Weekly Law Update on Florida Divorce & Child Custody Cases

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

Florida Divorce & Family Law Update for Week Ending July 19, 2015

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


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

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

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


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

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

Dissipated Proceeds

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

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


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

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

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


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

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


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

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

Florida Divorce & Family Law Update for 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 February 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:              McIndoo v. Atkinson
Court:             Fourth District Court of Appeal.
Trial Judge:   Laura M. Watson.
Attorneys:      Pro Se.
Issues:            Custody, Foreign Judgments. 

Holding:  The general purposes of the UCCJEA are to avoid jurisdictional competition and conflict with other courts in child custody matters; promote cooperation with other courts; insure that a custody decree is rendered in the state which enjoys the superior position to decide what is in the best interest of the child; deter controversies and avoid relitigation of custody issues; facilitate enforcement of custody decrees; and promote uniformity of the laws governing custody issues.

If the factual circumstances of a case meet the jurisdictional standards of the statute, and the foreign order has not been modified, then a trial court should exercise jurisdiction to grant a party’s petition of domesticate the foreign order. Specifically, in a child custody proceeding under commenced under Florida statute, if the Home State Rule applies, and if there are no proceedings in another state, or if there are proceedings in the another state which are not identical to those in Florida, then a Florida trial court may exercise jurisdiction.

A child custody proceeding involves legal custody, physical custody, residential care, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.

Under Florida statute, “Home State” means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding. In the case of a child younger than 6 months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period. The “Home State” rule applies to child custody proceedings.

A Florida court may not exercise its jurisdiction for custody if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child had been commenced in a court of another state having jurisdiction substantially in conformity with this part, unless the proceeding has been terminated or is stayed by the court of the other state.

In this case, the trial court erred when it found that it did not have subject-matter jurisdiction because: (1) the Petitioner Mother did not file a motion regarding a “child custody proceeding” as defined by Florida statute; (2) Florida was not the “home state” of the child; and (3) proceedings “in substantial conformity with the UCCJEA” had been commenced in another jurisdiction.

Child Custody Proceeding

The trial court erred when it declined to exercise jurisdiction to act upon the petition to domesticate a foreign custody order in the absence of any statutory, or other, authority requiring that a proceeding be a “child custody proceeding” under the definition in the UCCJEA before it could act. To the contrary, both the statute governing domestication of a foreign judgment and registration of a judgment are contained within Florida’s UCCJEA statutes.  Therefore, the fact that the mother’s filings were not regarding a child custody proceeding is irrelevant to the question of jurisdiction to domesticate a foreign custody order.


Home State Rule

The trial court also erred in its interpretation of the proceedings and its application of the Home State Rule by denying the Petitioner Mother’s application to domesticate the foreign order and seeking to rely on the Respondent Father’s opposition to the petition, which relied in large part on this section of the UCCJEA. The child custody proceeding was properly within the domain of Florida statute because, as was in fact found by the trial court, the petitions filed by the mother did not constitute “child custody proceedings.” This means that the “home state” rule did not apply to the mother’s petitions.

Simultaneous Proceedings

The trial court further erred as it failed to specifically cite to this statute in its order, since it stated that the proceedings in the other state (ie: Arizona) were in substantial conformity with the UCCJEA. However, the proceedings before the trial court could have been entertained as they were for domestication of the foreign order.  When the trial court concluded it did not have subject-matter jurisdiction based, at least in part, upon the simultaneous proceedings statute, it misapplied the statute.

The appeals court reversed the trial court’s order and remanded for the trial court to enter an order granting the Petitioner Mother’s petition to domesticate the foreign order and confirming its registration.


Case:              Butler v. Prine
Court:             Second District Court of Appeal.
Trial Judge:   Linda R. Allan.
Attorneys:      Tori A. Butler, Kathryn Marie Welsh.
Issues:            Attorney’s Fees. 

Holding:  An award of attorney’s fees post-dissolution is within the jurisdiction of the trial court but must be based on substantial and cogent evidence for the court. Among such evidence is that regarding the reasonableness and necessity of all the legal work underlying the attorney fees forming the basis of such an award. Further, the trial court must adequately consider this particular factor. In this case, the trial court erred insofar as, while the evidence before it justified a fee award of some amount, the trial court did not establish that it had adequately considered the reasonableness and necessity of all of the legal work underlying the attorney fees. The appeals court reversed the award of attorney's fees and remanded for the trial court’s reconsideration with authorization to receive additional evidence. 


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

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

Florida Divorce & Family Law Update for Week Ending February 15, 2015

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


Case:              Atkinson v. Atkinson
Court:             Second District Court of Appeal.
Trial Judge:   Ashley B. Moody.
Attorneys:      Elizabeth S. Wheeler, Christian D. Denmon, Nicole Denmon, Andrew Plagge.
Issues:            Alimony.

Holding:        The court may reduce or terminate an award of alimony upon making specific written findings that, since the granting of a divorce and the award of alimony, a supportive relationship has existed between the payee and a person with whom the payee resides. Cohabitation often constitutes a change in circumstance. However, the definition of cohabitation and what facts, beyond a common residence, establish a supportive relationship rather than that of roommates or tenant/lodger. A trial court's decision concerning whether or not cohabitation has been established involves a mixed question of law and fact requiring a mixed standard of review, limited to determining whether they are supported by competent, substantial evidence. However, the appeals court reviewed the trial court's construction of the term "cohabitation" and its legal conclusions, de novo.  Matrimonial settlement agreements providing for the termination of alimony upon cohabitation are intended to protect the payor spouse from a continuing obligation to pay alimony when the payee spouse is residing with another person under circumstances similar or tantamount to marriage. Therefore, a finding of cohabitation requires more than the mere presence of another person under the payee spouse's roof.

In this case, the trial court erred in ruling that a male living in the Former Wife's residence amounted to "cohabitation with a male" within the meaning of the parties’ MSA, such that the Former Wife’s alimony award would terminate. On the evidence, the Former Wife and the man maintained a relationship more akin to his being a lodger or tenant. The appeals court reversed and remanded for, among other things, an amended order denying the Former Husband's petition to terminate his obligations to pay alimony and maintain a life insurance policy as security for its payment. 


Case:              Chamberlain v. Eisinger
Court:             Fourth District Court of Appeal.
Trial Judge:   Paul B. Kanarek.
Attorneys:      A. Julia Graves
Issues:            Child Support, Imputed Income, Time-Sharing, Reunification. 

Holding:        Modification of Custody & Timesharing
When modifying a parenting and timesharing plan, the primary considerations are the best interests of the children. To modify an order of custody, the movant must show that: the circumstances have substantially and materially changed since the original custody determination; this change could not be contemplated by the parties at the time of the original judgment; and it is in the child’s best interests to change custody. While this onus on the party seeking to modify is intended to preclude repeated custody disputes, it should not preclude legitimate review of the petition. Courts must evaluate all relevant statutory factors affecting the welfare and interests of the child. A trial court’s order changing custody enjoys a presumption of correctness on appellate review and will only be disturbed for abuse of discretion.

In this case, the trial court did not err in concluding a substantial change in circumstances existed and that such change warranted the modification of timesharing because it trial court considered evidence relevant to the best interests of the children.

Reunification

A custodial parent has an affirmative obligation to encourage and nurture the relationship between the child and the noncustodial parent. This entails encouraging the child to interact with the noncustodial parent, taking good faith measures to ensure that the child visit and otherwise have frequent and continuing contact with the noncustodial parent and refraining from doing anything likely to undermine the relationship naturally fostered by such interaction. In this case, the trial court did not err in holding that the Former Husband was not thwarting the Former Wife’s efforts at reunification with the children insofar as he provided evidence to support his position while the Former Wife provided none. 

Child Support

The standard of review for a child support award is abuse of discretion. In this case, the trial court erred in factoring in the Former Husband’s alimony payments into child support for months where he failed to pay alimony.  The appeals court reversed and remanded for a determination of the amount of alimony paid to determine an offset to the retroactive child support obligation.

Imputing Income

When imputing income, the trial court must set forth factual findings, based on cogent evidence, concerning the probable and potential earnings level, source of imputed and actual income, and adjustments to income. In this case, the trial court erred in imputing income to the Former Husband in the absence of evidence. 


Case:              Clark v. Clark
Court:             First District Court of Appeal.
Trial Judge:   John L. Miller.
Attorneys:      E. Jane Brehany.
Issues:            Alimony, Property Distribution. 

Holding:        Under Florida statutes, the date the petition for dissolution of marriage was filed is an appropriate date for classifying the parties’ assets as marital, and the date for determining value of assets classified as marital is the date, or dates, as the court deems is just and fair in the circumstances. In this case, the trial court did not err in using the petition filing date as the date for valuing a marital asset, an investment account, which was lower in value at the end of the marriage than at the beginning. The appeals court reversed that portion of the final judgment equitably distributing the parties’ marital assets and liabilities, and remanded for correct determination of the value of the asset. 


Case:              Jonas v. Jonas
Court:             Fourth District Court of Appeal.
Trial Judge:   Lucy Chernow Brown.
Attorneys:      Roderick V. Hannah, Eric C. Christu.
Issues:            Jurisdiction, Foreign Judgments. 

Holding:        Comity requires courts state to refrain from exercising jurisdiction in certain cases. When a court is confronted with an action that would involve it in a serious interference with or usurpation of this continuing power, considerations of comity and orderly administration of justice demand that the non-rendering court should decline jurisdiction and remand the parties for their relief to the rendering court, so long as it is apparent that a remedy is available there. As for the principle of priority, or where a foreign court is first to assert jurisdiction, the usual remedy in such cases is to stay the subsequent proceeding in favor of the prior proceeding. The interests of judicial economy and finality may require that subsequent actions come to an end. The appeals court affirmed and required a former spouse to return to the original jurisdiction to conclude proceedings. 


Case:              Kelly v. Snietka
Court:             Fourth District Court of Appeal.
Trial Judge:   Thomas Barkdull, III.
Attorneys:      Craig A. Boudreau, Scott D. Glassman, Sue-Ellen Kenny.
Issues:            Paternity, Child Support. 

Holding:        Under Florida Rules of Appellate Procedure, the court may review any ruling or matter occurring before filing of a notice of appeal. A notice of appeal of a final judgment does not include orders entered after the final judgment unless they are specifically appealed. In this case, the trial court did not err in taking jurisdiction to consider an order vacating a prior final judgment and a motion to disqualify a trial judge, as both were issued before the final judgment, which is under appeal. 


Case:              Medina v. Haddad
Court:             Third District Court of Appeal.
Trial Judge:   Marcia B. Caballero.
Attorneys:      Brandon A. Rotbart.
Issues:            Procedure. 

Holding:        In deciding whether a protective order is appropriate in a particular case, the court must balance the competing interest that would be served by granting discovery or denying it.  Overall, means less intrusive than the release of confidential information should be used where available. In this case, the trial court erred by ordering the Former Wife to disclose settlement agreements between the law firm to which she was contracted and third parties. Such was the property of a non-party law firm or its non-party clients. Moreover, to do so might result in a breach of confidence. The appeals court quashed the order. 


Case:              Haeberli v. Haeberli
Court:             Fifth District Court of Appeal.
Trial Judge:   Bob Leblanc.
Attorneys:     
Issues:          Contempt.

Holding:          While a person facing civil contempt sanctions is not entitled to the full panoply of due process rights afforded to a person facing indirect criminal contempt charges, he or she is nonetheless entitled to a proceeding that meets the fundamental fairness requirements of the due process clause of the Fourteenth Amendment to the United States Constitution. Such fundamental fairness includes providing the alleged contemnor with adequate notice and an opportunity to be heard. The failure to provide the Former Husband with any notice that motions for contempt would be considered justifies a reversal and a new hearing. An order finding the alleged contemnor to be in contempt shall contain a finding that a prior order of support was entered, the alleged contemnor has failed to pay part or all of the support ordered, the alleged contemnor had the present ability to pay support, and the alleged contemnor wilfully failed to comply with the prior court order. The order shall contain a recital of the facts on which these findings are based. In this case, the trial court erred when it denied the Former Husband due process by ruling on motions that had not been noticed for hearing. The appeals court reversed. 


Case:              Baker v. Baker
Court:             Fifth District Court of Appeal.
Trial Judge:   Bob Leblanc.
Attorneys:     
Issues:           Custody.

Holding:          To succeed on a petition for a change of custody, whether permanent or temporary, the petitioner must plead and prove, AND the trial court must find on the evidence, the following:

a)      that a substantial change of circumstances occurred since entry of the previous custody order, which was not reasonably contemplated when the previous order was entered; and

b)      the requested change of custody is in the best interests of the child.

If the first requirement is not met, the trial court need not address the second. A modification petition must be properly pled. Failure to plead properly is fatal, such that a modification order can be reversed on that basis by an appeals court. In this case, the trial court erred in temporarily changing custody because Former Wife failed to plead and prove a substantial change in circumstances since the previous custody determination and by modifying custody at a hearing that that was not properly noticed as being for a modification proceeding. 


Case:              Maguire v. Wright
Court:             Fifth District Court of Appeal.
Trial Judge:   Alan A. Dickey.
Attorneys:      Sarah H. Bolinder.
Issues:            Custody. 

Holding:      Florida statutes set out the factors a trial court must consider in creating a parenting plan that governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child. While separate findings as to each factor are not required to sustain a temporary award, the record must reflect that the custody determination was made in the best interest of the child. However, the appeals court has also specifically recognized a “true emergency” exception to the general rule, concluding that the normal burden on the party seeking custody to show that the custody transfer is in the child’s best interest need not be met when there is an improper removal of a minor child from the state. If a court grants permission for a parent to remove a child from the jurisdiction for a date specific, the child must be returned by that date, failing which the removal becomes improper. Based on the context in which the removal is granted, it can be construed to be an interlocutory order determining the right to custody.  As such, the appeals court has jurisdiction under Florida Rules of Appellate Procedure. A further hearing may be necessary to resolve the issues of temporary shared parental responsibility and temporary timesharing in accordance with the relevant statutory criteria holding that the best interests of the child are paramount. In this case, the trial court did not err in granting temporary custody of the minor child to the Former Wife. The appeals court affirmed and remanded for an evidentiary hearing on temporary shared parental responsibility and temporary time-sharing. 


Case:              Juchnowicz v. Juchnowicz
Court:             Second District Court of Appeal.
Trial Judge:   Rochelle T. Curley.
Attorneys:      W. Russell Snyder, Susan J. Silverman, Cynthia L. Greene, Deborah J. Blue.
Issues:            Alimony.

Holding:       Permanent alimony is to allow the requesting spouse to maintain the standard of living established by the parties during the marriage. In viewing the totality of the circumstances, one spouse should not be  "shortchanged."  Each party's standard of living must come as close as possible to the prior lifestyle, given the available financial resources. An award of permanent alimony is reviewed pursuant to the abuse of discretion standard. An award of permanent periodic alimony typically terminates upon the death of the obligor. However, Florida statutes allows a trial court to order an alimony obligor to purchase or maintain a life insurance policy to the extent necessary to protect an award of alimony.

In this case, the trial court erred in making the alimony award without adequate consideration of the substantial income disparity between the parties. The award was not commensurate with the parties' marital standard of living and created a gross disparity. Nor was the award secured. The appeals court reversed the award of permanent periodic alimony and remanded for proceedings and to mandate the Husband to secure the alimony award with a life insurance policy.


Case:              Winton v. Saffer
Court:             Third District Court of Appeal.
Trial Judge:   George A. Sarduy.
Attorneys:      Chantale L. Suttle, Holly A. Aliprandi, John B. Agnetti, Armand Murach
Issues:            Arrearages.

Holding:        When considering a petition regarding arrearages, the trial court must make its findings based on substantial, competent evidence showing that the payor spouse failed to make support payments as required despite an apparent ability to do so. The record must discloses the calculations and evidence establishing the commencement of the arrearages, the total unpaid balance, and the computation of the purge amount. As to the purge amount, the court must make a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions.  The amount itself must be supported by substantial, competent evidence. Relief exceeding the amount which is pled is impermissible.

In this case, the trial court erred when it awarded an amount in excess of the amount calculable on the record and which exceeded the amount recoverable, based on the Former Wife’s pleadings. While there was substantial, competent evidence to support the court’s findings that the Former Husband failed to make support payments as required, despite an apparent ability to do so, the record did not disclose the calculations and evidence establishing the commencement of the arrearages, the total unpaid balance, and the computation of the purge amount. The appeals court reversed in part and remanded for further proceedings.


Case:              P.C. v. D.C.F. and Guardian ad litem
Court:             Fourth District Court of Appeal.
Trial Judge:   Kenneth L. Gillespie.
Attorneys:      Denise E. Kistner, Pamela Jo Bondi, Carolyn Schwarz.
Issues:            Parental Rights.

Holding:        When considering the termination of parental rights, the court must do so on the basis of:

a)      competent, substantial evidence of the grounds alleged by the Department of Children and Families under Florida statute;

b)      upon making statutorily-required findings of fact and conclusions of law; and

c)      ensuring that the termination of parental rights is not the least restrictive means to protect the child from harm.

The termination order should address which grounds form the basis for the termination.

In this case, the trial court erred in making the termination order which did not specify the grounds for the basis on termination in that competent, substantial evidence did not support one of the grounds alleged by the D.C.F. under Florida statute for termination. However, there was such evidence under the remaining allegations. The appeals court affirmed the termination of parental rights, but remanded with instructions to the court to amend the final judgment to indicate in its conclusions of law that the termination was based on the grounds alleged and substantiated.


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 Three Weeks Ending December 26, 2014

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

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

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


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

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


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

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

Non-Marital Property Determinations:
 

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

Imputation of Income: 

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


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

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


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

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

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

Alimony

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

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

Attorney’s Fees

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

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


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

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

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

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

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


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

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

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


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

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


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

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


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

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


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

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

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

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

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

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


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

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