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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