issue of temporary alimony could be readdressed at the final hearing. The appeals court ordered the reversal of the permanent, periodic alimony award, and on remand, directed the trial court reconsider the issue of retroactivity of any newly imposed permanent, periodic alimony award (after comparing such award to the stipulated temporary alimony).

Life Insurance

A trial court must include findings relating to a Former Spouse’s insurability at the time of trial and the cost of an insurance policy. In this case the trial court erred when it ordered the Former Husband to secure an insurance policy in the absence of any explanation for how this amount was arrived at or what it was based on. Moreover, trial court's failure to explain how it arrived at the specific dollar requirement was troublesome because the specific amount of coverage bore no correlation to projected alimony amounts and it was not possible for the appeals court to ascertain if the trial court ordered life insurance for purposes other than securing alimony due at the time of the Former Husband's death.

Lump Sum Alimony

Courts have previously reversed lump sum alimony awards that have no evidentiary support.  In this case, there was no evidence to justify the lump sum alimony award, and the trial court made no findings to explain its rationale. The appeals court reversed and remanded for the trial court to reconsider the award based on the evidence on the record.

 Attributing Dissipated Assets as Part of Equitable Distribution

It is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings. However, an exception to this general proposition exists when misconduct during the dissolution proceedings results in the dissipation of a marital asset. The misconduct necessary to support inclusion of dissipated assets in an equitable distribution scheme does not include mismanagement or simple squandering of marital assets in a manner of which the other spouse disapproves. Instead, to include a dissipated asset in the equitable distribution scheme, there must be evidence of the spending spouse's intentional dissipation or destruction of the asset, and the trial court must make a specific finding that the dissipation resulted from intentional misconduct.

n this case, the trial court erred failing to apply to the standard for attributing dissipated assets to a spouse in dissolution proceedings.  Specifically, the trial court erred in attributing monies to the Former Wife in the equitable distribution in such a way that amounted to a sanction for failing to comply with a documenting requirement. The appeals court reversed the trial court's equitable distribution awards and remanded for further proceedings. 


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 June 7, 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:                Bisel v. Bisel
Court:              Fourth District Court of Appeal.
Trial Judge:    Laura M. Watson.
Attorneys:      Kim L. Picazio.
Issues:             Procedure, Child Support. 

Holding:    Florida law clearly holds that a trial court lacks jurisdiction to hear and to determine matters which are not the subject of proper pleading and notice. To allow a court to rule on a matter without proper pleadings and notice violates a party’s due process rights.  In this case, the trial court erred in that the notice of hearing had several problems, the first of which is that the description failed to notify Former Wife that the trial court would consider and rule upon her supplemental petition for upward modification of child support. Secondly, the Former Wife did not receive timely notice of the hearing as it related to her supplemental petition. Finally, pursuant to Florida Family Law Rules of Procedure, the trial court (not the Former Husband) was required to enter an order setting the action for trial. The appeals court reversed and remanded for further proceedings.


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.