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 22, 2016

May 26, 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:             Watford v. Watford
Court:            Fourth District Court of Appeal.
Trial Judge: Krista Marx.
Attorneys:      J. Harley Toufanian, Joseph J. Mancini.
Issues:            Alimony, Equitable Distribution, Attorney’s Fees.

Holding: A final judgment awarding alimony must include findings of fact to support the award, based on the listed statutory factors. Net income is used to calculate alimony. In ordering attorney’s fees, a trial court shall make findings as to the parties’ respective ability to pay, the reasonableness of the hourly rate and the hours expended. In this case, the trial court erred as the final judgment on alimony did not include factual findings regarding the statutory factors and the trial court erroneously relied on the Former Husband’s gross income, not his net income, in calculating alimony. Nor was there evidence that the Former Husband’s alleged dissipation of assets resulted from intentional misconduct. Finally, while the trial court found the Former Wife had the need for attorney’s fees, it did not make any findings as to Former Husband’s ability to pay, or the reasonableness of the hourly rate and hours expended. The appeals court reversed.

Case:             Henry v. Henry
Court:            Fourth District Court of Appeal.
Trial Judge: Jeffrey Dana Gillen.
Attorneys:      Bruce S. Rosenwater, Anne M. Lynch. Eddie Stephens.
Issues:            Alimony, Equitable Distribution, Attorney’s Fees.

Holding: Alimony and child support awards must be based on the parties’ net income, properly calculated. In this case, the trial court erred in making awards of child support, alimony, retroactive child support and retroactive alimony based on miscalculated incomes of the parties. The trial court also erred in calculating retroactive child support using a 60/40 timesharing split (which applies to prospective child support despite) the evidence showing a 50/50 split during the retroactive period. Nor did the trial court make specific findings of the Former Wife’s need and the Former Husband’s ability to pay during the relevant period. The appeals court reversed.

Case:            Gonzalez v. Walker
Court:            Fourth District Court of Appeal.
Trial Judge: Amy L. Smith.
Attorneys:      Leonel R. Plasencia, Curt Sanchez, Robin Bresky, Jonathan Mann.
Issues:            Paternity, Timesharing, Child Support.

Holding: A party is entitled to adequate notice of proceedings and the claims faced. Competent evidence is required to show that the parties would not be able to work together effectively for their child’s best interests. In this case, the trial court erred in granting ultimate decision-making authority to the Former Husband when: (a) the pleadings did not provide the Former Wife adequate notice of what was being claimed; and (b) there was no evidence of a continuing pattern of hostility showing that the parties would not be able to work together for their child’s best interests.

Case:             N.H. v. D.C.F.
Court:            Second District Court of Appeal.
Trial Judge: Lee A. Schreiber.
Attorneys:      Michael Mummert, Laura J. Lee, Meredith K. Hall.
Issues:            Certiorari.

Holding:         Under Florida Statutes (2015), a trial court may shelter a child if probable cause exists to believe that the child has been abused, neglected, abandoned, or is in imminent danger of illness or injury as a result of abuse, neglect, or abandonment. The connection between the unexplained abuse of a child and the substantial risk of significant harm to a sibling can warrant the removal of both children, even though one child has yet to be abused. In this case, the trial court erred when it found probable cause to shelter only one of four minor children (siblings) based on the parents' alleged physical abuse, concluding that the other siblings were not at risk of potential harm. Specifically, the trial court departed from the essential requirements of law when it failed to shelter similarly situated siblings and required actual evidence of actual physical harm. The appeals court reversed.

Case:            Lucas v. Lucas
Court:            Fifth District Court of Appeal.
Trial Judge: David B. Beck.
Attorneys:      Corrine A. Bylund, Armistead W. Ellis, Jr..
Issues:            Equitable Distribution, Alimony.

Holding: In determining eligibility and liability for alimony, the trial court shall first make a specific factual determination as to the respective parties’ need and ability to pay. In this case, the trial court erred in failing to make specific factual findings as to the Former Wife’s claim. It further erred by incorrectly valuing the Former Wife’s IRA account (the distribution should reflect the actual value of the account) and distributed the parties’ credit-card debts as marital debt without making a specific finding as to the value. The appeals court reversed and remanded.

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

Florida Divorce and Family Law Update for Week Ending May 15, 2016

May 16, 2016

Case:             Bellant v. Bellant
Court:            Second District Court of Appeal.
Trial Judge: Edward Nicholas.
Attorneys:     Susan J. Silverman, Melton H. Little, Peter J. Mackey, Drew F. Chesanek.
Issues:            Attorney’s Fees.

Holding: In this case the trial court erred in awarding attorney’s fees to the Former Husband based, in part, on its finding of bad faith conduct by the Former Wife and her legal counsel absent it explaining what constituted said bad faith. The appeals court remanded with directions.

Case:            B.B.S. et al v. Rodriguez-Murguia
Court:            Fourth District Court of Appeal.
Trial Judge: Barbara W. Bronis.
Attorneys:      Charles E. Jarrell.
Issues:            Maternity.

Holding: Florida Statutes (2014), provide that circuit and county courts have jurisdiction to declare rights, status, and other equitable or legal relations. No action or procedure is open to objection on the ground that a declaratory judgment is demanded. The United States Supreme Court and the Florida Supreme Court have recognized the fundamental rights of parents. In this case, the trial court erred in dismissing the Children’s cause of action to determine maternity when it should have allowed them to do so by way of a declaratory action under Florida Statutes. The Mother signed their birth certificates using a false name because she was not in the country legally. When she tried to amend the birth certificates to correctly identify herself as their mother, each state where the Children were born would not authorize the change without a court order. The Children brought the action to establish maternity in conjunction with a request for child support and a parenting plan. The trial court was required to adjudicate to determination of existing rights or duties. The appeals court reversed and remanded.

Case:            Steinman v. Steinman
Court:            Fourth District Court of Appeal.
Trial Judge: Howard K. Coates, Jr..
Attorneys:     Amy D. Shield, Roger Levine, Charles D. Jamieson.
Issues:           Contempt.

Holding: A trial court cannot preclude the custodial parent of one religious faith from actively influencing the training of the child inconsistently with the different religious faith of the other parent. Nor can it require the custodial parent to raise the child in the other parent’s faith and cooperate with the other parent in effecting the result. In this case, the trial court erred in holding the Mother in contempt for unilaterally changing the religious care of the children when, in fact, the Father’s principal concern was with afterschool care and the Father led no evidence that the children were harmed by exposure to the Mother’s religious beliefs or practices. The appeals court reversed.

Case:             D.H. v. T.N.L. and Guardian ad litem
Court:            Fourth District Court of Appeal.
Trial Judge: Gary L. Sweet.
Attorneys:      Lori D. Shelby, Linda L. Weiksnar.
Issues:            Contempt.

Holding: In order to find an individual in contempt, the trial court must find that the contemnor had the ability to comply with the previous court order. Florida Rules of Juvenile Procedure codifies this and sets out detailed procedures that must be followed before a person can be found in civil contempt. An order finding a person in contempt must contain specific findings, including a finding that the alleged contemnor had the ability to comply with a prior court order and willfully failed to do so. In this case, the trial court erred in finding the Father in contempt without finding that he had the present ability to pay the amounts ordered. While this issue was not preserved, the court departed from the essential requirements of law and committed fundamental error. The appeals court reversed and remanded.

Case:             Moore v. Yahr
Court:            Fourth District Court of Appeal.
Trial Judge: Timothy L. Bailey.
Attorneys:      Gerald W. Adams, Catherine L. Roselli.
Issues:            Paternity.

Holding: When restricting or preventing timesharing, a trial court must set forth any specific requirements or standards to remove or alleviate the restrictions. Failure to do so is error. The court must give the parent the key to reconnecting with his or her children. The costs of supervision should be considered as part of the child support calculations. In this case, the trial court erred as it failed to set forth specific steps by which the Father could establish unsupervised timesharing and improperly ordered him responsible for the costs of supervision. The appeals court reversed.

Case:              Songur v. Songur
Court:            Fifth District Court of Appeal.
Trial Judge: Mike Murphy.
Attorneys:     Christie L. Mitchell.
Issues:            Parenting, Time-sharing, Contempt.

Holding: A trial court must make specific findings as to educational decisions and parents’ ultimate responsibilities. Imputations of income must be made on evidence and explanation for related findings. In this case, the trial court erroneously granted ultimate decision-making authority over a child’s education to the Former Husband absent a finding that shared parental responsibility would be detrimental to the child or that ultimate responsibility over the child’s education was in the child’s best interest. The trial court also erred in imputing income to both parents without any evidentiary basis and without explanation for these findings. The appeals court reversed and remanded

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Florida Divorce and Family Law Update for Week Ending May 1, 2016

May 3, 2016

Case:              Ketcher v. Ketcher
Court:            First District Court of Appeal.
Trial Judge: Linda F. McCallum.
Attorneys:     Brian P. North, Summer N. Boyd.
Issues:            Procedure.

Holding: An alimony award must be supported by sufficient findings to demonstrate that the payee spouse has a need for the amount of alimony awarded and the payer spouse has the ability to pay that amount. A trial court has the authority to require a payor spouse to obtain and maintain a life insurance policy naming the payee spouse as the beneficiary in order to secure his or her obligation to pay a marital debt. The amount of the life insurance policy must be related to the extent of the obligation being secured. In this case, the trial court erred regarding:

1. the adequacy of the alimony award because the final judgment contained insufficient findings to permit meaningful review of the award; and

2. the requirement that the Former Husband obtain life insurance to secure his obligation as part of the equitable distribution scheme because the amount of life insurance ordered exceeded the amount of his liability, without explanation. The appeals court reversed.

Case:              Minda v. Minda
Court:            Second District Court of Appeal.
Trial Judge: Walt D. Logan, Thomas Ramsberger.
Attorneys:     Jonathan Jonasz, Cristiana Esteves, Sarah M. Chaves.
Issues:            Alimony.

Holding: A motion for relief from judgment should not be summarily dismissed without an evidentiary hearing unless the allegations and affidavits fail to allege colorable entitlement to relief. In this case, the trial court erred in dismissing the Former Wife's motion to vacate a default judgment as it was facially sufficient and alleged a colorable entitlement to relief. The appeals court reverse and remanded for a formal evidentiary hearing on the motion.

Case:              D.M.J. v. A.T.J.
Court:            Second District Court of Appeal.
Trial Judge: Martha J. Cook.
Attorneys:
Issues:            Parenting, Child Support, Time-sharing.

Holding: A time-sharing schedule may not be modified without a substantial, material, and unanticipated change in circumstances and a finding that the modification is in the best interests of the child. The petitioning party has the burden of proof. Relocation is not a substantial change if the move is not a significant distance away from the child's current location. A child’s best interests must be considered by the court. A 45-mile move has been found to not constitute a substantial change warranting modification.

In this case, the trial court erred as it failed to consider the statutory best interests of the child in entering the orders on appeal. It did not find that a substantial change, regarding the Father’s relocation, occurred. Nor did it indicate that its findings and modification of the time-sharing plan were based upon the Father's move. The appeals court reversed and remanded for an evidentiary hearing to consider the statutory best interests of the child.

Case:              Dillion v. Dept. of Revenue (Child Support)
Court:            Fourth District Court of Appeal.
Trial Judge:
Attorneys:      Pamela Jo Bondi, Toni C. Bernstein.
Issues:            Child Support.

Holding: A noncustodial parent’s child support obligation is calculated based on the financial affidavits submitted by the parties along with any other information available to the Department. Where a child spends a substantial amount of time with the noncustodial parent under a timesharing arrangement, a reduction in that parent’s child support obligation is mandated. If an agency enters an order on undisputed evidence, the order must be upheld by this court if it is supported by competent, substantial evidence. In this case, the Department erred when it failed to conduct an evidentiary hearing because the financial affidavits submitted by the parties presented disputed facts which affected the calculation of the Father’s support obligation. The appeals court vacated and remanded.

Case:              Turk v. Turk
Court:            Fourth District Court of Appeal.
Trial Judge: Charles E. Burton.
Attorneys:     Craig A. Boudreau, Gary D. Weiner, Scott M. Weiss.
Issues:            Contempt, Time-sharing.

Holding: A person cannot be held in contempt for failure to comply with something that a judicial order does not say. In this case, the trial court erred in granting the Mother’s motion for contempt alleging that the Father knowingly and intentionally withheld the children from her for one day in violation of a specific provision of their time-sharing agreement. The noted provision, however, on reasonable interpretation, did not require him to permit visitation on the date he allegedly violated the agreement. The appeals court reversed.

Case:              Mills v. Mills
Court:            Fifth District Court of Appeal.
Trial Judge: Morgan Laur Reinman.
Attorneys:     Amy D. Shield, Roger Levine, Philip Fougerousse.
Issues:            Equitable Distribution.

Holding: Liabilities incurred by forgery or unauthorized signature of the other spouse's name are nonmarital liabilities and are the sole burden of the spouse committing the fraud unless the liability was subsequently ratified by the other spouse. In this case, the trial court erred in concluding that the Former Husband made numerous investments on behalf of the parties which were profitable in the past despite his admission that he forged her signature on a loan (and there was no evidence to suggest she ratified the loan). The loan was a nonmarital liability of Former Husband. However, the loan was paid off using marital funds from his retirement accounts. Therefore, the trial court should have classified a portion of the loss as the nonmarital liability of Former Husband. The appeals court reversed and remanded.

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