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 Two Weeks Ending September 13, 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:              Hahamovitch v. Hahamovitch
Court:            Florida Supreme Court.
Trial Judge:   Martin Colin
Attorneys:   Jeanne Brady, Frank Brady, Robert Sidweber, Karent Weintraub, Jane Kreusler-Walsh, Rebecca Vargas, Stephanie Serafin, Joel Weissman, and Sarah Saull.
Issues:            Prenuptial Agreements.

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


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

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


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

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


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

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


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


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


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

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

In this case, the trial court erred as it:

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

The appeals court reversed and remanded for reconsideration.


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

Notice

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

Evaluations and Release of Records

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

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

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


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

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

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

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

The appeals court reversed and remanded for an evidentiary hearing.


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

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

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

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


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

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


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

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

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


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

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


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

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

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


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

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

Durational Alimony

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

Lump Sum Alimony

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


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

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

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


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

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

 

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

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


Case:              Tucker v. Tucker
Court:            Fourth District Court of Appeal.
Trial Judge:   Merrilee Ehrlich.
Attorneys:     Theresa Yuricic.
Issues:            Equitable Distribution, Alimony, Contempt.

Holding:         A trial court’s property valuation must be supported by competent, substantial evidence. By entering the final order before a party has had an opportunity to be heard, a trial court deprives him or her of the due process guaranteed by the Florida Constitution. Facts are not established for consideration by the trial court, or by appellate review, when attorneys make representations in their arguments before the trial court. Same does not constitute evidence. In setting the value of assets, a trial court must base its decision on proper evidence and provide findings as to the valuation. In this case the trial court erred as its stock valuation for an equitable distribution was not supported by competent, substantial evidence because of three errors. The trial court erred in determining the value of the stock:

1.   before the Former Wife finished presenting her evidence;
2.  without hearing the Former Husband’s evidence, instead, relying on his attorney’s unsworn statement;
3.  by making its own assessment, without providing a factual explanation.

The appeals court reversed and remanded for the court to resume and complete the evidentiary hearing.


Case:              D.W.Q. v. A.B.
Court:            Fifth District Court of Appeal.
Trial Judge:   John M. Alexander.
Attorneys:     Robert L. McLeod II, Leslie H. Morton, William S. Graessle, Jonathan W. Graessle, John L. Whiteman, J. Stephen Alexander.
Issues:            Termination, Procedure.

Holding:         It is a denial of procedural due process rights of notice and  fair hearing to terminate parental rights on a ground not pleaded. Adequate notice and meaningful hearing are required before a trial court can properly order the termination of substantive rights. Additionally, a trial court's written order must establish that it considered and evaluated each of the relevant statutory factors in reaching its decision as to the manifest best interests of the child. Finally, a trial court must consider all the evidence admitted at trial before rendering its decision.

In this case, the trial court erred as it terminated the Father’s parental rights on a ground not alleged in the Mother’s petition. The petition did not allege termination for egregious conduct under the relevant provisions of Florida statute, (it simply alleged that termination was warranted under other statutory provisions.) Termination for egregious conduct was not tried by consent because it was not mentioned in opening or during the presentation of Mother's evidence at trial. Further, the trial court's order of termination was deficient in that it failed to include findings for the each relevant statutory factor regarding the child's manifest best interests. Finally, the trial court erred in that it did not, ostensibly, review all evidence before it prior to making the order. The appeals court reversed and remanded for the trial court to reconsider its ruling after reviewing all admitted evidence.


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

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

Florida Divorce & Family Law Update for 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 the Three Weeks Ending December 26, 2014

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:              Geraci v. Geraci
Court:             Second District Court of Appeal
Trial Judge:   Richard A. Weis, Cheryl K. Thomas
Attorneys:     Patricia K. Kuhlman, David A. Maney, Mark A. Linsky, Raymond T. Elligett, Jr., Amy S. Farrior, David M. Carr, Matias Blanco, Jr.
Issues:            Property Distribution, Alimony, Antenuptial Agreement

Holding:  A court may determine that an antenuptial agreement was abandoned or rescinded by the conduct of the parties during their marriage. This determination must be based on competent, substantial evidence of the parties’ conduct during the marriage. In this case, the trial court did not err in holding that, after reviewing all the evidence as to the parties’ conduct, the antenuptial agreement did not apply to an alimony or equitable distribution upon dissolution. However, the trial court was unclear as to its consideration regarding a certificate of deposit the Former Wife allegedly removed prior to the property division. As such, the appeals court affirmed on the issues of division and distribution and remanded the issue the certificate of deposit for consideration and an amended judgment.  


Case:              Porter v. Porter
Court:             Second District Court of Appeal
Trial Judge:   Marion L. Fleming
Attorneys:     Joseph J. Registrato, Seth R. Nelson, Kathryn M. Ashley
Issues:            Equitable Distribution, Parenting, Support. 

Holding:  If parties to a dissolution properly enter into stipulations regarding equitable distribution, then the stipulations bind the parties and also the court. In this case, the trial court erred in refusing to enforce the parties' stipulation regarding a vehicle and associated debt. In the final equitable distribution scheme the parties' debt, which exceeded their assets, was equally distributed between the parties. The trial court later made a further distribution based on a later unsworn representation by the Former Wife's counsel. No one disputed that the parties properly entered into the stipulations. The appeals court reversed the equitable distribution award and remanded with directions for the court to distribute the particular asset and its associated debt to the Wife. The trial court was also directed to refashion the portions of the equitable distribution scheme to which the parties did not stipulate in order to effect an approximately equal a distribution of the parties' debt. 


Case:              Brummer v. Brummer
Court:             Fifth District Court of Appeal
Trial Judge:   Willard Pope
Attorneys:      Robert H. McLean, Henry G. Ferro
Issues:            Parenting, Property Distribution, Child Support

Holding:  Ordering Psychological Evaluations & Obligations to Pay:  When formulating a time-sharing plan, a court may order a psychological evaluation of the parties and the children in concert with findings that this is in the best interests of the children. The court may also order one of the parties to pay for the evaluation, but it must find that the party has the ability to do so. In this case, the trial court determined the psychological evaluation of the parents and children was required and the Father was obligated to pay for it. However, the trial court did not make the necessary findings as to the children’s best interests and the Father’s ability to pay. The appeals court reversed the portion of the Final Judgment addressing the evaluation and its payment and remanded to make determinations on those issues. 

Non-Marital Property Determinations:
 

The determination and valuation of non-marital property must be done on competent and substantial evidence. In this case, the trial court erred in that it failed to properly consider the non-marital assets of the Former Husband and their characterization prior to distribution.  The relevant portion of the equitable distribution plan was reversed, and on remand, the trial court was directed to award to the Father his non-marital assets and properly determine the value of the firearm collection. 

Imputation of Income: 

Finally, the imputation of income in the Final Judgment for purposes of child support determinations must be supported by competent, substantial evidence. In this case, the trial court erred in imputing income to the Father in the absence of competent, substantial evidence. Accordingly, that part of the final judgment is reversed, and on remanded.
 


Case:              Assimenios v. Assimenios
Court:             First District Court of Appeal
Trial Judge:   Linda F. McCallum
Attorneys:     William S. Graessle, Jonathan W. Graessle, Barry S. Sinoff, Michael J. Korn
Issues:            Child Support, Parenting. 

Holding:  Imputing income to a party, or making a finding that they are voluntarily unemployed or underemployed, must be done in reliance on sufficient evidence. Notice and an opportunity to be heard is required when facing proceedings for breaching a parenting or support order.  In this case, the trial court erred in ordering the Former Wife responsible for the full cost of missed or cancelled appointments required under a parenting plan without affording her the opportunity to be heard and present evidence on point. In so doing, the trial court did not assess if her conduct was intentional or not, which is improper. The appeals court reversed the portion of the order imputing income to the Former Wife and remanded the case to the trial court to reconsider the issues. 


Case:              Winder v. Winder
Court:             First District Court of Appeal
Trial Judge:   Elzie S. Sanders
Attorneys:     Justin D. Jacobson, J. Mark Dubose, Jr., Karen S. Yochim
Issues:           Equitable Distribution, Alimony, Attorney’s Fees

Holding:  
It is improper to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings. However, if a spouse dissipates a marital asset during dissolution, resulting in a finding of misconduct by the trial court, then that asset is assigned to the spending spouse. In determining such misconduct and that a spouse has dissipated marital assets, the trial court must find the spouse acted intentionally. Such a finding is based on evidence showing that the marital funds were used for one party's own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. Misconduct is not shown simply by mismanagement or by the squandering of marital assets in a way of which the other spouse disapproves. A trial court’s ruling on equitable distribution is reviewed for an abuse of discretion.

In this case, the trial court erred in finding dissipation when it did not find misconduct on the part of the Former Husband in his handling of two marital assets. The evidence showed that certain funds were dissipated, but not improperly. Rather, the funds were used to pay marital expenses, including temporary support for the Former Wife, while the dissolution was pending.  On remand, the trial court was directed to exclude the funds received from the assets from the equitable distribution scheme.

Alimony

A trial court’s award of permanent alimony is reviewed for an abuse of discretion. In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in Florida statute supporting an award or denial of alimony. The test for determining an award of alimony is whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance, as based on the evidence. The purpose of permanent periodic alimony is not to divide future income to establish financial equality.  Marriages of less than 17 years in duration are of moderate duration (“grey-area” marriages) in which there is no presumption for or against permanent alimony.  Permanent alimony may be awarded following a marriage of moderate duration, if such an award is appropriate based upon clear and convincing evidence related to the enumerated factors (including but not limited to the financial resources of each party, the value of marital and non-marital assets and liabilities distributed to each, the standard of living established during the marriage, the contribution of each party to the marriage, and the sources of income available to either party.) Finally, in awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties.

In this case, the trial court erred in ordering permanent periodic alimony for the parties’ 10-year marriage in the absence of adequate factual findings as to the financial resources of each party and other relevant factors under statute. As this was a “grey-area” marriage, such findings in the final judgment of dissolution of marriage were required. The trial court’s failure to make such factual and written determinations precluded meaningful appellate review. In addition, the alimony award was reversed because the trial court failed to expressly find that no other form of alimony would be appropriate before awarding permanent alimony. On remand, the trial court was directed to take into consideration the effect of the appeal court’s holding regarding the exclusion of the funds from the two dissipated marital assets, as it would impact the financial resources of both parties. Further, given that the Former Husband’s current ability to pay alimony is at issue, the trial court was directed that, should it be faced with a situation where the Former Wife has a clear need for permanent alimony in the absence of his current ability to pay, then a nominal award of permanent alimony would preserve the trial court’s jurisdiction to revisit this matter, until a substantial change in the parties’ respective financial circumstances arises.

Attorney’s Fees

An award of attorney’s fees is based on the need of the party seeking the fees and the ability of the other party to pay the fees. The trial court must also make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors. A dissolution order directing a party to pay the other party’s fees and costs, which recites simply that the total amounts ‘are reasonable time spent and hourly rates,’ is insufficient.

In this case, the trial court erred as it made an award of attorney’s fees for the Former Wife when it did not make specific findings as to her need, the Former Husband’s ability to pay, and the reasonableness of her attorney’s fees and costs. As such, the appeals court was unable to accurately evaluate the propriety of the award. The appeals court therefore reversed  the order on attorney’s fees and remanded to the trial court for reconsideration in light of the changes in the parties’ relative financial resources following the trial court’s ultimate ruling. 


Case:              Wood Jr. v. Wood
Court:             First District Court of Appeal
Trial Judge:   Mark J. Borello
Attorneys:      Denise Watson, William S. Graessle, Michael J. Korn
Issues:            Child Support, Imputing Income

Holding:  Florida statute requires imputation of income to an unemployed or underemployed parent if such status is found by the court to be voluntary on that parent’s part. The trial court must undertake a two-step analysis of the circumstances and make findings based on cogent and substantial evidence. First, the trial court must conclude that the termination was voluntary; second, the court must determine whether the individual’s subsequent unemployment or underemployment resulted from the spouse’s pursuit of his or her own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received. While a parent’s motive in voluntarily quitting a job is relevant, it is simply one factor to be considered.

The party seeking a downward modification in their child support obligation bears the “heavier burden” where the original child support amount was by agreement of the parties.

The standard of review governing a trial court’s decision to modify child support and also to impute income for the purposes of calculating child support obligations is abuse of discretion.

In this case, the trial court erred when it abused its discretion when it granted the Former Husband’s motion to reduce his child support obligation; eliminate his arrearages; remove the security requirement for his payments; and impute income to the Former Wife when the evidence before it was insufficient and when it failed to undertake the required two-step analysis for imputing income.  The trial court improperly imputed income to the Former Wife solely because she voluntarily left her new employment and its order contained no particularized findings related to the current job market, her recent (5 years) work history, occupational qualifications, or the prevailing earnings level in the local community.  As well, the Former Husband’s motion to reduce his child support obligation was not supported by evidence sufficient to discharge his burden to establish grounds for a reduced child support obligation. He simply relied on a chart/child support worksheet indicating a reduction in his net income. The appeals court reversed and remanded with instructions for the trial court to reconsider the matters on proper evidence.


Case:              Caine v. Caine
Court:             First District Court of Appeal
Trial Judge:   Mary Polson.
Attorneys:     James M. Levy, E. Jane Brehany.
Issues:            Equitable Distribution.

Holding:  Florida law holds that a party is not entitled to any credits or setoffs upon the sale of the marital home unless the parties' settlement agreement, final judgment of dissolution of marriage, or final judgment equitably distributing assets or debts specifically provides that certain credits or setoffs are allowed or given at the time of the sale. If the parties do not have a settlement agreement involving the marital home, then the court shall consider specific factors before determining credits or setoffs in the final judgment. These include, but are not limited to; exclusive use and possession of the marital home is being awarded; alimony and child support awards and if such awards are being awarded to address expenses related to the marital home; value of the marital home to the party in possession and any other factor necessary to bring about equity and justice between the parties.

In this case, the trial court erred when it denied the Former Husband’s request for a set off of the amount of the fair rental value of the former marital home given that the final judgment was silent concerning his entitlement to a credit or setoff in the marital home.   The final judgment provided that all proceeds from the sale of this residence shall be equally divided by the parties after accounting for the expenses allocated to each party as stated above. The trial court failed to consider the required factors under statute. The appeals court remanded the credit/setoff issue for further proceedings.  


Case:              Topel v. Topel
Court:             Fifth District Court of Appeal.
Trial Judge:   Sally D.M. Kest.
Attorneys:      Sherri K. Dewitt, Marcia K. Lippincott.
Issues:            Child Support, Spousal Support.

Holding:   Although trial judges have broad discretion in setting temporary alimony awards, any such award must be supported by competent, substantial evidence that demonstrates the need for support and the paying spouse's ability to pay. The determination of the ability to pay alimony should be based on the party's net income. In this case, the trial court erred in relying on the gross income figure for the Former Husband, and ordering a temporary support award which exceeded his ability to pay. The appeals court vacated the temporary relief order and remand for reevaluation of all issues and the Former Husband making full and current disclosure of his income and expenses.


Case:              Berry v. Berry
Court:             First District Court of Appeal.
Trial Judge:   Angela C. Dempsey.
Attorneys:      William E. Whitlock, III, Ethan Andrew Way.
Issues:            Dissolution, Procedure.

Holding:  Florida Rules of Judicial Administration provide that prior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration. Such a motion must be filed within 20 days of the order of disqualification, unless good cause is shown for a delay in moving for reconsideration or other grounds for reconsideration exist. In this case, the trial court erred in granting further relief for the Former Wife while the appeal was pending. Specifically, the Former Wife appealed an order denying her motion to vacate the final judgment of dissolution of marriage and set aside the parties’ martial settlement agreement. Then, while the appeal was pending, the trial court granted her petition for writ of prohibition upon finding that an ex parte conference held during a hearing on her motion to vacate constituted a legally sufficient basis for the judge’s disqualification. The appeals court held that, pursuant to the Florida Rules of Judicial Administration, the proper procedure would be for the Former Wife to seek relief by filing a motion requesting the successor judge to reconsider the disqualified judge’s order. However, since she was precluded from filing such a former motion pending the appeal, the court remanded with directions that she be enabled to file her motion within twenty days of the issuance of the appeals court ruling. 


Case:              Oliver v. Stufflebeam
Court:             Third District Court of Appeal.
Trial Judge:   George A. Sarduy.
Attorneys:      Cristina Alonso, Elizabeth F. Schwartz, Daniel B. Rogers, Shannon P. Minter.
Issues:            Dissolution, Same-Sex Marriage. 

Holding:  Florida law does not recognize the validity of same-sex marriages. As such, in Florida, a petition for dissolution of marriage lacks a case or controversy, and therefore standing before the courts. Given Florida’s exclusive right, subject only to the confines of the Federal Constitution, to define both marriage and its dissolution, and the state of Florida’s recognition of marriage as only between a man and a woman, then same-sex couples do not have standing to seek the dissolution of a marriage that, by Florida law, does not exist. An action for annulment may lie insofar as, in granting an annulment, Florida typically determines the validity of a marriage in accordance with laws of the place where the marriage occurred. However, a court need not recognize as valid marriage which is valid in the jurisdiction where consummated if such recognition would affront the public policy of the forum state. In this case, the trial court was correct in determining that a petition for dissolution of marriage lacks a case or controversy requiring the expenditure of judicial labor. The appeals court affirmed the dismissal of the petition for dissolution. 


Case:              In Re: the adoption of K.A.G
Court:             Fifth District Court of Appeal
Trial Judge:   Alicia Latimore
Attorneys:     Mark M. O’Mara, Lorna M. Truett, Alyssa Flood, Bryan S. Gowdy, Jessie L. Harrell, Thomas Wade Young, John R. Hamilton, Jamie Billotte Moses
Issues:            Adoption, Termination of Parental Rights

Holding:  Under Florida statute, a child’s best interests are the paramount consideration when the court considers an adoption. The standard of review in a termination of parental rights case is highly deferential. The appeals court will review a judgment of adoption for substantial, competent evidence. A trial court’s finding of clear and convincing evidence will not be overturned unless it may be said that, as a matter of law, no one could reasonably find such evidence to be clear and convincing.

Additionally, Florida statute allows the trial court to terminate parental rights pending adoption if it determines, by clear and convincing evidence, and supported by written findings, that the parent has executed a valid consent to adoption. Such consent shall be obtained under and according to the requirements of relevant Florida statute. Therefore, before the trial court can consider the best interests of the child, it must first determine that the parent’s consent was properly given. A court may consolidate as many issues as is practical in adoption and dependency/termination proceedings and to conduct joint hearings or trials of any issues in related family cases. 

Finally, a trial court is authorized, in its sound discretion, to appoint a guardian ad litem for a child in an adoption proceeding. Courts have the inherent authority to protect children by appointing guardians ad litem when appropriate.

In this case, the trial court erred when it dismissed the adoption petition of the child’s Grandmother as it failed to find that Father’s consent to the adoption was, or was not, valid. If the trial court determined Father’s consent was valid, it should have then determined, in the same proceeding, whether the Grandmother should be allowed to adopt the Child. The trial court had before it two separate questions: (1) whether the Father’s parental rights could be terminated based upon his consent; and (2) if so, was adoption by the Grandmother in the Child’s best interests. Different evidentiary burdens of proof apply to each determination. The termination of parental rights must be proven by clear and convincing evidence. The best interests determination is to be proven by a preponderance of the evidence. The trial court further erred in its determination that it was not authorized to appoint a guardian ad litem for the Child. In fact, the relevant statute authorizes the trial court, in its sound discretion, to appoint a guardian ad litem for a child in an adoption proceeding. In addition, courts have the inherent authority to protect children by appointing guardians ad litem when appropriate. However, the trial court was correct in its determination that the Father’s consent to termination of his parental rights was not unconditional, but rather, was conditioned on the trial court granting Grandmother’s petition to adopt Child.

The matters were remanded with directions that, if the trial court concludes that the adoption by the Grandmother is not in the Child’s best interests, then the Father’s consent to the termination of his parental rights is deemed withdrawn. Finally, the recent adoption of Florida Family Law Rule of Procedure amendments allow a court to consolidate as many issues as is practical in adoption and dependency/termination proceedings and to conduct joint hearings or trials of any issues in related family cases. 


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.