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 2 Weeks Ending April 1, 2016

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:             J.M. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge:  J. David Langford.
Attorneys:     Antony P. Ryan, Melanie L. Casper, Rosemarie Farrell, Laura J. Lee.
Issues:            Dependency.
Holding:       Without evidence showing that domestic violence has occurred when a child or children were present, or that they were aware of such violence, a finding of impending harm to the children is unsubstantiated. For purposes of dependency, harm to a child includes extensive, abusive, and chronic use of a controlled substance or alcohol by a parent when the child is demonstrably adversely affected by such usage. In this case, the trial court erred in ordering dependency in the absence of competent substantial evidence that: a. the child was aware of alleged incidents of violence between the Mother and Father, or was affected by such instances; and b. the Mother was under the influence of substances in the presence of the Child, or that any substance abuse adversely affected the Child (despite her being under the influence in the presence of others). The appeals court reversed.


Case:              J.B. and D.C.F. v. C.S.
Court:            First District Court of Appeal.
Trial Judge:   Karen A. Gievers.
Attorneys:   Theresa Flury, Kelley Schaeffer, Dwight O. Slater, Thomasina Moore,    Ronald Newlin, Lorraine M. Donovan-Lepanto, Mike Donovan, Stephen Johnson.
Issues:            Termination, Reunification.
Holding:         Where the trial court's findings are supported by competent substantial evidence and the appellate court cannot say that no one could reasonably find such evidence to be clear and convincing, the findings will not be set aside on appellate review. In this case, the trial court did not err as it made its determination that statutory grounds for termination of parental rights existed; that termination promoted the children’s best interests; and that termination was the least restrictive means to protect the children from serious harm as competent substantial evidence. The appeals court affirmed.


Case:             Children’s Home Society of Florida v. V.D.
Court:            First District Court of Appeal.
Trial Judge:  Karen A. Gievers.
Attorneys:     Cheryl R. Eisen-Yeary, Elizabeth W. Willis, James V. Cook.
Issues:            Adoption.
Holding:       Under Florida Statutes, an adoption agency is not required to serve a notice of intended adoption plan on a putative father unless the mother has first identified a known and locatable unmarried biological father by the date she signs her consent for adoption. . Likewise, the statute does not require the agency to conduct a diligent search for the putative father unless the mother has identified a potential father within the timeframes required by the statute which are identified as the date the mother signs the consent for adoption. In this case, the trial court erred as no putative father was known, or locatable, or identified, by the time the birth mother signed her consent for adoption. Although that is the only time frame relevant under the statute, it is also true that the limited information the birth mother provided later, under questioning from the trial court, likewise did not identify a known or locatable putative father. The Society was not subject to any diligent search requirement beyond what it had already completed prior to the termination of parental rights. The appeals court reversed.


Case:             Demmi v. Demmi
Court:            First District Court of Appeal.
Trial Judge:   David Rimmer.
Attorneys:      Bradley G. Johnson, Bradley G. Fisher.
Issues:            Child Support/Expenses.
Holding:         In making an order as to non-covered medical expenses, if such expenses are ordered to be separately paid, a trial court must allocate these expenses in the same percentage as the child support allocation unless there is a rationale in the final judgment to the contrary.  In this case, the trial court erred in ordering the parties to each be responsible for the payment of 50% of the non-covered medical expenses of the children because such allocation conflicted with the final judgment’s allocation of the parties’ relative financial responsibility for child support.


Case:             Felice v. Felice
Court:            Second District Court of Appeal.
Trial Judge:   Christine Greider.
Attorneys:     
Issues:            Equitable Distribution, Parenting.
Holding:         In this case, the trial court erred by including a portion of the value of the Former Husband's premarital home as a marital asset in the equitable distribution scheme. While the parties’ did not specifically refer to any right to the appreciation or enhancement of the Former Husband’s premarital home the broad language of the agreement expressly waived the Former Wife's rights and claims in the property and included the appreciated or enhanced value of the property that occurs during the marriage. The court further erred as it failed to incorporate into the amended final judgment the amended parenting plan that the trial court ordered on rehearing from the original final judgment. The appeals court reversed.


Case:              R.W. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge: Jeri B. Cohen.
Attorneys:      Albert W. Guffanti, Karla Perkins, Laura J. Lee (Sanford).
Issues:            Termination.
Holding:         A trial court may properly question witnesses when required by the interests of justice. In this case, the trial court did not err in its participation in the questioning of witnesses at an adjudicatory hearing. Such questioning did not constitute an abandonment of the trial court’s role of neutrality and impartiality and did not deprive the appellant of due process.  The appellant failed to object to most of the court’s questions it now relies upon for this claim. The appeals court affirmed.


Case:             Collins v. Collins, Sr.
Court:            Fifth District Court of Appeal.
Trial Judge:   Mark J. Hill.
Attorneys:     Brandon M. Tyson, Paul W. Darby, Thomas Holden.
Issues:            Parenting.
Holding:      In awarding limited or restrictions on parental responsibility, a trial court must make specific findings on point. In this case, although the trial court’s factual findings supported its decision, the appeals court remanded because the final judgment failed to include a specific finding that shared parental responsibility would be detrimental to the children.


Case:             Nuila v. Stolp
Court:            Fifth District Court of Appeal.
Trial Judge:   Kelly J. McKibben.
Attorneys:      Lindsey M. Sharp.
Issues:            Injunction Against Domestic Violence.
Holding:       An injunction against dating violence is statutorily authorized if a petitioner proved three elements: (1) a dating relationship within the past six months; (2) at least one occasion of dating violence; and (3) reasonable cause to believe that he or she is in imminent danger ofanother act of dating violence. In this case, the trial court erred as, while there was competent substantial evidence on that the parties had dated in the past 6 months and there had been an episode of dating violence, the third statutory element, reasonable cause to believe that the petitioner was in imminent danger of another act of dating violence, was not supported by competent substantial evidence. The appeals court reversed.


Case:             G.K. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge:   J. David Langford.
Attorneys:     Antony P. Ryan, Richard G. Bartmon, Rosemarie Farrell, Laura J. Lee.
Issues:            Dependency.
Holding:         An order for dependency must be based on competent substantial evidence, avoiding inadmissible hearsay evidence, of risk to the child/children.  In this case, the trial court erred in ordering dependency when there was no competent substantial evidence that the children where at risk or witnessed incidents of domestic violence involving the parents, or that the Father posed a current threat to the safety of the children. The trial court also relied upon inadmissible hearsay evidence to support the order of dependency. The appeals court reversed and remanded.


Case:             Abramovic v. Abramovic
Court:            Fourth District Court of Appeal.
Trial Judge:   Jeffrey Dana Gillen.
Attorneys:     Jamie Billotte Moses.
Issues:            Equitable Distribution, Exemption.
Holding:         A lump sum equalizing payment to accomplish equitable distribution is properly awarded only when the evidence reflects a justification for such an award and the ability of the paying spouse to make the payment without substantially endangering his or her economic status. The custodial parent presumptively is entitled to the tax exemptions but may release them to the noncustodial parent. A final judgment awarding a dependency tax exemption must require that the exemption be conditional on the paying spouse’s being current in his support obligations. In this case, the trial court erred in requiring the Former Wife to make an equalizing payment which the evidence showed she could not afford; giving the Former Husband the dependency exemption without conditioning it on his compliance with his child support obligations, and not alternating the dependency exemption between the parties. The appeals court reversed.


Case:             McGlynn v. Tallman-McGlynn
Court:            Fourth District Court of Appeal.
Trial Judge:   Amy L. Smith.
Attorneys:      Robert M. Lewis, Catherine S. Eaton, Cash A. Eaton.
Issues:            Alimony, Child Support.
Holding:         Any error on the part of the trial court may be considered invited error. Matters argued for the first time in a reply brief will not be considered by the reviewing court. In this case, the trial court did not err in computing and applying the Former Husband’s net income when determining child support payments. The error raised by the Former Husband regarding calculation of his income was invited error as the court’s calculations were based on his affidavit evidence and not raised properly on appeal (he raised it in a reply brief). The Former Husband’s arguments regarding calculations were not supported by the record, and the trial court’s conclusions that he could to survive economically after making all required payments was supported on the evidence. The appeal court affirmed.


Case:             Palmer v. Palmer
Court:            Fifth District Court of Appeal.
Trial Judge:   Ann Melinda Craggs.
Attorneys:      Robert H. McLean, Bureus Wayne Argo.
Issues:            Parenting, Time-Sharing.
Holding:         In this case, the trial court did not err in allowing the Former Husband to reopen the evidence after the trial had concluded and regarding time-sharing. However, it did err in denying the Former Wife’s petition to limit their child’s exposure to dogs (due to allergies) in the face of expert evidence supporting a restriction and the Former Husband conceding that a restriction was in the child’s best interest. The appeals court reversed and remanded regarding restricting exposure to dogs


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 May 17, 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 towward 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.


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 Week Ending April 12, 2015

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

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

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


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

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


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

Holding:          Jurisdiction

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

Modification

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

Make-Up Visitation   


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

Attorney’s Fees

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


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

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

Florida Divorce & Family Law Update for Week Ending March 29, 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:              W.W. v. D.C.F.
Court:             First District Court of Appeal.
Trial Judge:   Not Stated.
Attorneys:      Randi E. Dincher, Kelley Schaeffer, Ward L. Metzger.
Issues:            Appellate Jurisdiction.

Holding:       Pursuant to recent amendments to Florida Rules of Appellate Procedure, a post-dependency order on an authorized motion that fully resolves the issues raised by the motion is reviewable as a final order.  An appeals court can properly review a post-dependency final order by appeal rather than by petition for writ of certiorari.


Case:              Clark v. Clark
Court:             First District Court of Appeal.
Trial Judge:   Not Stated.
Attorneys:      Michael J. Korn, David A. Garfinkel, William S. Graessle, Jonathan W. Graessle.
Issues:            Procedure. 
Holding:         In order to decide whether a motion to disqualify is legally sufficient, a
determination must be made as to whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial. Adverse rulings are insufficient to show bias. In this case, the trial court did not err when it issued a supplemental final judgment discounting the credibility of the Petitioner’s witness and tracking the language of the Respondent’s proposed supplemental final judgment. Purported statements made by the trial court to the Petitioner’s witness were insufficient to show bias particularly as the trial court also noted that it was a difficult case and that one proposed order had to be selected over the other. 


Case:              Wade v. Wade
Court:            Third District Court of Appeal.
Trial Judge:   George A. Sarduy.
Attorneys:      Lisa Marie Macci, Evan R. Marks, Carolyn W. West.
Issues:            Parenting, Custody. 

Holding:       Where the issues on appeal arise from a final post-judgment order on time-sharing and custody and pertain to whether the trial court contradicted and impermissibly modified the terms of a Final Custody Judgment (“FCJ”), then the standard of review is dual.  The appeals court’s assessment of whether a trial court has modified a FCJ is a de novo review; while the trial court’s findings of fact and rulings based on the evidentiary record are reviewed under the abuse of discretion standard. Simply because parties have the resources to frequently appeal adjustments of time-sharing, it does not follow that every such adjustment warrants the comprehensive appellate review accorded a substantive post-judgment modification.  Parties should rely on the parenting coordination provisions of an FCJ as they were intended to offer a path of confidentiality and non-judicial resolution for the benefit of the children and the parties.  In this case, the trial court’s adjustments to certain notice provisions of the FCJ were not modifications.  The procedural aspects and logistics of parenting, access and other related matters, and the consequences of non-compliance, are ordinarily within the discretion of the trial judge. The appeals court affirmed the trial court’s order on the time-sharing provisions. 


Case:              Marchek v. Marchek
Court:             Second District Court of Appeal.
Trial Judge:   Elisabeth Adams.
Attorneys:      Matthew P. Irwin, Sam R. Assini.
Issues:            Equitable Distribution. 

Holding:         A trial court’s valuation of the business income in a property distribution, and the determination of an equalizer payment, must be based on competent, substantial evidence. For the purpose of determining the amount of income that is attributable to a spouse in computing alimony, Florida Statutes (2010), defines "income" as any payment to an individual, no matter what the source, and includes wages, salary, commissions and bonuses, compensation as an independent contractor, various benefits, and dividends and interest. In calculating a party's monthly income, business expenses must be deducted from the party's gross income. A trial court can consider any source of income but it cannot hypothesize amounts or use gross income amounts. In this case, the trial court erred in determining equitable distribution and an equity payment based on income figures that were not otherwise supported by the record. The appeals court we reversed that portion of the final judgment of dissolution. 


Case:              R.W. v. D.C.F.
Court:             First District Court of Appeal.
Trial Judge:   Karen A. Gievers.
Attorneys:      M. Linville Atkins, Dwight O. Slater, Kelley Schaeffer.
Issues:            Termination. 

Holding:       A surrender of parental rights may only be set aside if the court finds that the surrender was obtained by fraud or duress.  To invoke an appeal court’s jurisdiction to review an order of termination of parental rights, a notice of appeal must be filed within 30 days of rendition of the order. In this case, the trial court erred in denying the petitioner Mother’s post-judgment motion to set aside the surrender of her parental rights.  An order denying a motion for relief from judgment is an appealable non-final order. In this case the trial court did not err in denying the motion to appeal the final order of parental termination as the petition was not filed or drafted properly and in a timely fashion.  Absent an appeal of the order on the motion for relief from judgment, an otherwise unpreserved issue raised in a post-judgment motion is not to be considered in the appeal of the underlying judgment. The appeals court dismissed the appeal as it sought to review the trial court’s ruling on the mother’s post-judgment motion to set aside the surrender of her parental rights, which was not prepared and filed properly. The appeals court affirmed the final judgment terminating the mother’s parental rights to the child. 


 

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 22, 2015

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

Case:              Kobe v. Kobe
Court:             First District Court of Appeal.
Trial Judge:   John L. Miller.
Attorneys:      Ross A. Keene, E. Jane Brehany.
Issues:            Alimony. 

Holding:  When a court awards more alimony than requested without sufficient findings in the final judgment to support the increased award, the award must be reversed and remanded for further proceedings. In this case, the trial court erred when it awarded alimony, both before and after the sale of the marital home, which, when coupled with the amount of income imputed to the Former Wife, exceeded her stated need.  Further the trial court made no findings to support this award. In addition, while there was ample evidence that the parties enjoyed a high standard of living during the marriage, there was little specific evidence in the record concerning the Former Wife’s expected expenses after the marital home sold, and the trial court did not make specific findings concerning this matter. The matter was reversed and remanded for further proceedings concerning the amount of alimony needed by the Former Wife.


Case:              Hair v. Hair
Court:             Fourth District Court of Appeal.
Trial Judge:   Timothy P. McCarthy.
Attorneys:      Michael L. Cohen.
Issues:            Domestic Violence Injunction. 

Holding: Florida Statutes provide that a family or household member may file a petition for protection against domestic violence if that person is either the victim of domestic violence as defined under statute or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence. Domestic violence is any assault, including but not limited to, aggravated assault, battery, sexual assault, stalking, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member. To determine whether the victim’s fear of imminent domestic violence is reasonable, the trial court must consider the current allegations, the parties’ behaviour within the relationship, and the history of the relationship as a whole. In this case, the trial court erred in granting the injunction when the petitioner failed to present sufficient evidence that she was a victim of domestic violence or was in imminent danger of becoming a victim of domestic violence. The appeals court reversed the final judgment of injunction for protection against domestic violence.


Case:              Polcz v. Polcz
Court:             Fourth District Court of Appeal.
Trial Judge:   Timothy P. McCarthy.
Attorneys:      E. Ross Zimmerman, Doreen Inkeles.
Issues:            Alimony. 

Holding:  The mathematical findings behind a modification order must support the court’s final decision as to a reduction in arrearages. In this case, the trial court erred insofar as within the modification order, the amount of alimony arrearages purportedly owed was inconsistent with the findings regarding the amount of alimony paid. Although the trial court may have had some other compelling reason for eliminating arrearages owed by the Former Husband, it was not apparent in the modification order. The appeals court reversed and remanded for clarification of arrearages.


Case:              K.K. v. D.C.F.
Court:             Second District Court of Appeal.
Trial Judge:   Emily A. Peacock.
Attorneys:     Jennifer S. Paullin, Pamela Jo Bondi, Meredith Hall.
Issues:            Dependency, Certiorari. 

Holding:  To be entitled to certiorari relief, the petitioner must show that the trial court's order departs from the essential requirements of the law and results in material harm that cannot be corrected on post-judgment appeal. The question of whether the order results in material harm that cannot be corrected on post-judgment appeal constitutes a jurisdictional test, while the question of whether the order departs from the essential requirements of the law constitutes a decision on the merits. It is improper, and a denial of due process, for a court to order relief not requested in any of the pleadings. As a general rule, case plan tasks and related activities imposed on parents and children must be meaningful and designed to address the facts and circumstances upon which the court based its determination regarding dependency, or, in some circumstances, a no-contact order. Further, those tasks must be the least intrusive possible into the life of the parent and child, must focus on clearly defined objectives, and must provide the most efficient path to quick reunification or permanent placement given the circumstances of the case.

In this case, the trial court erred when it ordered the dependent children undergo therapeutic assessments in connection with the denial of the Mother's motion to amend a safety plan which prohibited her current husband, from having any contact with the children - his stepchildren. (In previous proceedings, the current husband, stepfather, was not a party per the statute. The trial court therefore entered a no-contact order as between him and the children.) Any error in requiring the children to undergo therapeutic assessments results in material harm that cannot be corrected on pos-tjudgment appeal. Once the children undergo the assessments, the damage is done. The trial court's ruling departs from the essential requirements of the law in two ways. First, the ruling denied the Mother due process by ordering relief not requested in any of the pleadings. Neither the Mother nor the Department nor the Guardian ad Litem requested further assessments of the children in connection with this motion. The entry of an order imposing conditions about which the parents had no notice or opportunity to be heard violates due process. Requiring the children undergo therapeutic assessments which are unrelated to the reasons that resulted in the initial dependency (or, here, the no-contact order) is neither meaningfully designed to address the circumstances that brought them into care nor the least intrusive means possible to protect them. The appeals court quashed that portion of the dependency 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.