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:              Nolan v. Nolan
Court:            First District Court of Appeal.
Trial Judge: E. McRae Mathis.
Attorneys:     Gary Baker, Barry L. Zisser, Corrine A. Bylund.
Issues:           Alimony, Equitable Distribution, Attorney’s Fees.

Holding:        Equitable Distribution

The reversal and remand of the equitable distribution portion of the final judgment necessitates reversal and remand of the alimony and attorney’s fees portions of the final judgment as well. As such, other aspects of the final judgment required reversal and remand.

Alimony

Florida Statutes (2015), directs the trial court to first make a specific factual determination as to whether either party has an actual need for alimony and whether the other party has the ability to pay. If the trial court so determines, it must then consider all of the relevant factors in section 61.08(2)(a)-(j), Florida Statutes (2015). The parties here were married for 33 years, which is considered a long-term marriage which raised a rebuttal presumption of entitlement to permanent alimony. In this case, the trial court erred as the alimony award was not adequately supported by the evidence or the findings in the final judgment. While Florida Statutes (2015), directs the trial court to consider all sources of income available to either party, (including overtime and bonuses) it simultaneously recognized that a seven-day work week is not reasonable. The trial court erred in calculating the alimony award based upon the husband’s income that was unsustainable and that was also shown, both by the evidence and basic notions of reasonableness, to be no longer available to him.

Attorney’s Fees

A trial court abuses its discretion in awarding attorney’s fees if the equal distribution of the marital property has been achieved and the trial court equalized incomes through its alimony awards. Florida Statutes (2015), allows the trial court to order a party to pay a reasonable amount of attorney’s fees after considering the financial resources of both parties.

In this case, the trial court erred as, it awarded attorney’s fees when the final judgment placed the Former Wife in a substantially equal position as the Former Husband. The appeals court remanded.

Case:              Bielling v. Bielling
Court:            First District Court of Appeal.
Trial Judge:   W. Gregg McCaulie.
Attorneys:     Christopher T. Wilson.
Issues:           Child Support, Time Sharing, Parenting.

Holding:        Due process requires that a party be given the opportunity to be heard and to testify and call witnesses on his or her behalf. The denial of this right is fundamental error. Denial of due process is valid basis for disqualification of a trial judge but an appellate court requires an order at issue properly before it to review. In this case, the trial court erred as it entered final judgment without notice to the parties, while the hearing was ongoing. The appeals court reversed but as issue of disqualification was not properly before it, could not address it.

Case:              B.G. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge:   Kirk C. Volker.
Attorneys:     Thomas Montgomery, Meredith K. Hall, Bradenton, Sara E. Goldfarb.
Issues:            Dependency.

Holding:        A court cannot relinquish jurisdiction to circumvent The Interstate Compact on the Placement of Children (“ICPC”). In this case, the trial court erred in relinquishing jurisdiction of a matter regarding dependency in Florida (where the Mother had custody pursuant to a Domestic Relations Order) to Texas (where the Father resided and had obtained a Shelter Order). Specifically, it: a) found that the Child was permanently placed with the Father by virtue of the Shelter Order, which did not alter the Father’s status as the noncustodial parent under the prior the Mother’s Domestic Relations order; b) tried to circumvent the ICPC; and c) relinquished jurisdiction over the Child in the middle of a dependency case after removing her from the Mother who had custody under a prior court order. The appeals court vacated and remanded.

Case:              S.M. v. D.C.F.
Court:            Fifth District Court of Appeal.
Trial Judge:   Michelle T. Morley.
Attorneys:     Summer N. Boyd, Deborah A. Schroth, Christopher S. Mulligan, WendieMichelle Cooper.
Issues:             Termination.

Holding: An order for termination must be founded on compelling, substantive evidence and proper application of such evidence to the relevant statutory provisions. In this case, the trial court did not err when it ordered termination of the Father’s parental rights as the order. There were multiple statutory grounds properly found by the trial court. The appeals court affirmed but remanded for clarification of the order on entry.

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

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

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

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

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

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

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

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

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

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

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

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

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