Weekly Law Update on Florida Divorce & Child Custody Cases

Weekly summaries of decisions made by Florida Court of Appeals on actual divorce, child custody, child support and alimony cases.  

Florida Divorce & Family Law Update for Three Weeks Ending May 10, 2015

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

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

Holding:  The use of outdated financial information in calculating a child support award can constitute reversible error. In this case, the trial court erred in its modification of the child support plan in the final judgment when it used outdated financial information from both the Former Wife and the Former Husband in calculating the amount of child support.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


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

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


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

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


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

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

Life Insurance Policy

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


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

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


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

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


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

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


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

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

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


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

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

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


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


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

Equitable Distribution

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


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

A
ttorney’s Fees

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

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


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

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

Florida Divorce & Family Law Update for Week Ending April 5, 2015

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

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

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

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

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


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

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

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


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

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

Modification

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

Make-Up Visitation   

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

Attorney’s Fees

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


 

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

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

Florida Divorce & Family Law Update for Week Ending March 8, 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:               Guevara v. Guevara et al
Court:             Third District Court of Appeal.
Trial Judge:    Maria E. Dennis.
Attorneys:      Jay M. Levy, Ira B. Price, Mark E. Pollack.
Issues:             Procedure, Final Order. 

Holding:         Leave of court to amend a pleading shall be given freely when justice so requires. In this case, trial court erred when it abused its discretion in dismissing the Former Wife’s petition to set aside a Final Judgment (approving and ratifying the parties’ Marital Settlement Agreement, “MSA”) with prejudice to her claim that she did not receive moneys in exchange for her interest in the sale of certain real estate, as was provided for in the MSA. The appeals court reversed that portion of the trial court order and, on remand, the Former Wife was permitted to amend the portion of her claim as to the moneys to which she is entitled under the MSA. 


Case:               Castelli v. Castelli
Court:              Fourth District Court of Appeal.
Trial Judge:    Laura M. Watson.
Attorneys:      John H. Pelzer, Robert J. Moraitis, Peter M. Raimondi
Issues:             Contempt, Matrimonial Property. 

Holding:        A right of first refusal is a right to elect to take specified property at the same price and on the same terms and conditions as those contained in a good faith offer by a third person if the owner manifests a willingness to accept the offer. When the holder of a right of first refusal attempts to exercise his right but adds or deletes terms and/or conditions that render the offer different than that submitted by the third party prospective purchaser, the right of first refusal has not been properly exercised. However, a right of first refusal ripens into an option and is governed by the law of options when the owner of the property in question manifests a willingness to accept a good faith offer for the purchase of the property.  In that case, a party need not recite the terms of the third party contract he is agreeing to match when he exercises his right of first refusal; rather it is simply enough to announce an intent to match them. In this case, the trial court erred in rejecting the Former Husband’s attempt to exercise a right of first refusal with respect to the purchase of the former matrimonial home when, the right of first refusal had transformed into an option contract to which the Former Husband had agreed in principle (both before and after he invoked his “right of first refusal”). The trial court also erred in finding him in contempt for not executing a third party offer on the property. In this situation, the right of first refusal effectively transformed into an option contract when the Former Wife agreed in principle to accept the third party purchaser’s offer, both before and after the Former Husband had invoked his “right of first refusal.” The Former Husband had emailed indicating he would match the terms of another offer. This was sufficient to trigger the exercise of his right. The appeals court reversed and remanded to the trial court to strike the Former Husband’s contempt order, insofar as he was seeking to invoke and exercise his right of first refusal in the circumstances, and enforce the exercise of his right of first refusal.


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

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

Florida Divorce & Family Law Update for Week Ending March 1, 2015

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

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

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

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


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

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

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


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


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

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


 

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

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

Florida Divorce & Family Law Update for Week Ending February 1, 2015

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


Case:              Rudnick v. Rudnick
Court:             Fourth District Court of Appeal.
Trial Judge:   Martin H. Colin.
Attorneys:      Robin Bresky, Jonathan Mann, Seth E. Schneiderman.
Issues:            Child Support.

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


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

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


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

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

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

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

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


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

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

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


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

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

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


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

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


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

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

Florida Divorce & Family Law Update for the Week Ending January 18, 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:               D.C.F. & Guardian ad litem v. T.S. & A.B.
Court:              First District Court of Appeal.
Trial Judge:    David M. Gooding.
Attorneys:      Ward L. Metzger, Kelley Schaeffer, Crystal McBee Frusciante.
Issues:            Termination.
Holding:     In ordering termination, a trial court must find, on sufficient and cogent evidence, that the requirements under Florida statute are met and that termination of parental rights is in the manifest best interest of the child or children. Further, it is not appropriate to create an unsolicited permanent guardianship for the sole purpose of avoiding a least restrictive means outcome. Nor is it proper to rely on the availability of a non-adoptive placement with a relative in assessing the least restrictive means of addressing a situation.

In this case, the trial court erred in finding that the Department of Children and Families had both established the statutory factors for termination and that termination was in the best interests of the child.  Specifically, the trial court improperly relied on the availability of a non-adoptive placement with a relative when it assessed the least restrictive means of addressing the matter, which is expressly prohibited by statute. The appeals court remanded for the trial court to determine whether termination was appropriate, using the correct legal factors, and directed to re-evaluate the availability of least restrictive means without considering the non-adoptive placement with a relative.


Case:              Feuer v. D.C.F.
Court:             Third District Court of Appeal.
Trial Judge:    Not stated in opinion.
Attorneys:      Leslie Hinds St-Surin.
Issues:            Procedure. 

Holding:       A party is presumed to have received sufficient notice of a proceeding if it was mailed to him or her in conformity with the systematic business practice of the Office of Appeal Hearings. However, this is a rebuttable presumption, and a party is entitled to an evidentiary hearing on the issue of whether he or she received notice of procedural matters, including the issuance of an order. In this case, the issue is required to be considered by the trial court. The appeals court reversed the trial court’s decision and remanded for further proceedings. 


Case:               D.C.F. v. J.B.
Court:             Third District Court of Appeal.
Trial Judge:   Maria I. Sampedro-Iglesia.
Attorneys:      Javier Ley-Soto, Leslie Hinds St-Surin, Angela Vigil.
Issues:            Costs. 

Holding:        Unless a statute or a constitution authorizes the court to do so, it is a violation of Florida’s doctrine of separation of powers for a court to direct an executive department on how to expend funds appropriated to the department. A court may order an executive department to spend funds when a statute or constitution authorizes a court to do so. However, courts have rejected the idea that there is a doctrine of inherent judicial power that allows a court to direct how an executive department exercises its discretion to spend funds appropriated to the department. Rather, the  courts have repeatedly held that the judicial branch may neither interfere with the legislative branch by requiring funds to be spent by an executive agency in a manner not authorized by statute, nor interfere with an executive agency’s discretion in the spending of appropriated funds.

In this case, the trial court erred because no statute authorized the trial court to order the Department to pay for the travel of the pro bono Attorney Ad Litem for the purpose of facilitating the minor child’s therapy. The order violated the doctrine of separation of powers. Florida’s Constitution provides for the separation of powers between the three branches of state government. Under this doctrine, the judicial branch must not interfere with the discretionary functions of the legislative or executive branches of government absent a violation of constitutional or statutory rights.  The appeals court quashed the order.


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.