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 August 14, 2016

August 17, 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:             Donovan v. Donovan
Court:            First District Court of Appeal.
Trial Judge: John "Jay" Gontarek.
Attorneys:     Michael T. Webster, E. Jane Brehany, R. Stan Peeler.
Issues:           Alimony.

Holding: A trial court can explicitly state that it “retains jurisdiction to enter whatever other orders which may be required,” including for modification. A nominal award of alimony preserves the trial court’s jurisdiction to revisit the matter in the future. In this case, the trial court did not err when it entered a nominal alimony award to retain jurisdiction, but that was not necessary to do because jurisdiction was already retained when the court stated so. The appeals court affirmed.

Case:            Chandler v. Kibbie
Court:            First District Court of Appeal.
Trial Judge: Elizabeth A. Senterfitt.
Attorneys:     Samuel S. Jacobson, Renae J. Kenny.
Issues:           Attorney’s Fees.

Holding: In making an award of attorney’s fees, a trial court shall make factual findings regarding the total number of hours expended by the party’s attorney, the hourly rate, and the reasonableness of the fee. In this case, the trial court erred in failing to make certain findings relating to the reasonableness of the award. The appeals court reversed.

Case:             Palmer v. Palmer
Court:            First District Court of Appeal.
Trial Judge: John Miller, David Rimmer.
Attorneys:     Ross A. Keene, Kim Anthony Skievaski.
Issues:           Attorney’s Fees.

Holding: Under Florida Statutes (2011), the court may, after considering various factors, including the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees. The financial resources of the parties are the primary factor to be considered, but the other relevant circumstances include the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation was brought or maintained primarily to harass (or whether a defense was raised mainly to frustrate or stall); and the existence and course of prior or pending litigation. There is no authority for denying fees solely based on the failure to accept an offer of settlement. In this case, the trial court erred when it declined to award attorney’s fees to the Former Wife because she rejected an offer of settlement. The court misapplied the law. The court should only exercise the power to reduce fees when it would be inequitable not to do so after a review of all circumstances. The appeals court reversed and remanded to the trial court to re-address fees evaluating all pertinent considerations and not just the rejection of the settlement offer.

Case:             Ngyuen v. Ngyuen
Court:            First District Court of Appeal.
Trial Judge: Linda F. McCallum.
Attorneys:     Beth M. Terry, Carin E. Maxey.
Issues:           Equitable Distribution.

Holding: A trial court’s ruling on equitable distribution is reviewed for an abuse of discretion. An appellate court must determine whether the trial court’s order is supported by competent, substantial evidence. A trial court errs in attributing gross rental income to a party when evidence of expenses is present. In this case, the trial court erred in its allocation of rental income in devising an equitable distribution scheme which failed to account for the record evidence of expenses associated with the properties (including mortgage payments). The appeals court reversed and remanded.

Case:              N.A.G. v. J.L.G.
Court:            Second District Court of Appeal.
Trial Judge: Patrice W. Moore.
Attorneys:     Deborah L. Thomson, Ingrid Anderson.
Issues:           Parental Rights.

Holding: Florida Statute defines abandonment as, “a situation in which the parent or person having legal custody of a child, while being able, makes little or no provision for the child's support or makes little or no effort to communicate with the child, which situation is sufficient to evince an intent to reject parental responsibilities.” Abandonment is absolute, complete, and intentional and must be established by clear and convincing evidence. Termination may not be based on involuntary abandonment. In this case, the trial court incorrectly found that the Mother abandoned her children. Specifically, the trial court erred as a matter of law when it failed to rely on record evidence to support the finding of abandonment. It further erred by misapplying the statutory definition of abandonment. In particular, the evidence was not legally sufficient to support a finding that the Mother's actions evinced a settled purpose to forgo and relinquish all parental responsibilities. The appeals court reversed.

Case:             Loza v. Marin
Court:            Second District Court of Appeal.
Trial Judge: Catherine L. Combee.
Attorneys:     Javier D. Alvarez, Jean Marie Henne.
Issues:           Child Support.

Holding: Generally, the legal duty of a parent to support his or her child ceases at the age of majority. Child support orders terminate upon a child reaching majority, unless statutory exceptions apply or the parties agree otherwise. While a child support order is in force, a court has continuing jurisdiction to modify under a variety of circumstances but only during the period provided for support. Florida courts have grappled with whether or not a petition may be used to extend support for an incapacitated child beyond the age of majority even if the petition has been filed after the support obligation has terminated. The crucial issue is whether a child's continuing dependence was adjudicated before the child reached the age of majority. In this case, the trial court erred in denying the Former Husband’s petition to modify child support and the allowance of the Former Wife's counter-petition for modification of child support. The Former Wife’s counter-petition was untimely as it was made after the child turned 18 and after the parties’ MSA. As such, the trial court lacked jurisdiction to extend the Former Husband's child support obligation beyond the dependent child's eighteenth birthday. The appeals court reversed and remanded.

Case:             J.P. v. V.P.
Court:            Fourth District Court of Appeal.
Trial Judge: James L. Martz.
Attorneys:     Andrew A. Holness, Marie Calla Quartell.
Issues:           Child Support.

Holding: A post-disposition order that failed to comply with Florida Rules of Juvenile Procedure as to contents of fact and law may be remanded for the trial court to make such necessary findings. In this case, the trial court erred in an order with implemented a visitation schedule that did not contain specific findings of fact and conclusions of law as required by Florida Rules of Juvenile Procedure. The appeals court remanded.

Case:             Beckford v. Drogan
Court:            Fourth District Court of Appeal.
Trial Judge: Karen M. Miller.
Attorneys:     Rhea P. Grossman, Lydia A. Worden, Celia E. Henry.
Issues:           Paternity.

Holding: Under Florida Statutes, the plaintiff in for a paternity action has a choice of venue and the defendant must prove that the venue selection is improper. A party may have commenced proceedings for one issue in one venue and the other party for a different issue in another. The rules endorse the principle of placing related matters before the same family court judge unless impractical. It is then up to the courts to determine the application of rules and venue. In this case, the trial court did not err when it determined that the Mother did not establish that the Father’s venue choice was improper and maintained the venue on the issue of paternity, even though she had already commenced child support proceedings at another. The appeals court affirmed the order but without prejudice to the court considering a transfer based upon the convenience of the parties and witness, or to unify the proceedings with respect to the child, pending in two different counties.

Case:             Palmer, Jr. v. Palmer
Court:            Fifth District Court of Appeal.
Trial Judge: Kellie J. Miles.
Attorneys:     Therese M. Truelove, Douglas A. Kneller, Steven J. Guardiano.
Issues:            Alimony.

Holding: An order requiring a spouse to obtain a life insurance policy as security for an alimony award must be supported by record evidence, and the order must include findings as to the cost of insurance and any special circumstances justifying the need for the policy. Failure to make specific findings to support the award is reversible error. In this case, the trial court erred in not making the requisite findings. Other than the Former Wife’s request for insurance in her initial petition, the record was devoid of any testimony or evidence regarding a policy or any special circumstances justifying its requirement. The appeals court reversed and remanded for the trial court to make sufficient findings of fact to support the award or remove the insurance requirement from its order.

Case:             Gross v. Zimmerman
Court:            Fourth District Court of Appeal.
Trial Judge: Lisa S. Small.
Attorneys:     Cynthia L. Greene, Tracy Belinda Newmark, Natalie Suzanne Kay.
Issues:           Child Support, Paternity.

Holding: The standard of review for a child support award is abuse of discretion. A court will begin its consideration of child support awards with the statutory child support guideline amounts. The guidelines presumptively establish the amount of awards in an initial proceeding or in a proceeding for modification. The trier of fact may also make an award which varies, plus or minus 5%, from the guideline amount, after considering all relevant factors, including the needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent, only upon a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate. In this case, the trial court did not err in its denial of the Father’s downward deviation from the guideline child support amount since he did not demonstrate reversible error in the trial court’s decision. Nor did it err in failing to order him to order child care costs, temporary support or attorney’s fees as the Mother either failed to provide sufficient evidence. The appeals court affirmed on those points. The trial court erred, however, when it abused its discretion by imposing, in a parenting plan, an additional financial obligation requiring the Father to pay almost all of the child’s extracurricular activities, over and above the maximum amount of child support, where there was no record support for the inclusion of this additional financial obligation. Specifically, there was no evidence that the child was involved in any extracurricular activities, and the trial court’s open-ended award could subject the Father to the expense of any extracurricular activity in which the Mother may involve the child without any input by the Father or regard as to its cost. The appeals court reversed.

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Florida Divorce and Family Law Update for 4 Weeks Ending July 17, 2016

July 19, 2016

Case:             Sherlock v. Sherlock
Court:            Fourth District Court of Appeal.
Trial Judge: F. Shields McManus.
Attorneys:      Karen O’Brien Steger, Lori I. Steger, Michael J. Mortell.
Issues:            Alimony.

Holding: A trial court’s decision on whether to award permanent alimony is reviewed for abuse of discretion. So is a court’s determination of whether certain assets should be available sources of income. Permanent periodic alimony is intended 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 primary factors for a court to consider when awarding alimony are the respective spouses’ need and ability to pay. There is a rebuttable presumption that permanent alimony is appropriate after a long-term marriage. The criteria to be used in establishing a spouse’s need for alimony include the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties’ estates. However, the parties’ standard of living during the marriage does not control other considerations. The purpose of permanent alimony is not to divide future income to establish financial equality. A court should not require a spouse in need of alimony to deplete or invade capital assets to maintain his or her standard of living. However, in ruling on a request for alimony, a court must consider all sources of income available to either party, including income available to either party through investments of any asset held by that party. When a spouse with under-earning investments has the ability to generate additional earnings—without risk of loss or depletion of principal—but fails to do so, it is fair for a court to impute a more reasonable rate of return to the under-earning assets, comparable to a prudent use of investment capital. A trial court should not impute income from the home that a spouse occupies after the divorce.

In this case, the trial court did not abuse its discretion in denying the Former Husband’s request for permanent periodic alimony. Although the trial court should not have imputed income to the husband based on his current residence, the trial court did not abuse its discretion in imputing income to him from his real estate and financial holdings, even though those assets included non-liquid assets. The trial court properly imputed a reasonable rate of return to the Former Husband’s real estate and financial assets. While the trial court should not have imputed income based on the equity in his residence, this equity represented only a small portion of his net worth and accounted for a nominal amount of annual income that the trial court imputed to him. The trial court’s imputation of income from the equity in his current residence was a harmless error under the facts of this case. The appeals court affirmed.

Case:             Slaton v. Slaton
Court:            Second District Court of Appeal.
Trial Judge: Susan St. John.
Attorneys:      Ingrid Anderson, Thomas J. Donnelly.
Issues:            Custody.

Holding: A trial court may enter an order temporarily modifying child custody, even without notice to the opposing party, if there is evidence of a bona fide emergency situation. A trial court may not modify primary residential custody based on a parent's behavior without also identifying the steps that the parent must take to restore the original custody arrangement. In this case, the trial court did not err in granting temporary residential custody to the Father as there was evidence of domestic violence between the Mother and her new partner. This evidence was sufficient to support the trial court's finding that an emergency situation existed and its conclusion that modification of the Mother's custody of and visitation with the children was necessary. The trial court erred, however, as its order did not provide a timesharing schedule for the Mother and the children, and it did not delineate the actions required of the Mother if she wished to regain primary residential custody. Nor did it contain any support for the proposition that zero timesharing for the Mother is the appropriate result. The appeals court affirmed on temporary residential custody and reversed and remand for further proceedings.

Case:             E.M. & B.O. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: Stacey Schulman.
Attorneys:      Jeffrey B. Levy, Pamela Jo Bondi, Carolyn Schwarz, Kelley Schaeffer.
Issues:            Termination of Parental Rights.

Holding: In this case, the trial court did not err in granting the Department’s petition for termination of parental rights, based on only 2 of several grounds in the pleadings. Those grounds were that the Father was incarcerated and would be for a significant portion of the child’s minority; and continuing the parental relationship with the Father would be harmful to the minor child.

However, the judgment contained language indicating that termination was based on all the grounds alleged in the petition. The appeals court remanded for correction of the scrivener’s error.

Case:             Viruet v. Grace
Court:            Fifth District Court of Appeal.
Trial Judge: Heather Pinder Rodriguez.
Attorneys:     Scott E. Siverson.
Issues:           Termination of Parental Rights.

Holding: In this case, the trial court did not err in denying the Father’s motions for a new trial and rehearing, despite his assertions that he was not afforded an opportunity to present his evidence. The trial court did err, however, in ordering the Father to pay arrearage in child support when neither the magistrate’s report (which the trial court approved) nor the final judgment, stated the amount in arrears. The appeals court affirmed on denial of the Father’s motions (but without prejudice to permit him to bring a new motion) and remanded for the trial court to determine the arrearage and amend the final judgment to specify the amount.

Case:             Holaway v. Holaway
Court:            Fifth District Court of Appeal.
Trial Judge: Mark J. Hill.
Attorneys:    John N. Bogdanoff, Shannon McLin Carlyle, Earle W. Peterson, Jr., Barry P. Burnette, Matthew Capstraw.
Issues:           Child Support, Equitable Distribution.

Holding: Child Support
In determining an award of child support, a trial court errs if it fails to explain the calculations used to arrive at the parties’ imputed incomes. In this case, the trial court erred when it imputed income to Husband without explaining its calculations.

Equitable Distribution

A trial court abuses its discretion when it omits marital liabilities from the equitable distribution. In this case, the trial court erred when it vallued the parties’ property as at the date of filing the petition for dissolution, but then used a different valuation date for the parties’ business interests. Further, the trial court erred when it awarded post-valuation profits from business assets to the Wife after it specifically found that income generated after valuation was passive.

The appeals court reversed as to the calculation of child support, equitable distribution, and award of post-valuation profits.

Case:             Everett v. Everett
Court:            First District Court of Appeal.
Trial Judge: Mary Polson.
Attorneys:      Curtis W. Brannon.
Issues:            Contempt.

Holding: In deciding a motion for a stay of a contempt order, a lower tribunal shall consider the likelihood of prevailing on appeal and irreparable harm to the appellant if the motion is not granted. An appeals court will review a lower tribunal’s decision on a motion to stay under the “highly deferential” abuse of discretion standard. In this case, the trial court did not err when it ruled on the Former Wife’s motion for contempt against the Former Husband for failure to pay child support without first hearing his pending petition for modification while also not making a detailed finding that he could afford the purge. It was open to the trial court to make such a ruling as it had the benefit of all the evidence before it. The appeals court affirmed.

Case:             Freiha v. Freiha
Court:            First District Court of Appeal.
Trial Judge: Charles W. Arnold, Jr., Steven M. Fahlgren.
Attorneys:     William S. Graessle, Jonathan W. Graessle, Rebecca Bowen Creed, Dale G. Westling, Sr..

Issues: Parenting, Child Support, Alimony.

Holding: In this case, the trial court erred when it ordered final dissolution of marriage in the absence of a parenting plan which included a timesharing schedule and regarding the amount of life insurance coverage which the Former Husband was ordered to maintain as it lacked a sufficient evidentiary basis (the record bore no evidence of the availability or cost of the insurance or his ability to pay that unknown cost). The appeals court reversed on the life insurance requirement and to allow the trial court to order timesharing and recalculate the child support obligation.

Case:             Dunkel v. Dunkel
Court:            Second District Court of Appeal.
Trial Judge: Catherine M. Catlin.
Attorneys:     Cynthia L. Greene, Allen Dell, Michelle Ralat Brinner, Michael L. Lundy, Mark F. Baseman.
Issues:           Equitable Distribution, Alimony.

Holding: A temporary alimony award pending the final judgment in the lower court is merged in the judgment and does not continue after the judgment. In this case, the trial court erred when it ordered the continuation of temporary alimony remain in effect until the post-dissolution equitable distribution transfers were effected. A temporary mediation agreement between the parties on point terminated upon entry of the final judgment. The appeals court reversed the award of temporary alimony and remanded.

Case:             Fischer v. Fischer
Court:            Fourth District Court of Appeal.
Trial Judge: Jeffrey Dana Gillen.
Attorneys:      John D. Boykin, Matthew S. Nugent, Adam M. Zborowski.
Issues:            Alimony.

Holding:         An involuntary dismissal may not be entered before the plaintiff has completed the presentation of his evidence. In actions involving numerous counts, dismissal of the entire case is proper only if the plaintiff has failed to establish a prima facie case as to each of the counts. In this case, the trial court erred in:

a.     involuntarily dismissing the Former Husband’s entire petition when he had not finished presenting his case-in-chief. The trial court denied the Former Husband his due process.

b.     dismissing the Former Husband's entire multi-count petition based solely on his inability to establish one ground for the relief sought (modification).

The appeals court reversed and remanded.

Case:             Pachter, Jr. v. Pachter
Court:            Fourth District Court of Appeal.
Trial Judge: Jeffrey Dana Gillen.
Attorneys:      John F. Schutz, Leonel R. Plasencia, Curt Sanchez.
Issues:            Equitable Distribution.

Holding:         In this case, the trial court in:

a.     requiring the Former Husband, by an unequal distribution of marital assets, to make a payment to the Former Wife for income taxes assessed as a result of dissipation of marital assets (fraudulent IRA withdrawals). The Former Husband paid the taxes when the withdrawals were made from the IRA account so the final judgment constitutes a “double” payment for the taxes.

b.     b. requiring him to pay certain expenses of the marital home without credit for one-half of the expenses from the sale proceeds.

The appeals court reversed: (1) the trial court’s double imposition of income tax consequences; and (2) the order requiring the Former Husband to pay all of the expenses of the marital residence pending its sale, without reimbursement for one-half of those expenses from the sale proceeds.

Case:             Smith v. Smith
Court:            Fourth District Court of Appeal.
Trial Judge: David E. French.
Attorneys:      Jennifer S. Carroll.
Issues:            Right to Marry.

Holding: The appeals court denied a motion for rehearing and rehearing en banc and granted a motion to certify a question of great public importance being: “Where the fundamental right to marry has not been removed from a ward under section 744.3215(2)(a), Florida Statutes, does the statute require the ward to obtain approval from the court prior to exercising the right to marry, without which approval the marriage is absolutely void, or does such failure render the marriage voidable, as court approval could be conferred after the marriage?” The majority and dissent disagree on the effect of a statute which restricts the fundamental right to marr

Case:             Jaeger v. Jaeger
Court:            Fourth District Court of Appeal.
Trial Judge: Krista Marx.
Attorneys:      Elizabeth J. Kates, Lisa Marie Macci, John F. Schutz.
Issues:            Equitable Distribution.

Holding: The determinations of a trial court within a dissolution judgment for abuse of discretion must be supported by competent evidence. In this case, the trial court erred in the award of equitable distribution as its determinations were not supported by competent, substantial evidence. Specifically, per the record, the parties stipulated a value for a marital asset portion of a retirement account that the trial court valued otherwise. The final judgment should have reflected the value agreed upon by the parties. The appeals court reversed for recalculation of the equitable distribution.

Case:             Potchen v. Potchen
Court:            Fifth District Court of Appeal.
Trial Judge: Jessica J. Recksiedler.
Attorneys:
Issues:            Domestic Violence Injunction.

Holding: An incarcerated party has a right to be heard in civil matters if the party has brought to the court's attention his or her desire to appear personally or telephonically. In this case, the trial court erred in failing to allow the Appellant to appear by telephone from prison. In so doing, the trial court denied him due process. The appeals court reversed and remanded.

Case:    Bass v. Bass
Court:            First District Court of Appeal.
Trial Judge: David Rimmer.
Attorneys:     Stephen A. Pitre, Trevor A. Thompson, Laura E. Keene.
Issues:            Custody, Due Process.

Holding: A court violates due process when it modifies visitation, changes primary residence, or alters child support when the pleadings do not include such issue. In this case, the trial court erred when it granted the Former Husband relief (temporary custody) not set out in the pleadings, and raised only at the start of the hearing. The appeals court reversed.

Case:             McFatter v. McFatter
Court:            First District Court of Appeal.
Trial Judge: John L. Fishel, II.
Attorneys:      Linda A. Bailey, Jerry L. Rumph, Jr., Hunter J. Hendrix, Rachel R. Seaton.
Issues:            Parenting.

Holding:        A Former Spouse cannot seek to enforce compliance on an issue resolved in a temporary order if the final judgment is silent on such a matter. In this case, the trial court erred in its interpretation on whether a specific parenting provision was incorporated into the Amended Final Judgment. Specifically, the Amended Final Judgment did not incorporate, or attach, that portion of the Temporary Order allowing for the Father to make the decisions concerning the children’s contact with his mother. The appeals court reversed.

Case:             Jackson v. Jackson
Court:            Third District Court of Appeal.
Trial Judge: Antonio Marin.
Attorneys:      Ilene F. Tuckfield, Hegel Laurent.
Issues:            Procedure.

Holding: An appeals court has the power to award a new trial where, as here, essential records have been destroyed by an official of the lower court through no fault of the appellant. In this case, the trial court’s decision was appealed by the Former Husband however, the record was unavailable as the court reporter died. A search for the court reporter’s recordings or stenographic equipment, performed by the court reporting firm and appellant’s counsel, was unavailing and the parties attempted, unsuccessfully, to reconstruct the record in accordance with Florida Rules of Appellate Procedure. The appeals court reversed the final judgment and remanded for a new trial.

Case:            A.G. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: James L. Martz.
Attorneys:      Antony P. Ryan, Richard G. Bartmon, Deborah Anne Schroth, Sara E. Goldfarb.
Issues:            Dependency.

Holding: A trial court may not grant a motion restricting the method of examining a child witness without holding an evidentiary hearing and making factual findings supported by the evidence. Factors for an appellate court to consider in reviewing a competency determination include the entire context of the child’s testimony and whether other evidence corroborates the child’s testimony. A prerequisite to the admission of child-victim hearsay is for the court to conduct an evidentiary hearing to ascertain the reliability of the out-of-court statements. In this case, the trial court erred as it granted the Department’s dependency motion based on its assertions, but not on proper evidence, that a minor child would suffer emotional or mental harm if required to testify in open court. Nor did the trial court conduct the proper test as to the competence of a minor child to give evidence. Finally, the trial court improperly admitted child-victim hearsay evidence. The appeals court reversed and vacated a disposition order and case plan and provided directions on remand.

Case:             J.N.S. v. A.M.A.
Court:            Fifth District Court of Appeal.
Trial Judge: Tonya B. Rainwater.
Attorneys:
Issues:            Child Support, Time-Sharing.

Holding: A trial court’s order establishing a parenting plan is reviewed for an abuse of discretion. Florida Statutes (2012), lists the expenses that parents may deduct from their gross income to determine their net income, including mandatory retirement payments. A child support order must make findings on a parent’s potential earning ability or address whether she or he is voluntarily underemployed. Here, the trial court’s finding on time-sharing could not be properly reviewed because no transcript was provided. The Mother appealed on the grounds that the trial court failed to state, as required by statute, that it had considered evidence of domestic violence, and the best interests of the children. The appeals court noted concern about some trial court findings but was compelled, in the absence of a transcript, to affirm on time-sharing. The trial court had also considered the statutory criteria relating to time-sharing and made findings of fact related to each factor. The trial court erred, however, in its application of the child-support guidelines as it refused to deduct the Mother’s mandatory retirement benefits from her gross income and failed to make findings regarding the Father’s employment status and potential earning ability. The appeals court affirmed on timesharing and reversed and remanded on child support.

Case:             Martin v. Martin
Court:            Fifth District Court of Appeal.
Trial Judge: John M. Alexander.
Attorneys:      Aaron M. Makofka, Valarie Linnen.
Issues:            Alimony.

Holding: A trial court may reduce or terminate an alimony award when a Former Spouse enters into a supportive relationship with an individual and resides with him or her. Florida Statutes (2015), sets out the factors a trial court shall weigh in making the determination as to whether a supportive relationship exists. These include the extent to which the obligee and the other person have held themselves out as a married couple and has supported the other, in whole or in part. In this case, the trial court erred in deciding that a supportive relationship did not exist between the Former Wife and another individual when the evidence indicated both held themselves out as a married couple and received/provided support and financial benefits to one another. The appeals court reversed and remanded.

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Florida Divorce & Family Law Update for Week Ending April 17, 2016

April 18, 2016

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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Florida Divorce & Family Law Update for Week Ending January 17, 2016

January 19, 2016

Case:              J.P. v. D.C.F.
Court:            First District Court of Appeal.
Trial Judge: Marci L. Goodman.
Attorneys:     Crystal McBee Frusciante, Dwight O. Slater.
Issues:            Termination.

Holding:   A finding that evidence is clear and convincing attracts a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evidentiary support. This standard of review is highly deferential. Prior to terminating a parent's rights under Florida statutes, several requirements must be met.

The trial court must find the children's life, safety, or health would be threatened by continued interaction with the parent, regardless of the provision of services.
The Department must show that there is no reasonable basis to believe a parent will improve and termination is in the child’s best interest.
Termination of parental rights must meet the least restrictive means test.

In this case, the trial court did not err as its findings were supported by competent, substantial evidence. A statutory ground for termination of parental rights was proven, the evidence supported the court’s finding that termination was in the child’s manifest best interest, and termination of parental rights passes the least restrictive means test. Using the “highly deferential” standard of review applied to termination of parental rights cases, the appeals court affirmed.

Case:              J.F. v. D.C.F.
Court:            Second District Court of Appeal.
Trial Judge: Scott Brownell.
Attorneys:      Patrick R. Cunningham, Pamela Jo Bondi, Meredith K. Hall, David Krupski.
Issues:            Termination.

Holding:        Florida statutes requires the trial court to find by clear and convincing evidence that at least one of the statutory grounds for termination exists. The amendment to section 39.806(1)(f), effective on July 1, 2014, which applied to this matter, provided that proof of a nexus between egregious conduct to a child and the potential harm to the child's sibling is not required. Prior to the amendment, the case law required proof of nexus, which was often provided by expert testimony. No one challenged the constitutionality of the amendment on the ground that it could not withstand the strict scrutiny required for statutes that impact a fundamental right.

In this case, the trial court did not err as there was competent, substantial evidence supporting termination as to each child on at least one of the grounds enumerated in section 39.806, Florida Statutes (2014). The appeals court affirmed, however, wrote to address the elimination of the "nexus" requirement such that trial courts may wish to take extra care in the application of this statute until any questions concerning its constitutionality have been resolved.

Case:              N.B. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge: Cindy Lederman.
Attorneys: Eugene F. Zenobi, Kevin Coyle Colbert, Karla Perkins, Kelley Schaeffer (Sanford).
Issues:            Termination.

Holding:        To terminate parental rights, the State must demonstrate by clear and convincing evidence: (1) the existence of one of the statutory grounds under Florida statutes; (2) that termination is in the best interest of the child; and (3) that termination is the least restrictive means of protecting the child from harm. The standard of review for challenges to the sufficiency of the evidence supporting a termination of parental rights is whether the trial court’s order is supported by substantial competent evidence. Facial constitutional attacks and attacks involving fundamental liberty interest, such as parental rights, may be raised for the first time on appeal. Florida statutes authorize the filing of a petition for termination of parental rights when on three or more occasions the child or another child of the parent or parents has been placed in out-of-home care and the conditions that led to the placement were caused by the parent or parents. When a statute impinges on a fundamental liberty interest, such as parenting one’s child, an appeals court must analyze the constitutionality of the statute under a strict scrutiny standard. The State must establish at least one statutory ground by clear and convincing evidence. It must also establish by clear and convincing evidence that termination is in the manifest best interest of the children and that termination is the least restrictive means of protecting the children from harm.

In this case, the trial court did not err in rendering its order as it was based on the record which contained competent evidence establishing the statutory grounds for termination exist, specifically that termination was in the manifest best interest of the children and was the least restrictive means of protecting the children from harm. The appeals court affirmed.

Case:              D.C.F. v. J.S. and S.I.
Court:            Fourth District Court of Appeal.
Trial Judge: Michael Heisey.
Attorneys:     Rosemarie Farrell, Laura E. Lawson, T. Charles Shafer, Ryan Thomas Truskoski.
Issues:            Termination.

Holding:         Termination may be ordered when:

the parent of a child is incarcerated and the period of time for which the parent is expected to be incarcerated will constitute a significant portion of the child’s minority. When 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 parent of a child is incarcerated and the court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and, for this reason termination is in the best interest of the child.

When determining harm, the court shall consider the following factors:

a. The age of the child.
b. The relationship between the child and the parent.
c. The nature of the parent’s current and past provision for the child’s developmental, cognitive, psychological, and physical needs.
d. The parent’s history of criminal behavior, which may include the frequency of incarceration and the unavailability of the parent to the child due to incarceration.
e. Any other factor the court deems relevant.

In this case, the trial court erred in denying the termination of both parents when the Department proved by clear and convincing evidence that, by applying the statutorily mandated factors, continuing the parental relationship with the incarcerated father would be harmful to the child and, for this reason, termination of the father’s parental rights is in the child’s best interests. First, the court did not address the relationship between the child and the father using the statutory factors. The Department proved by clear and convincing evidence that the father and the child have no relationship. Second, the court did not address the father’s current and past provision for the child’s developmental, cognitive, psychological and physical needs. Third, regarding the father’s history of criminal behavior, the court merely noted that the father’s commission of armed burglaries and felony assault with a firearm resulting in injury was “disturbing.” The court did not address the fact that this was the father’s second conviction for armed violent offenses or how the resulting incarceration caused his prolonged unavailability to parent. Fourth, while the court mentioned the child’s age, the court did not address the child’s age when considering the harm flowing from the father’s prolonged unavailability to parent.

The appeals court reversed the denial of the termination of the Mother and the Father, respectively.

Case:              Tatum v. Triana-Tatum
Court:            Fifth District Court of Appeal.
Trial Judge: Robert M. Evans.
Attorneys:     Carlton Pierce, Oscar Gonzalez, Jr.
Issues:            Child Support, Relocation.

Holding: Retroactive child support begins to run from the date the petition for modification is filed. In this case, the trial court erred when it set as the accrual date for retroactive child support, a date prior to that on which the Father’s supplemental petition for modification was filed. The appeals court remanded for recalculation of child support arrearages.

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Florida Divorce & Family Law Update for 2 Weeks Ending January 10, 2016

January 13, 2016

Case:              A.C. v. D.C.F. and Adoptive Parents of R.A.
Court: Second District Court of Appeal.
Trial Judge: Kathleen J. Kroll.
Attorneys:     Ronald L. Bornstein, Meredith K. Hall, Bradenton, Philip M. Burlington.
Issues:           Termination.

Holding:     A motion for relief from judgment should not be summarily denied without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege ‘colorable entitlement’ to relief. In this case, the trial court erred in denying the Mother’s motion to vacate the order terminating her parental rights on the basis that she lacked standing (an adoption situation). The appeals court reversed but expressed no opinion as to whether any colorable entitlement to relief under rule 8.270 was shown.

Case:              Forssell v. Forssell
Court: Fourth District Court of Appeal.
Trial Judge: Laura M. Watson.
Attorneys:     Daniel E. Forrest, Joyce A. Julian.
Issues:           Time-sharing.

Holding:       In this case, the Father brought two appeals, that of a: 1. non-final order granting the emergency motion of the Mother to indefinitely suspend his time-sharing with their minor children; and 2. non-final order denying the parties’ joint request to vacate and dissolve the final judgment for protection against domestic violence, which the Mother had obtained against him. In this case, the trial court abused its discretion in failing to set out, in its order, the steps the Father must take to re-establish time-sharing. The appeals court consolidated two cases and reversed the time-sharing order in part and the order denying the motion to vacate and dissolve the injunction.

Case:              Benedict v. Benedict
Court: Fourth District Court of Appeal.
Trial Judge: Tim Bailey.
Attorneys:     Herbert L. Benedict, William G. Crawford.
Issues:           Alimony.

Holding:     The Former Wife sought a judgment on alimony arrearages while the Former Husband’s petition to modify alimony was pending. The Former Husband appeals from the money judgment of the trial court. He argues that the judgment constituted error because he is disabled and unemployed and the Former Wife’s improved financial circumstances obviate her need for support. In this case, the trial court did not err as the Former Husband must raise his claims in the trial court during modification proceedings and must present evidence in support of his modification petition. The appeals court affirmed but without prejudice to the Former Husband proceeding on his modification petition and then seeking relief from the alimony arrearages judgment if the result of the modification proceeding warrants such relief.

Case:              S.L. v. D.C.F.
Court: Second District Court of Appeal.
Trial Judge: Lee A. Schreiber.
Attorneys:     Toni A. Butler, Meredith K. Hall, Laura Lawson.
Issues:           Termination.

Holding: There are strict time frames in cases involving the termination of parental rights. Under the Florida Rule of Judicial Administration, there is a sixty-day time requirement for decisions by courts in such matters. There is also public policy of expediting termination proceedings. In this case, the trial court rendered its final judgment over eight months after the termination hearing (and only after the Guardian Ad Litem filed a motion for ruling on petition for termination of parental rights). During the eight-month delay, several events occurred that required judicial review, including a change of custody that separated the younger children from the older ones. The appeals court affirmed but wrote to emphasize that strict compliance with the rules and statutes governing the time frames in dependency and termination cases is required.

Case:              Felice v. Felice
Court: Second District Court of Appeal.
Trial Judge: Christine Greider.
Attorneys:     Appellant was pro se.
Issues:           Equitable Distribution, Parenting.

Holding:

Equitable distribution
An inter-spousal agreement can expressly waive a Former Spouse's rights and claims in property, including the appreciated or enhanced value of property that occurs during the marriage. In this case, the trial court erred in including a portion of the value of the Former Husband's premarital home as a marital asset in the equitable distribution scheme. Even though the agreement did not specifically refer to any right to the appreciation or enhancement of his premarital home, the broad language of the agreement expressly waived the Former Wife's rights and claims in the property and was considered to include the appreciated or enhanced value of the property that occurred during the marriage. The appeals court reversed.

Parenting
If a trial court modifies a parenting plan in an order on motions for rehearing it must also implement the new parenting plan in the amended final judgment. In this case, the trial court erred in failing to incorporate into the amended final judgment the amended parenting plan that was ordered on rehearing from the original final judgment. The appeals court reversed the amended final judgment to the extent that the parenting plan language and attached parenting plan were inconsistent with the trial court's rulings on rehearing and directed the trial court to amend to be consistent with same.

Case:              Pollack v. Pollack
Court: Fifth District Court of Appeal.
Trial Judge: Charles Hood.
Attorneys:     Richard J. D'Amico, Philip J. Bonamo.
Issues:           Alimony.

Holding:       In this case, the trial court erred by terminating alimony retroactively to the date when the recipient Former Wife Appellant began residing with her significant other, as opposed to the date when the payor Former Husband filed his petition to terminate alimony. The appeals court reversed and remanded with directions to the trial court to enter a new order terminating alimony retroactively to the date of the supplemental petition for modification.

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Florida Divorce & Family Law Update Week Ending August 23, 2015

August 26, 2015

Case:              Weaver v. Weaver
Court:            Fourth District Court of Appeal.
Trial Judge: Amy L. Smith.
Attorneys:     Paul M. Herman, Jr., Jeffrey M. Kirsch.
Issues:            Equitable Distribution.

Holding:         Florida Statutes (2013) provide that when determining equitable distribution a trial court shall consider the contribution of each spouse to the acquisition, enhancement, and production of income, or the improvement of (or the incurring of liabilities to) both the marital assets and the non-marital assets of the parties. Florida Statutes (2013) also provide that the division of marital assets shall be equal unless there is a reason for unequal distribution. In this case, the trial court erred in awarding the Former Wife an interest in the marital home, which the Former Husband acquired prior to marriage, when there was no evidence that she had invested money in the home. Nor was there evidence to show an increase or enhancement of the value of the home during the marriage. The evidence most favorable to the Former Wife showed that she and the Former Husband pooled their incomes and paid the mortgage and other household expenses from their pooled funds. She had sold her own home prior to the marriage and spent the proceeds on their wedding, honeymoon, a boat, and a motor home. The trial court also failed to make the required factual determinations to equitably distribute the proceeds from out of state properties they owned. The appeals court reversed for further proceedings as to the real property.

Case:              W.L. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: Edward H. Merrigan, Jr..
Attorneys: Antony P. Ryan, Melanie L. Casper, Paulina Forrest, Pamela Jo Bondi, Carolyn Schwarz, Patricia Murphy Propheter.
Issues:            Termination.

Holding:         Florida Statutes (2013) require trial courts ordering termination of parental rights to enter written orders which contain findings of fact and conclusions of law. In order to terminate on the grounds that a child’s life, safety, or health would be threatened by continued interaction with a parent, irrespective of the services being provided in support of the parent, a trial court must find that any provision of services would be futile or that the child would be threatened with harm nonetheless. In this case, the trial court erred in failing to recite which of the petitioned grounds it relied on in entering the final judgment; it failed to make the necessary factual findings; and it omitted key conclusions of law. The appeals court vacated the termination order and remanded.

Case: Blevins v. Blevins

Court:            Fifth District Court of Appeal.
Trial Judge: Scott C. Dupont
Attorneys:      Brian P. North, Mary Esther, Philip J. Bonamo.
Issues:            Time-sharing.

Holding:         A final divorce decree providing for the custody of a child can be materially modified only if there are facts concerning the welfare of the child that the court did not know at the time the decree was entered, or if there has been a substantial change in circumstances shown to have arisen since the decree. The petitioning parent bears an extraordinary burden to prove a substantial change in circumstances. Substantial, competent evidence of a substantial change of circumstances is required for modification. The parents’ inability to communicate does not satisfy the substantial change requirement for modification. In this case, the trial court erred in modifying because the location of the parties’ respective residences was known at the time of the final judgment. The parties’ evidence established an inability to communicate but this fails to satisfy the substantial change requirement for modification. The appeals court reversed the modification order and remanded with instructions to reinstate the equal time-sharing schedule set forth in the final judgment of dissolution

Case:              Felipe v. Rincon
Court:            Fifth District Court of Appeal.
Trial Judge: C. Jeffery Arnold.
Attorneys:     Alejandro L. Marriaga, Gisela Then Laurent.
Issues:            Procedure, Paternity, Custody, Time-sharing.

Holding:         Florida Family Law Rules of Procedure require sufficient notice to parties of final hearings. In this case, the trial court erred when it entered default judgment against the Mother despite her not being properly served with the motion and receiving insufficient notice. The trial court relied on its own certificate of service noting the wrong address for the Mother despite her having filed an updated address several weeks prior. The record does not reflect that Mother received proper service of the counter-petition, the motion for default, the order granting default, or notice of the final hearing. The appeals court reversed the default final judgment and remanded for the trial court to vacate the judicial default.

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