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 June 12, 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:             McWilson v. McWilson 
Court:            First District Court of Appeal.
Trial Judge:   Gary L. Bergosh.
Attorneys:     Stephen A. Pitre.
Issues:           Child Support, Parenting, Equitable Distribution.

Holding:  Visitation travel expenses should be allocated in the same guidelines ratio as governs allocation of the other child care expenses, unless the trial court makes findings explaining why a different allocation is needed to achieve an equitable result. In this case, the trial court erred as the gross income used on the child support guidelines worksheet did not match the figures on the parties’ most recent financial affidavits and it made no findings explaining its decision which departed from the normal process. The appeal court could not determine whether the award was made in accordance with Florida statutes, and reversed and remanded.

Case:             Lopez v. Lopez
Court:            Third District Court of Appeal.
Trial Judge:   David C. Miller.
Attorneys:     Geoffrey B. Marks, G. Bart Billbrough, David M. Gersten, Joseph A. Sacher, Christopher A. Noel.
Issues:             Divorce.

Holding:  To prevail on a petition for a writ of certiorari, a party must demonstrate that the contested order constitutes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case, (3) that cannot be corrected on post-judgment appeal. As a condition precedent to invoking a district court’s certiorari jurisdiction, the petitioning party must establish that it has suffered an irreparable harm that cannot be remedied on direct appeal. In this case the trial court did not err when it found no material injury which could not be corrected on post-judgment appeal and the parties’ respective claims to immediate possession remain subject to determination. The appeals court affirmed.

Case:             A.D.A. & M.J.L. v. D.M.F.
Court:            Fourth District Court of Appeal.
Trial Judge:   Howard H. Harrison.
Attorneys:     Andrew A. Harris, J. Mark Maynor.
Issues:            Paternity.

Holding:  Under Florida statutes when the unmarried parents a child file a voluntary acknowledgement of paternity, such acknowledgement creates a rebuttable presumption of paternity. This is subject to the right of any signatory to rescind the acknowledgement within 60 days after it was signed or the date of an administrative or judicial proceeding relating to the child, whichever is earlier. Further, if the mother and the reputed father get married, any time after the child is born, the child is deemed and held to be the child of the husband and wife. However, the presumption of paternity cannot rest on false assertions by the parents.  In this case, the trial court erred when it denied a motion for paternity testing filed by a man who sought to establish himself as the biological father of a child after the Mother married a different man when the Mother had presented false affidavits to create the presumption of paternity for her current husband when both knew the other man could have been the father of the child. There was no presumption and his rights were infringed by being prevented from seeking a paternity declaration. The appeals court reversed and remanded.

Case:             Powers v. Powers
Court:            Second District Court of Appeal.
Trial Judge:   Keith Meyer.
Attorneys:     Jane H. Grossman, K. Dean Kantaras.
Issues:           Attorney’s Fees. 

Holding:  Florida statutes (2014), govern attorneys' fee and cost awards in post dissolution enforcement proceedings. The appropriate inquiry for entitlement to fees and costs is each spouse's need for suit money versus each spouse's respective ability to pay. The court must make findings of fact sufficient to permit appellate review of its decision to award or deny a party's request for attorneys' fees and costs under statute. In this case, the circuit court erred in its denial of the Former Wife's request for attorneys' fees and costs as it found no basis upon which to award either party fees or costs as requested. The appeals court reversed and remanded.

Case:             D.A.D. v. J.S.
Court:            Second District Court of Appeal.
Trial Judge:   R. Thomas Corbin.
Attorneys:     Robert L. Donald, Joseph P. Hoffman.
Issues:           Paternity. 

Holding:  Once a foreign judgment is domesticated in Florida, it is to be treated as an original Florida decree. An order adjudicating issues not presented by the pleadings, notice to the parties, or litigated below denies fundamental due process. In this case, the circuit court erred when it improperly modified a domesticated paternity judgment in ways that were not pleaded in the modification petition. The appeals court reversed.

Case:             Levesque v. Levesque
Court:            Second District Court of Appeal.
Trial Judge:   Amy M. Williams.
Attorneys:     Christin C. Brennan, Jane H. Grossman.
Issues:            Alimony. 

Holding:  In this case, the trial court abused its discretion in awarding durational instead of permanent periodic alimony when the trial court found that the Former Wife was disabled and the undisputed evidence established that she was unable to return to work. The appeals court reversed.

Case:             Durst v. Durst
Court:            Fifth District Court of Appeal.
Trial Judge:   Mike Murphy.
Attorneys:     Melanie M. Demps.
Issues:            Alimony. 

Holding:  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. In this case, the trial court erred when the Former Husband was not afforded due process. Specifically, despite the lack of a hearing, the trial court entered an order granting the Wife’s motion. The failure to afford the Husband an opportunity to present evidence and be heard deprived him of his right to procedural due process. The appeals court reversed.

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

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