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 May 8, 2016

May 10, 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:       Ivanovich v. Valladarez
Court:            Second District Court of Appeal.
Trial Judge: Keith Spoto, William D. Sites.
Attorneys:      Elizabeth S. Wheeler.
Issues:            Child Support, Attorney’s Fees.

Holding:        Child Support

A retroactive child support obligation may not be imposed prior to the filing of a petition seeking a modification. On a motions for modification, a trial court may modify child support retroactively to the date of the filing of the action or supplemental action for modification. In a custody proceeding, the court is precluded from entering a judgment on any matter outside the issues framed by the pleadings. Specific findings regarding the parties' incomes are necessary for a determination of whether the support ordered departed from the guidelines and, if so, whether that departure was justified. The expenses of visitation are part of the parties' childrearing expenses that must be addressed as part of the parties' child support obligations.

In this case, the trial court erred in ordering retroactive child support to the Former Husband when he sought only custody and not a modification of child support as well. His request for modification of child support was made later, when he sought permanent custody. The relevant date for purposes of child support was not when he received custody of the child; it was when he filed a pleading seeking modification of child support. As well, the trial court imputed income to the Former Wife, but did not make specific findings regarding the Former Husband's income. The lack of findings regarding gross income prevented the appeals court from determining whether the trial court erred, so the order was reversed. Finally, the trial court erred in not factoring into the child support calculations the expenses of the Former Wife regarding visitation. The appeals court reversed and remanded for reconsideration.

Attorney’s Fees

The trial court did not make any findings of need and ability to pay, which are the primary considerations in such matters. The trial court was also required to make findings regarding the reasonable hourly rate and number of hour expended. While the trial court found the Former Husband's request for fees reasonable as to the time expended and hourly rate for fees, it failed to make any findings regarding the reasonable hourly rate. The appeals court affirmed the order denying the Former Wife's motion to vacate the first order, but reversed the first order due to error.

Case:       Lardizzone v. Lardizzone
Court:            Fourth District Court of Appeal.
Trial Judge: Laurie E. Buchanan.
Attorneys:
Issues:            Equitable Distribution.

Holding: Marital assets and liabilities include liabilities incurred during the marriage, individually or jointly. The cut-off date for determining which assets and liabilities are marital is the earliest of the date the parties enter into a valid separation agreement, such other date as may be expressly established by such agreement, or the date of the filing of a petition for dissolution of marriage. In the final judgment, the trial court found that the Former Husband incurred significant medical bills from an injury that occurred while the parties were married. It then characterized them as a marital liability for which the parties should be equally responsible. However, these findings were ambiguous as there were amounts of unpaid bills not yet determined. The appeals court reversed and remand for the clarification of the amount of unpaid medical bills for which he was personally liable on the cut-off date for determining marital liabilities.

Case:              Feliciano v. Munoz-Feliciano
Court:            Fourth District Court of Appeal.
Trial Judge: Nicholas Lopane.
Attorneys:      Catherine L. Roselli, Nancy A. Hass.
Issues:            Equitable Distribution.

Holding: The interpretation of a marital settlement agreement, as incorporated into the final judgment, is subject to de novo review. A marital settlement agreement is interpreted like any other contract. Courts are not to rewrite terms that are “clear and unambiguous. The plain meaning of the contract specified that payment from the Former Husband to the Former Wife would come from his share of the proceeds of the sale of the marital home. This agreement provided that the parties did not want any “deficit payments”. In this case, the trial court’s order contradicted the terms of the marital settlement agreement when it found the Former Wife was entitled to additional funds subsequent to the sale of the matrimonial home (a deficit payment) and entered judgment against the Former Husband in that amount. The order for a deficit payment constituted error. The appeals court reversed.

Case:              Perez v. Perez
Court:            Second District Court of Appeal.
Trial Judge: Michael J. Scionti.
Attorneys:      Allison M. Perry, Sema Yildirim.
Issues:            Child Support, Alimony.

Holding: Trial courts have great jurisdiction in making temporary relief awards, but it is improper for the trial court to fail to identify which share of the award is for child support and which intended to be alimony. The trial court must also make findings regarding the parties' incomes for purposes of applying the child support guidelines. In this case, the trial court erred as its order failed to differentiate between child support and alimony. It required the Former Husband to pay for rent on the Former Wife's apartment and her moving expenses but did not identify whether that was alimony or child support. The trial court also failed to make any findings regarding the parties' incomes. The appeals court reversed.

Case:         Corio v. Lopez
Court:            Fifth District Court of Appeal.
Trial Judge: Bob Leblanc.
Attorneys:      Michael B. Jones.
Issues:            Paternity, Venue.

Holding: A paternity action lies in the circuit court for the county in which either the plaintiff or defendant resides. When venue is proper in more than one county, a plaintiff may choose to institute suit in any proper place and the trial court must honor that choice. In seeking a change of venue, the defendant has the burden of proving that the plaintiff’s venue selection is improper; it is insufficient to merely establish that venue is proper elsewhere.

In this case, the trial court erred when, without a hearing, it granted the Plaintiff Father’s motion and transferred the action to another venue. He was deprived of due process when the trial court entered the order without affording him the opportunity to be heard on the motion. Notwithstanding, the trial court erred when it concluded that the venue needed to be changed as he had filed in the appropriate venue. The appeals court reversed.

Case:             Salazar v. Giraldo
Court:            Fifth District Court of Appeal.
Trial Judge: Mark J. Hill.
Attorneys:      Jeffrey A. Conner, Brian M. Monk.
Issues:            Equitable Distribution.

Holding: Florida Statutes (2015), holds that a party is not entitled to any credits or setoffs upon the sale of the marital home unless a settlement agreement, final judgment of dissolution of marriage, or final judgment equitably distributes assets or debts and provides that certain credits or setoffs are allowed or given at the time of the sale. In the absence of a settlement agreement involving the marital home, the court shall consider certain enumerated factors including alimony, exclusive possession and other awards and circumstances. Specifically, the amended final judgment was silent as to whether he was entitled to any credits or setoffs upon the sale. Nor did the record show whether the trial court considered the statutory factors it was required to assess prior to entering judgment. The appeals court reversed and remanded for proper consideration.

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Florida Divorce & Family Law Update for Week Ending August 30, 2015

September 1, 2015

Case:              Niekamp v. Niekamp
Court:            Second District Court of Appeal.
Trial Judge: John S. Carlin.
Attorneys:     Sam R. Assini, Matthew P. Irwin, Luis E. Insignares.
Issues:           Equitable Distribution, Time-sharing, Spousal Support, Child Support, Imputing Income, Attorney’s Fees.
Holding:         Parental Responsibility

Final judgment that provides sole parental responsibility to one party and denies contact to the other must set out for the parent who losing contact what must be done to reconnect with the children. An order that does not do so is deficient as it fails to advise the parent what is expected and prevents a successor judge from monitoring the parent's progress.

Marital Assets

When an asset is acquired during the marriage, it is presumed to be marital unless specifically established otherwise. In considering a business as a marital asset, enterprise goodwill is a distributable marital asset and personal goodwill is non-marital. When a trial court makes an equitable distribution award of a business, characterized as a marital asset, a value must be assigned to the asset.

Alimony

A twenty-two-year marriage is presumed to be long-term. This places a presumption in favor of alimony when warranted by one party's need and the other party's ability to pay. In determining an alimony award, a trial court shall consider the parties' respective physical and emotional conditions and employability.

Dissipation of Assets

When a spouse depletes marital assets during the pendency of dissolution proceedings to pay for support, living expenses and litigation expenses, it is error to include the assets in the equitable distribution scheme unless a there is a specific finding of intentional misconduct. Such a finding must be based on evidence showing that the marital funds were used for one party's own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.

In this case, the trial court erred in that:

a.     The final judgment failed to prescribe any schedule or benchmarks for re-establishing the Former Husband’s parenting of the children.

b.     It classified the Former Wife’s business as a non-marital asset, which although it depended heavily on her personal expertise and goodwill had tangible assets (bank accounts, instructional books and enterprise goodwill).

c.     It distributed a non-existent asset to the Former Husband (being money that he withdrew from retirement accounts spent on attorney's fees).

d.     It determined the Former Husband was voluntarily unemployed when there was evidence showing he was unemployed for mental health reasons.

e.     It imputed income to him in relation to child support and in its determination regarding payment of attorney’s fees.

The appeals court reversed and remanded for further proceedings.

Case:              Kyriacou v. Kyriacou
Court:            Second District Court of Appeal.
Trial Judge: John S. Carlin.
Attorneys:     Matthew S. Toll, Stephen N. McGuire, II, Robert B. Burandt.
Issues:            Equitable Distribution.

Holding: Florida Statutes prescribe terms for the distribution of marital assets. The presumption is the distribution should be equal, unless there is a justification otherwise based on the statutorily enumerated factors including the economic circumstances of the parties and any other equitable considerations. Wage earning ability is one such factor although disparate earning capacity, without more, cannot be the sole basis for unequal distribution. In this case, the trial court erred when it made an unequal equitable distribution award when the record contained no indication that it considered the statutory factors listed in doing so. Specifically, it focused on the parties’ earning ability and little else. The appeals court reversed as to equitable distribution and the valuation of certain marital assets.

Case:              Hooker v. Hooker
Court:            Fourth District Court of Appeal.
Trial Judge: Gregory M. Keyser.
Attorneys: Jane Kreusler-Walsh, Rebecca Mercier Vargas, Stephanie L. Serafin, Melinda P. Gamot, Susan G. Chopin.
Issues:           Equitable Distribution.

Holding:        Florida Statutes allow for unequal distribution of an asset when a trial court finds it is justified based on a non-exhaustive list of relevant factors including, among other things, the contributions of each spouse to the marriage; each spouse’s economic circumstances; desirability of retaining an asset; the contribution of each spouse to the acquisition and enhancement of an asset; and any other factors necessary to do equity and justice between the parties.

The statutes also require any distribution of marital assets to be supported by factual findings in the judgment based on competent substantial evidence in the record with reference to these statutory factors.

The fact that an asset is determined to be an interspousal gift and then characterized as a marital asset does not mandate that the asset be split equally if an unequal split is will create equity and justice between the parties. An interspousal gift is established by showing donative intent; delivery or possession of the gift; and surrender of dominion and control of the gift. The burden is on the party seeking to prove an interest in the property to show it was an interspousal gift on a preponderance of credible evidence. An appeals court reviews the determinations of a trial court in regards to a dissolution judgment for an abuse of discretion, and the review of the legal conclusions is de novo. When reversible error occurs with regard to valuation or distribution, the entire distribution scheme must be reversed and remanded to allow the trial court to ensure both parties receive equity and justice.

In this case, the trial court was correct in determining one property was gifted to the Former Wife. It erred, however, in determining the other property was an interspousal gift when the evidence did not show a clear and unmistakable intention on the part of the Former Husband to gift it.

With regard to the erroneous determination, there was no testimony that the Former Husband expressly stated or affirmatively acknowledged that the Former Wife had an interest in the property. The evidence only showed that the Former Wife believed that she had an interest because the family home and family business were situated on it. Specifically, the trial court erred in relying on evidence that:

a.     The Former Husband did not convey to the Former Wife that she did not have an interest in the properties;

b.     He did not contradict her belief that it was a gift; and

c.     She had made significant contributions to the property.

The trial court did not properly consider evidence that showed that the Former Wife’s name was kept off the title and the original mortgage for the property and off the corporation created by the Former Husband related to the property (formed solely in his name). The fact that he subsequently included the Former Wife’s name in the final sale of the property did not evidence donative intent. It simply showed the Former Husband ensuring the buyer of unburdened title.

As for the property that was gifted, the evidence provided sufficient donative intent to uphold the trial court’s determination. The Former Husband’s actions showed clear and unmistakable intent as the property was where the Former Wife desired to live; he told her the home was for both of them; they both contributed to furnishing the home; he provided her with keys to it; and she had unfettered access.

The appeals court reversed the amended final judgment as to the trial court’s determination that the Former Husband gifted an interest in the one property to the Former Wife and remanded for a recalculation of the entire equitable distribution.

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

July 8, 2015

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

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

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

Attorney’s Fees

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

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

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

Dependency/Visitation

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

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

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

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

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

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

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

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

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

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

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

Credit for Moneys Paid During Pendency

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

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

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

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

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

Valuation of Assets

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

Attorney’s Fees

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

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

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

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

Former Husband’s Military Retirement Pay

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

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

Florida Statutes provide that monthly income shall be imputed to an unemployed or underemployed parent if such unemployment or underemployment is found by the court to be voluntary on that parent’s part. A trial court must employ a two-step analysis when deciding whether to impute income to a former spouse. Firstly, the trial court must determine that termination of employment was voluntary. Secondly, the trial court must determine whether the individual’s subsequent unemployment or underemployment resulted from the pursuit of his or her own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received. Further, the former spouse claiming that income should be imputed to the unemployed or underemployed spouse bears the burden of showing both employability and the availability of jobs.

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

Matrimonial Home

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

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Florida Divorce & Family Law Update for Week Ending May 24, 2015

May 27, 2015

Case:              Williams v. Williams
Court:             First District Court of Appeal.
Trial Judge: Kelvin C. Wells.
Attorneys:      Jerome M. Novey, Shannon L. Novey, Christin F. Gonzalez, John F. Greene.
Issues:            Equitable Distribution.

Holding:        A trial court’s fair market value determination of marital assets must be supported by competent, substantial evidence. Equalization payments and asset distribution must be supported by competent, substantial evidence and trial court must provide sufficient findings and documentation to allow the appellate court meaningful review. In this case, the trial court erred as it did not base its equitable distribution of marital assets and an equalization payment to the Former Wife on competent and substantial evidence. The error was such that the appeals court could not conduct meaningful review of the judgment at issue. The appeals court reversed and remanded those parts of the judgment which were erroneous.

Case:              Bronstein v. Bronstein
Court:             Third District Court of Appeal.
Trial Judge: Scott M. Bernstein.
Attorneys:      Liliana Loebl, Daniel Kaplan, Daniels Kashtan, Lorne E. Berkeley.
Issues:            Parenting, Procedure.

Holding:        To obtain a writ of certiorari, there must exist: (1) a departure from the essential requirements of the law; (2) resulting in material injury; (3) that cannot be corrected on postjudgment appeal. Further, a motion for modification of timesharing must be given notice of the hearing, and present the relief being sought. Specifically, it should be based, and established, on competent and substantial evidence, a material change in circumstances. Such a motion must also involve the taking of evidence and any order that arises should include factual findings. If an order grants relief of an emergency nature, there should be evidence of a true emergency (ie: that the minor child involved is at risk of harm or will be removed from the jurisdiction.)

In this case, the trial court erred in ordering a modification of the parties’ parenting plan on application by the Former Husband insofar as although the Former Wife was given notice of (and attended) the hearing in this matter, the Former Husband’s motion did not seek a modification of the timesharing arrangement, and Former Wife was not on notice that such relief was within the scope of the motion or the hearing. Further, the motion was unverified; the motion did not seek emergency relief; and the trial court did not take any testimony or rely upon any sworn evidence. There was nothing provided by Former Husband to establish a true emergency or to suggest that Child was being threatened with physical harm or about to be improperly removed from the State of Florida. There was nothing presented even to establish the existence of a substantial change of circumstances such that Child’s temporary relocation to Colorado pending the evidentiary hearing was warranted and in Child’s best interest. The court’s Order, which contained no factual findings, was based solely on argument from counsel and the unverified allegations in the Former Husband’s Motion. In rendering its emergency Order upon this basis, and scheduling the evidentiary hearing some four months later, the court departed from the essential requirements of the law, causing irreparable harm that cannot be remedied on post-judgment appeal.

The appeals court granted the Former Wife’s petition, issued the writ of certiorari, and quashed the impugned order below, with instructions that minor child be returned to Former Wife’s care and remanded for further proceedings.

Case: Edgar v. Firuta
Court: Third District Court of Appeal.
Trial Judge: Luis M. Garcia.
Issues: Parenting, Attorney’s Fees.

Holding: Florida procedural Rules authorize a court to permit testimony at a civil hearing or trial by audio or video communication equipment by agreement of the parties or for good cause shown on written request of a party and reasonable notice to all other parties. In this case, the trial court erred in denying the Mother’s petition to telephonically appear at the hearing addressing timesharing and related matters, because the Father objected. The Mother, who was unemployed and had not received child support for the parties’ four children from the Father, lived in North Carolina, had made her petition to appear via technological communications, some 2 months after the procedural rules were amended to so allow such appearance. The court below was not, therefore, barred from considering the mother’s request to testify by telephone simply because the father objected but could have allowed the testimony for good cause shown. The appeals court reversed.

Case:              Badgley v. Sanchez
Court:             Fourth District Court of Appeal.
Trial Judge: Steven B. Feren.
Attorneys:      J. Scott Gunn, Sue-Ellen Kenny, Scott D. Glassman.
Issues:            Equitable Distribution, Alimony.

Holding:         Equitable Distribution
Florida Statutes (2013), governing distribution of marital assets and liabilities, provides that the trial court must begin with the premise that the distribution should be equal and requires consideration and factual findings in the judgment regarding nine specified factors in assessing whether an unequal distribution is warranted. In this case, trial court erred in awarding a 60/40 distribution which was premised solely on the parties’ income and which failed to contain the factual findings required by statute.

Alimony

Florida Statutes (2013), authorizes the award of alimony, based on consideration of a variety of factors that the court shall consider in determining the amount and type. A trial court errs where it fails to make the findings required by statute. In this case, the trial court erred as the final judgment regarding alimony failed to reference the statutory provision and the relevant factors, despite the fact that some of the findings could be fairly read to correlate with the relevant factors. The appeals court reversed on both above issues.

Case:              B.K. v. D.C.F.
Court:             Fourth District Court of Appeal.
Trial Judge: Hope Bristol.
Attorneys:      Lori D. Shelby, Pamela Jo Bondi, Carolyn Schwarz.
Issues:            Termination.

Holding:      Florida statute provides incarceration as a ground for termination. Specifically, under statute, 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. In addition, the trial court must find that termination is in the manifest best interests of the child. In making this determination, Florida statute sets forth a list of non-exclusive relevant factors, including, but not limited to: (1) any suitable permanent custody arrangement with a relative; (2) the ability the parent to provide the child with food, clothing, medical care or other remedial care; (3) the capacity of the parent or parents to care for the child to the extent that the child’s safety, well-being, and physical, mental, and emotional health will not be endangered upon the child’s return home; and others. Finally, the Department must show, by clear and convincing evidence, that termination is the least restrictive means to prevent serious harm to the child. In this case, the trial court did not err as it considered the relevant factors and made the required factual findings. In so doing, the court found termination of parental rights was the least restrictive means of protecting the minor child from harm because the child had not seen the Father since tiny infancy and did not know him. The appeals court affirmed but remanded to the trial court to consider access between the Father and the minor child.

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