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 and Family Law Update for Week Ending April 24, 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:              Lathrop v. Lathrop n/k/a Posey
Court:            Second District Court of Appeal.
Trial Judge:  John A. Schaefer.
Attorneys:     Dorothy F. Easley, Allison M. Perry.
Issues:            Alimony.
Holding:        In the absence of special circumstances, a Former Spouse cannot be required to maintain life insurance for the purpose of securing an alimony obligation. A final judgment of dissolution must set forth sufficient findings of special circumstances to support a requirement for life insurance. In this case, the trial court erred in requiring the Former Husband to maintain a life insurance policy to secure the payment of permanent alimony in the absence of any special circumstances to justify the life insurance requirement. The appeals court reversed. 


Case:              Thomas-Nance v. Nance
Court:            Second District Court of Appeal.
Trial Judge:   Martha J. Cook.
Attorneys:      Deborah Marks.
Issues:            Alimony.
Holding:         To deprive a party of the majority of the assets of the marriage for the rest of his or her life is an abuse of discretion. The sentimental interest of one party in marital property cannot take priority over financial fairness to the other. In this case, the trial court erred when it ordered that the Former Husband to pay the Former Wife her interest in the marital home at a monthly rate which would require her to wait more than 20 years to receive her share of the marital assets. The payment plan was patently unreasonable. The appeals court revered and remanded. 


Case:              B.J. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge:   Maria Sampedro-Iglesia.
Attorneys:      Eugene F. Zenobi, Kevin Coyle Colbert, Karla Perkins, Laura J. Lee (Sandford).
Issues:            Dependency.
Holding:    An appellate court reviews an adjudication of dependency for an abuse of discretion, and will uphold the determination if the trial court applied the correct law and its ruling is supported by competent, substantial evidence. The parent's harmful behavior must be a present threat to the child, based on competent, substantial evidence that the child was either abandoned, abused, or neglected, or that the risk of abandonment, abuse or neglect is imminent.  In this case, the trial court erred in ordering dependency in the absence of competent substantial evidence of imminent prospective abuse, abandonment, or neglect. The appeals court reversed and remanded.


Case:              Vaught v. Vaught
Court:            Fourth District Court of Appeal.
Trial Judge:   Lisa S. Small.
Attorneys:     Andrew David Stine, Manuel Farach.
Issues:           Domestic Violence Injunction.

Holding:         A party defending against a claim is entitled to due process, including the right to proper and adequate notice of the allegations which form the basis for the relief sought. Under Florida Statutes (2014) a Respondent to a petition for a domestic violence injunction shall be personally served with a copy of the petition. In this case, the trial court erred in ordering a domestic violence injunction when certain new allegations were raised for the first time in a supplemental affidavit and not at the hearing. The trial court further erred in denying the Respondent’s motion for continuance where the notice of the final hearing on the new and supplemental allegations was provided only a few business days before the hearing. The appeals court reversed the final judgment of injunction.


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

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

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

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


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

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

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


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

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

Dissipated Proceeds

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

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


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

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

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


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

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


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

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

Florida Divorce & Family Law Update for Week Ending July 12, 2015

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


Case:             Thompson v. Malicki
Court:            Second District Court of Appeal.
Trial Judge:  Lee Ann Schreiber.
Attorneys:     Christopher R. Bruce.
Issues:           Relocation, Modification, Child Support

Holding:         A trial court's imputation of income must be supported by competent, substantial evidence. When calculating child support, Florida Statutes (2011) provide that the trial court shall impute income to a voluntarily unemployed or underemployed parent absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control. Where income is to be imputed, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available.

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

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


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

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

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

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

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

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

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

1.     The Right to Counsel

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

2.     The Right to Effective Assistance of Counsel

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

3.     The Standard for Ineffective Assistance

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

4.  Temporary Procedure for Ineffective Assistance Claims in TPR Cases

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

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

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

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

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

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

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

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

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

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

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


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

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

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


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

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

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


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

Holding:         Permanent Periodic Alimony

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

Imputation

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

Retroactivity

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

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

Life Insurance

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

Lump Sum Alimony

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

 Attributing Dissipated Assets as Part of Equitable Distribution

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

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


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

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

 

Florida Divorce & Family Law Update for 2 Weeks Ending July 5, 2015

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


Case:             Smith v. Smith
Court:            Second District Court of Appeal.
Trial Judge:  Gilbert A. Smith, Jr., Diana L. Moreland.
Attorneys:     Edward B. Sobel, Angela D. Flaherty.
Issues:           Equitable Distribution, Attorney’s Fees. 
Holding:         Equitable Distribution

An appeals court reviews de novo a trial court's determination of whether an asset is marital or non-marital. Where parties did not enter into marital settlement agreement, the applicable date for determining whether assets and liabilities are classified as marital or non-marital is the date of the filing of the petition for dissolution of marriage. Assets and liabilities not in existence on that date should not be classified as marital.

In this case the trial court erred when it included as marital assets in the equitable distribution scheme both a vehicle, which was owned by the Former Husband at the time the petition was filed but sold during the pendency of the divorce, and a second vehicle, which was purchased by him after the date of filing but prior to the final judgment. The appeals court concluded that it was error to include the second vehicle in the equitable distribution scheme.  The appeals court reverse and directed the trial court to strike the second vehicle from the equitable distribution scheme and reduce the equalizing payment owed to the Former Wife accordingly. 

Attorney’s Fees

An appeals court does not have jurisdiction to review attorney’s fees if the trial court’s ruling only addresses entitlement but does not set an amount. In this case, the trial court's ruling on attorney's fees and costs only addressed the relative position of the parties and entitlement but failed to set an amount. As a result, the appeals court lacked jurisdiction to review.


Case:             M.M. v. D.C.F.S
Court:            Third District Court of Appeal.
Trial Judge:   Rosa C. Figarola.
Attorneys:     Eugene F. Zenobi, Kevin Coyle Colbert, Cathi Gordon Graham, Angela D. Flaherty, Karla Perkins.
Issues:           Procedure, Dependency. 
Holding:         Procedure

Any party can request termination of agency supervision or the jurisdiction of the court by a written motion or in a written report to the court. In this case, the trial court did not err in granting the order for cessation of supervision of the dependent children by the DCF despite being ordered without a motion. Here, the Father argued the order denied him due process because departmental supervision was terminated without a motion. In fact, the DCF requested termination of supervision in a Judicial Review and Social Study Report filed with the trial court, the receipt of which was acknowledge by the Father’s attorney prior to the Judicial Review Hearing. No challenge of the request for termination of supervision was raised. The appeals court denied the petition insofar as it was determined there was no departure from the essential requirements of law and due process as the Father received notice via the filed report.

Dependency/Visitation

Florida Statutes affords a parent the unqualified ability to return to the dependency court to seek modification or elimination of any court ordered restrictions on his or her visitation rights.  If a parent who has not had his or her parental rights terminated makes a motion for reunification or increased contact with the child, the court shall hold a hearing. Notwithstanding that the wishes of the dependent children, who may be at or near their teenage years, may, practically, affect a parent’s future contacts and relationship with them, the dependency court has a non-delegable duty to consider any motion for modification or for increased contact filed by a parent in the future.  In this case, the trial court erred when it departed from the essential requirements of law by restricting decisions concerning the Father’s future contact with his children solely to its discretion. The appeals court reversed that portion of the order which limited the Father’s ability to seek contact with his children in the future.


Case:             Elias v. Elias
Court:            Fourth District Court of Appeal.
Trial Judge:  David E. French.
Attorneys:     Howard M. Rudolph, Caryn A. Stevens, Joel M. Weissman.
Issues:            Child Support
Holding:          

Florida Statutes present Guidelines as the starting point for determining child support orders (both temporary and final). Awards of child support shall be based on the application of these Guidelines. After calculating a Guideline amount based on each parent’s net monthly income and the children’s need for support, the trial court may deviate from the Guideline amount based on a variety of factors, however, child support pursuant to the Guidelines must be determined before the trial court deviates.

In this case, the trial court erred in failing to apply the Guidelines despite the Former Husband’s objections. Specifically, it erred in determining that neither party needed to pay child support; in concluding that the Former Wife’s annual income of over $1 million allowed her to provide for most of the children’s needs by direct payments to vendors and providers, as she volunteered to do; and by treating expenditures for the three minor children made by the Former Husband (who had fifty-percent time-sharing) as largely incidental. The appeals court reversed and remanded with directions to the trial court to follow the statutory procedure


Case:             Boyd v. Boyd
Court:            Fourth District Court of Appeal.
Trial Judge:  Renee Goldenberg.
Attorneys:     Robert D. Burgs, Catherine L. Roselli.
Issues:            Child Support. 
Holding:        

A trial court’s decision to accept or reject a magistrate’s conclusions is generally reviewed for an abuse of discretion. A magistrate’s findings are subject to being set aside by the trial court when they are clearly erroneous or the magistrate misconceived the legal effect of the evidence. In this case, the trial court erred in approving the general magistrate’s report and recommendation where the evidence showed the magistrate was expected, but failed, to set an arrearage amount (and there was sufficient evidence available to do so).  The appeals court reversed and remanded for the trial court to resolve the issue of arrearages.


Case:             Suleiman v. Yunis
Court:            Fifth District Court of Appeal.
Trial Judge:  Alan S. Apte.
Attorneys:     Adam H. Sudbury.
Issues:           Time-Sharing, Procedure.
Holding:

Pursuant to the Florida Rules of Appellate Procedure, the appeals court has jurisdiction to address matters of denials of due process. Failure to give notice of a hearing to the opposing party absent a true emergency deprives the opposing party of its right to procedural due process. Courts reverse those temporary custody orders which are entered without notice; or with insufficient notice; or with insufficient opportunity to be heard. In order to prevail on a request for a temporary modification of custody, the moving party must meet the burden of proving that (1) a substantial change in the condition of one or both of the parties has occurred, and (2) the best interests of the child will be promoted by the change although the entry of an emergency ex parte order temporarily changing custody might be warranted under certain circumstances, such as where a child is threatened with physical harm or is about to be improperly removed from the state.

In this case, the trial court erred insofar as it denied, at the hearing on Former Wife’s motion to vacate, her requested relief notwithstanding that she presented sufficient and cogent evidence on point; the Former Husband failed to provide sufficient evidence in support of the ex parte order; a substantial change of circumstances had occurred; and that the best interests of the children would be promoted by modifying the timesharing schedule. The lower court abused its discretion in its failure to properly resolve the issue given the lack of evidence in support of the order it issued. The appeals court reversed and vacated the orders.


Case:             Richeson v. Richeson
Court:            Fifth District Court of Appeal.
Trial Judge:   Sally D.M. Kest.
Attorneys:     Jeffrey A. Conner, Frank J. Bankowitz.
Issues:            Equitable Distribution. 
Holding:         Partitioning

A trial court has no authority to partition jointly-held property in the absence of the parties' agreement or a specific pleading requesting partition. In this case, the trial court erred in ordering the sale of certain real property in the absence of any pleading for partition of the property. The appeals court reversed the portion of the trial court's order directing partition and directed the reinstatement of the equitable distribution scheme set forth in the original final judgment.

Credit for Moneys Paid During Pendency

Claims for credit on moneys paid on assets during pendency must be supported by competent and sufficient evidence. In this case, the trial court did not err when it denied to award the Former Husband credit for moneys he allegedly paid to maintain joint investments during pendency. At trial, the Former Husband's only evidence with regard to his claim was a summary statement listing numerous deposits he made to an account maintained for management of the parties' investment properties. However, he presented no evidence as to the source of the funds, including whether any of the funds derived from rental income on those properties. The trial court recognized this deficiency and directed him to provide supplemental documentation, but he failed to do so. The appeals court affirmed this portion of the order.


Case:             Sowell v. McConnell
Court:            Fifth District Court of Appeal.
Trial Judge:   S. Sue Robbins.
Attorneys:     Christina D'Amato-Miller, Mark D. Shelnutt, Rebecca A. Guthrie.
Issues:            Child Support.   
Holding:        

Florida Statutes (2013) require parties to pay the uncovered medical expenses of a child according to their percentage share of child support. In this case, the trial court erred by failing to require the Former Husband to reimburse the Former Wife for a portion of the minor children's medical expenses incurred during the parties' separation. Although the Former Husband asserts that the Former Wife did not present any evidence regarding the medical bills (including the dates of medical service, nature, necessity, or reasonableness of those bills) the bills were admitted into evidence during trial and the Former Husband voiced no objections when the Former Wife testified as to amounts. As such, the Former Wife was entitled to receive partial reimbursement for the medical bills she introduced into evidence. The appeals court reversed and remanded for the trial court to calculate and award her  portion of the medical bills she paid.


Case:             Stantchev v. Stantcheva
Court:            Fifth District Court of Appeal.
Trial Judge:   Jonathan D. Ohlman.
Attorneys:     Jonathan P. Culver, Robert H. Mclean.
Issues:            Equitable Distribution, Attorney’s Fees. 
Holding:         Non-Marital Assets

Non-marital assets are excluded from equitable distribution. In this case, the trial court erred in making a distribution scheme which did included a particular account as a marital asset when it should have been excluded as it belonged to the Former Husband before the parties were married. The appeals court remanded and directed the trial court to revise the distribution scheme accordingly.

Valuation of Assets

The date for determining value of marital assets is the date or dates as the judge determines is just and equitable under the circumstances. In this case, the trial court erred in valuing an amount of money the Former Husband transferred to a Hungarian bank weeks prior to the Former Wife initiating divorce proceedings as at the date of the transfer rather than the date it was converted back (at a lower rate of exchange resulting in a substantial loss in value). The trial court should have ordered both parties bear an equal share of the resultant loss in value of the account rather than have it lie with the Former Husband (particularly as the Former Husband did not know she intended to commence proceedings). Note that the appeals court found that the trial court was properly within its discretion in assessing the value of such moneys but the error lay in the date the trial court applied to value the asset. The appeals court directed that the loss resulting from the currency exchange be considered on remand.

Attorney’s Fees

In considering equitable distribution, the trial court may consider any amounts paid by a Former Spouse to his or her attorney which are sourced from marital assets and taken and paid in advance of the commencement of proceedings.  In this case, the trial court erred in ordering the Former Husband to pay one-half of the Former Wife’s attorney’s fees when she used marital funds for the down payment for her attorney’s fees while the parties were still living together. After they separated, the Former Husband commenced paying temporary alimony which was specifically designed to include Former Wife’s fees. Given the subsequent equitable distribution of assets, each party had the ability to pay his or her own fees and the trial court was directed to reconsider the matter on remand. 


Case:             Banks v. Banks
Court:            Second District Court of Appeal.
Trial Judge:   Tracy Sheehan.
Attorneys:      E. Jane Brehany, Allison M. Perry.
Issues:            Alimony, Equitable Distribution. 
Holding:         Alimony

An appellant must provide, for the record, a statement of the evidence prepared in accordance with Florida Rules of Appellate Procedure. When the appellant fails to provide this court with a record that is sufficient to evaluate the appellant's contentions of error, the appeals court must presume that the trial court's decision is correct.  However, the absence of a transcript and a statement of the evidence do not preclude reversal where an error of law is apparent on the face of the judgment. In such cases, the appeals court must limit consideration of the arguments on appeal to errors appearing on the face of the amended final judgment. A trial court can award permanent alimony in a marriage of moderate duration if such an award is based upon clear and convincing evidence after consideration of the factors set forth in relevant statutory provisions. Permanent alimony may be awarded following a marriage of long duration if such an award is appropriate upon consideration of the factors set forth in the relevant statutory provisions, however there is no requirement that such an award meet the clear and convincing standard of proof.

In this case, the trial court erred in failing to award the Former Wife in a long term (33 year) marriage permanent alimony on the basis that she had failed to meet the clear and convincing standard of proof. As this was a long term marriage, the trial court ought to have simply assessed the evidence based on the relevant statutory factors. The appeals court reversed the amended final judgment regarding the denial of the Former Wife's claim for an award of permanent periodic alimony and remanded for reconsideration with directions the trial court on remand should consider making an award of at least a nominal amount of permanent periodic alimony.

Former Husband’s Military Retirement Pay

Language in final judgments needs to be specific, unambiguous and allow for intended changes in the amount of such awards tied to cost of living increases or other such considerations. In this case, the trial court erred in ordering an amount, and an indexed award, of the Former Husband’s military pension payable to the Former Wife, such amount being expressed as both a percentage and specific dollar figure, thereby creating ambiguity as the dollar amount could change as certain specific adjustments are based on the order are made. The appeals court directed, on remand, that the wording be amended.


Case:             Dottaviano v. Dottaviano
Court:            Fifth District Court of Appeal.
Trial Judge:   Clyde E. Wolfe.
Attorneys:      Daniel A. Bushell, Shachar D. Spiegel, Stefani K. Nolan, Brian P. North, David Merritt.
Issues:            Child Support, Equitable Distribution, Alimony. 
Holding:         Imputing Income

Florida Statutes provide that monthly income shall be imputed to an unemployed or underemployed parent if such unemployment or underemployment is found by the court to be voluntary on that parent’s part. A trial court must employ a two-step analysis when deciding whether to impute income to a former spouse. Firstly, the trial court must determine that termination of employment was voluntary. Secondly, the trial court must determine whether the individual’s subsequent unemployment or underemployment resulted from the  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. Further, the former spouse claiming that income should be imputed to the unemployed or underemployed spouse bears the burden of showing both employability and the availability of jobs.

In this case, the trial court erred in imputing monthly income to the Former Wife when it failed to make a specific finding that she was voluntarily unemployed or underemployed. Nor did the trial court properly address that the Former Husband did not discharge the onus upon him to show that she was employable and there were available jobs for her. Finally, the trial court failed to properly address the Former Wife’s evidence as to her bona fide efforts to obtain employment.  The appeals court reversed and remanded with direction to reconsider alimony and child support, as those awards were tied to the improper imputation of income.

Matrimonial Home

Generally, the trial court should award the primary residential parent exclusive use and possession of the marital residence until the child reaches majority or is emancipated. However, special circumstances may justify partition and sale of the marital home where the parties’ incomes are inadequate to meet their debts, obligations, and normal living expenses, as well as the expense of maintaining the marital residence. Special circumstances that justify the partition of the marital home can include instances where the parties resided in the marital residence for a short period of time, lacked other significant marital assets, and a large differential in relative earning power existed between the former spouses. In this case, the trial court erred in granting exclusive possession of the matrimonial home to the Former Husband, despite the residence of the minor child being there with him, insofar as this circumstance fell into one of those special circumstances warranting partition of the marital home. Specifically, the family had lived in the martial home for a short period of time when the parties separated, the parties do not have any other significant martial assets, and there is a large difference in the parties’ earning capacity. Moreover, the payments related to the marital home are significant and the Former Husband could find a place for himself and the minor child to live that is less expensive. The appeals court ordered, on remand, that the trial court order the marital home be partitioned.


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

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

 

 

 

Florida Divorce & Family Law Update for Week Ending June 21, 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:              Martinez v. Izquierdo
Trial Judge:   Laura M. Watson.
Attorneys:     Blanca Rosa Sordo.
Issues:            Protection Against Domestic Violence.

Holding:        A trial court may enter an injunction for protection against domestic violence if it properly finds, on consideration of sufficient evidence, that the petitioner has an objectively reasonable cause to believe that he or she is in imminent danger of becoming a victim of an act of domestic violence. Under Florida Statute, the party being enjoined shall surrender any firearms of ammunition in his or her care or possession, unless he or she is a law enforcement officer, in which case, the prohibition may apply to them personally but not regarding their employment.

In this case, the trial court did not err given that the evidence was sufficient to establish that the Petitioner had an objectively reasonable cause to believe she was in imminent danger of becoming the victim of an act of domestic violence. However, in issuing the injunction, the court erroneously required the Respondent to surrender his ammunition and firearms notwithstanding that he was a law enforcement officer. The appeals court affirmed the trial court’s entry of the underlying injunction, but reversed and remanded with instructions that the trial court remove the prohibition on ammunition and firearms based on his status as a law enforcement officer, without prejudice for the trial court to provide limitations on any personal firearms or ammunition in his possession.


Case:              Herman v. Herman
Court:             Third District Court of Appeal.
Trial Judge:   Mindy S. Glazer.
Attorneys:     Evan L. Abramowitz, Cynthia L. Greene.
Issues:            Parenting, Time-sharing. 

Holding:        Florida Statutes (2015), provide that the trial court shall order the parental responsibility for a minor child be shared by both parents unless it finds that shared parental responsibility would be detrimental to the child. The trial court shall evaluate the evidence to determine if both parents are equally capable of providing for the minor child or children, and are capable of making paramount the child’s or children’s needs.

In this case, the trial court did not err in that it articulated its findings in a Supplemental Judgment, such findings being supported by competent substantial evidence. Nor did the trial court abuse its discretion by ordering shared parental responsibility. The appeals court affirmed the timesharing schedule established by the trial court in the Supplemental Judgment.


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 31, 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:               Winnier v. Winnier
Court:             Second District Court of Appeal.
Trial Judge:   Amy M. Williams.
Attorneys:      Paul H. Bowen, David S. Ristoff, Jane H. Grossman.
Issues:            Alimony. 

Holding:      A trial court must impute income reasonably projected for earnings on liquid assets awarded in property division. In this case, the trial court erred in failing to impute income to the Former Wife for earnings that could reasonably be projected based on her liquid assets, then, and without explanation, the trial court imputed such income to the Former Husband. The appeals court reversed and remanded for recalculation of the alimony amount.


Case:               Haywald v. Fougere
Court:             First District Court of Appeal.
Trial Judge:   David Rimmer.
Attorneys:      Michael T. Webster.
Issues:             Attorney’s Fees. 
Holding:          It is an abuse of discretion to grant fees where both parties are equally able to pay their own. Equalizing income through an alimony award and then awarding fees is an abuse of discretion. The court’s job is to determine whether one party has a need and the other has the ability to pay.  In this case, the trial court erred in ordering the Former Husband to pay significant sums of both alimony and child support then failing to deduct such sums in assessing his ability to pay the Former Wife’s attorney’s fees. The Former Husband no longer has these funds available within his resources.  Properly considered, the parties’ relative abilities to pay attorneys’ fees were, in this circumstance, essentially equal and an award of fees was an abuse of discretion. The appeals court reversed.


About DivorceCourtAppeals.com and Nugent Zborowski & Bruce

Matthew S. Nugent, Adam M. Zborowski & Christopher R. Bruce limit their practice to resolution of marital and family law matters in Florida's trial and appellate courts.  The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts.  The firm pays referral fees in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.