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 4 Weeks Ending July 17, 2016

July 19, 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:             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 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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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 for 4 Weeks Ending October 25, 2015

October 28, 2015

Case:              Lalonde v. Lalonde
Court:            Fourth District Court of Appeal.
Trial Judge: Arthur M. Birken.
Attorneys:
Issues:            Procedure.

Holding:     Under Florida Rules of Procedure, the requiring thirty days’ notice is mandatory and applicable to final hearings as well as to jury trials. In this case, the trial court erred in proceeding with the hearing and rendering final judgment when the Former Husband did not have at least thirty days’ advance notice. The appeals court remanded with instructions to the circuit court to set a new final hearing, giving the parties at least 30 days’ notice.

Case:              Miggins v. Miggins
Court:            Fourth District Court of Appeal.
Trial Judge: Krista Marx.
Attorneys:     Doreen Truner Inkeles, Adam M. Zborowski.
Issues:            Equitable Distribution.

Holding:     A party seeking equitable distribution of a military Survivor Benefit Plan shall provide evidence concerning assertions as to the Plan including the cost of maintaining it and how equitable distribution or alimony would be affected. In this case, the trial court was incorrect when it found that the Former Husband’s military Survivor Benefit Plan was not marital property subject to equitable distribution. However, it was correct in its treatment of the Plan. Specifically, the Former Wife presented no evidence concerning the cost of maintaining the Plan and how equitable distribution or alimony would be affected. The appeals court reversed on the issue and remanded for the entering of a second amended final judgment containing language referring to the “existence of a supportive relationship” pursuant to Florida Statutes (2014).

Case:              Hofschneider v. Hofschneider
Court:            Second District Court of Appeal.
Trial Judge: Richard A. Nielsen.
Attorneys:     Jeremy T. Simons.
Issues:            Contempt.

Holding:      Pre-judgment civil contempt orders are properly reviewed by certiorari. In this case, as the issue involved review of a contempt order by the trial court, the appeals court converted the matter to a petition for writ of certiorari. It was, however, declined as the Appellant / Applicant did not demonstrate suffering a material injury that could not be corrected on post-judgment appeal.

Case:              B.R. v. D.C.F.
Court:            Second District Court of Appeal.
Trial Judge: Sonny Scaff.
Attorneys:     Donald K. Rudser, Ward L. Metzger, Dave Krupski.
Issues:            Dependency.

Holding:      An amendment or modification of an order or judgment in an immaterial, insubstantial way does not re-start the clock to file an appeal. Even substantial or material modifications in an amended judgment do not provide grounds sufficient to appeal issues adversely decided in the earlier judgment. In this case, the appeal was filed in excess of the thirty-days from the date the orders were rendered, one of which contained immaterial changes. The immaterial changes did not re-start the time for proper filing of an appeal.

Case:              J.B.-L v. D.C.F.
Court:            Second District Court of Appeal.
Trial Judge: Suzanne Bass.
Attorneys:     Robert W. Keep, Jr., Joshua Goldsborough, Niki Guy, Ward L. Metzger, Wendie Michelle Cooper.
Issues:            Dependency.

Holding:      A trial court order finding a child dependent but withholding an adjudication of dependency is properly reviewable by the appeals court pursuant to the Florida Rules of Appellate Procedure. In this case, the trial court did not err in adjudicating only two of seven minor children, dependent but finding all seven of them dependent. The fact that adjudication hearings were conducted on only two matters was not an error. The appeals court affirmed.

Case:              Shah v. Shah
Court:            Third District Court of Appeal.
Trial Judge: Mindy S. Glazer.
Attorneys: Bryant Miller Olive, Elizabeth W. Neiberger, Clayton D. Simmons, Andrew Rier, Daniel Tibbitt.
Issues:            Process.

Holding: Due process requires proper notice and an opportunity to be heard. In this case, the trial court erred when it noticed the hearing on the petition for dissolution of marriage as a status conference but, instead, conducted a final hearing and entered final judgment. The appeals court reversed.

Case:              De Leon v. Collazo
Court:            Third District Court of Appeal.
Trial Judge:   Leon M Firtel.
Attorneys:      David W. Macey, Lindsey M. Alter, Jessica B. Reilly.
Issues:            Permanent Injunction for Protection, Process.

Holding:      Due process serves as a vehicle to ensure fair treatment through the proper administration of justice. It requires that litigants be given proper notice and a full and fair opportunity to be heard. To be sufficient, notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must convey the required information, afford a reasonable time for those interested to make their appearance, and indicate the witnesses and the evidence expected.

In this case, the trial court erred when, at the final hearing, it permitted the Applicant, over objection, to testify to substantial and significant acts of domestic violence that were never pleaded in the petition. Nor was the Respondent put on notice that these additional acts would form a part of the allegations relied upon. This violated the Respondent’s due process rights. The appeals court vacated the permanent injunction and remanded for a new final hearing.

Case:              Gromet v. Jensen
Court:            Third District Court of Appeal.
Trial Judge:   Pedro P. Echarte.
Attorneys:     George R. Baise Jr., Brian C. Tackenberg, Robin Buckner, Robert F. Kohlman.
Issues:            Equitable Distribution.

Holding: A trial court’s determination that an asset is marital or non-marital involves mixed questions of law and fact. Although an appeals court defers to the trial court’s factual findings if they are supported by competent, substantial evidence, it will review the trial court’s legal conclusions de novo.

Non-marital assets include assets acquired separately by either party by non-interspousal gift, bequest, devise, or descent, and asset acquired in exchange for such assets. Non-marital assets may lose their non-marital character and become marital assets where they have been commingled with marital assets. This is especially true with respect to money because money is fungible, and once commingled it loses its separate character.

Florida Statutes (2014), provide that marital assets include the enhancement in value and appreciation of non-marital assets resulting from the efforts of either party during the marriage. Where a former spouse seeks to establish that marital efforts were utilized to enhance the value of the other party’s non-marital business, he or she also has the burden of proving that assertion and the value, based on competent, substantial evidence.

In this case, the trial court erred by treating the Former Husband’s accounts as marital assets subject to equitable distribution, when the accounts were entirely funded with an inheritance he received; the Former Wife failed to present competent, substantial evidence that marital funds were deposited into or commingled with any of the Former Husband’s accounts; and the evidence showed that, despite actively managing his accounts, they decreased in value. The appeals court reversed the equitable distribution portion of the final judgment.

Case:              Russell v. Pasik
Court:            Second District Court of Appeal.
Trial Judge:   Marc B. Gilner.
Attorneys:    Paul F. Grondahl, Cristina Alonso, Jessica Zagier Wallace, Michael P. Sampson, Ashley Filimon, Elliot H. Scherker, Brigid F. Cech Samole, Jay A. Yagoda, Luis E. Insignares, Elizabeth Lynn Littrell, Paolo Annino, Brion Blackwelder, Michael J. Dale, Nancy Dowd, Shani M. King, Barbara Bennett Woodhouse.
Issues:            Time-sharing.

Holding:      To be entitled to certiorari relief, a party must demonstrate: (1) a departure from the essential requirements of the law; (2) resulting in material injury for the remainder of the case; (3) that cannot be corrected on post-judgment appeal. The second and third elements are jurisdictional and thus must be evaluated first. Typically, certiorari will not be granted from a denial of a motion to dismiss because there is not a material injury that cannot be corrected on post-judgment appeal.

A psychological parent is not recognized in law. Only natural and adoptive parents have a legal duty to support minor children. When there is no biological connection between a petitioner and a child and that nonparent is seeking to establish legal rights to the child, there is no clear constitutional interest in being a parent.

In this case, the trial court erred as it failed to conduct the proper analysis to determine standing. Further in order to prevent irreparable harm, the trial court must fully assess that issue. In denying the motion to dismiss, the trial court merely opined that a cause of action arose based on the facts set out in the petition. However, the petition showed that it was legally impossible for the Respondent to establish standing to petition the trial court for timesharing as she asserted she was a de facto or psychological parent and not a biological parent. As a cause of action does not exist in the absence of standing, the trial court departed from the essential requirements of the law by not dismissing the petition for timesharing. Additionally, the trial court improperly addressed the Applicant / Biological Parent’s constitutional privacy interest in the raising of her children, including determining with whom they are allowed to spend time. This would enable the State's interference with a constitutional right—here, the right to privacy, and an injury that cannot be corrected on post-judgment appeal. The appeals court granted the petition for certiorari.

Case:              Rosenblum v. Rosenblum
Court:            First District Court of Appeal.
Trial Judge: W. Gregg McCaulie.
Attorneys:     Geraldine C. Hartin.
Issues:            Child Support.

Holding:      A party is entitled to have his or her motion to modify child support or alimony heard and resolved before, or simultaneously with, a hearing on another party’s later-filed motion for contempt. In this case, the trial court erred in proceeding only on a motion for contempt filed by the Former Wife, when the Former Husband had filed a prior motion for modification of child support, despite his repeatedly objecting to proceeding without first or simultaneously resolving the issues raised in his earlier-filed motion. The appeals court reversed and remanded for further proceedings on the Former Husband’s motion to modify child support.

Case:              Taylor v. Taylor
Court:            Second District Court of Appeal.
Trial Judge: Jalal A. Harb.
Attorneys:     Jean M. Henne, Karie L. Sanoba.
Issues:            Alimony.

Holding:      Generally, trial courts may not consider future or anticipated events in making alimony awards, due to the lack of an evidentiary basis or the uncertainty surrounding such future events. Under statute, when determining alimony, a trial court considers: (1) a party's need for support; (2) the other party's ability to pay; (3) the type of alimony or the types of alimony appropriate in the case; and (4) the amount of alimony to award.

The first two considerations involve questions of fact to be supported by competent, substantial evidence. Once need and ability are determined, the court determines which type, or types, of alimony are appropriate. The court can award (1) bridge-the gap alimony; (2) rehabilitative alimony; (3) durational alimony; (4) permanent alimony or a combination. Statute limits a trial court’s discretion in this regard by making the court consider also the duration of the marriage. The trial court must demonstrate on the record or in its order that it has applied the correct law when selecting its choice of alimony. Under Florida statute, there lies a rebuttable presumption that a marriage of seventeen years or greater is a long-term marriage, for which permanent alimony may be awarded upon consideration of the statutory factors. There is no special burden of proof applicable to the award of permanent alimony in a long-term marriage, however, the court must include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties. Durational alimony may be awarded when permanent periodic alimony is inappropriate or if there is no ongoing need for support on a permanent basis. The length of an award of durational alimony can be extended only under exceptional circumstances. There may be need to award a combination of the two.

In this case, the trial court erred in that it did not expressly find that permanent periodic alimony was inappropriate. The trial court erred further in that the judgment failed to contain the necessary findings to support durational alimony. The findings were so deficient as to hinder appellate review. The appeals court reversed and remanded with special instructions.

Case:              Horrisberger, Jr. v. Horrisberger N/K/A Abbe
Court:            Second District Court of Appeal.
Trial Judge: Laurel Moore Lee.
Attorneys:     Kathy C. George.
Issues:            Child Support.

Holding: A trial court errs in determining child support based on a comparison of the gross income of one party to the net income of the other. In this case, the trial court erred in considering separate worksheets filed by the parties, which submitted respectively, figures which represented gross income net income. The appeals court reversed and remanded.

Case:              Cozzo v. Cozzo
Court:            Third District Court of Appeal.
Trial Judge: Barbara Areces.
Attorneys:     Kimberly L. Boldt, Teresa Abood Hoffman, Maggie A. Berryman.
Issues:            Attorney’s Fees.

Holding:        Florida law requires a party seeking attorney’s fees to provide proof detailing the nature and extent of the services performed and expert testimony regarding the reasonableness of the fees. Where a party has provided sufficient, admissible proof of these two components, a trial court will not further mandate direct testimony from the attorney who performed the services. In this case, the trial court failed to provide a record which reveals sufficient evidence to support an award of attorney’s fees. The appeals court reversed the trial court’s order denying the Former Wife’s motion for attorney’s fees, and remanded for entry of an award of fees in accordance with the evidence presented.

Case:              Bush v. Henney
Court:            Fourth District Court of Appeal.
Trial Judge: Laura M. Watson.
Attorneys:     Troy W. Klein.
Issues:            Domestic Injunction.

Holding:      Under Florida statute, a party to a domestic violence injunction may move at any time to modify or dissolve the injunction. No specific allegations are required. If the scenario underlying the injunction no longer exists so that the continuation of the injunction would serve no valid purpose, then the injunction should be modified or dissolved. In this case, the trial court erred in denying the Appellant’s motion to dissolve an injunction from approximately 14 years ago when he had never violated it, had never tried to contact the Appellee and he testified that he has no desire or intention of doing so. The appeals court remanded.

Case:              Malave v. Malave et al
Court:            Fifth District Court of Appeal.
Trial Judge: Mark J. Hill.
Attorneys:     William Glenn Roy, III, Tyler J. Chasez, Nichole J. Segal, Andrew A. Harris.
Issues:            Equitable Distribution, Procedure.

Holding:       Ancillary relief is generally available in dissolution of marriage cases. However, the ancillary relief must relate to matters which are personal and proper to the divorce action itself. The common thread between them is a distinct relationship linking the parties and the subject of the litigation. A circuit court does not lack jurisdiction simply because a case is filed or assigned to the wrong division within the circuit court. All circuit court judges have the same jurisdiction within their respective circuits. The filing of an action in the wrong division should be remedied by reassignment to the correct division as opposed to a dismissal of the action.

In this case, the family (trial) court erred as it found that it lacked jurisdiction over the divorce action because the Former Husband died before a judgment dissolving the marriage was entered and dismissed, with prejudice, the Former Wife’s ancillary petition. The parties were in the midst of divorce proceedings when the Former Husband and the parties’ children were tragically killed in a car accident. The divorce petition was abated by his death. Subsequently, the Former Wife discovered that he had allegedly made a substantial number of property and money transfers to his relatives shortly before his death. She deduced that the disposal of marital assets was intentional and that other parties, including his lawyer, had assisted in the allegedly fraudulent transfers. She moved to reopen the abated divorce case and to file an ancillary petition naming as defendants the parties whom she believed had assisted him, including his lawyer. The family court granted the motion. The parties named did not file a response. The clerk entered a default against the non-lawyer while the Former Husband’s previous lawyer filed a motion to dismiss the ancillary petition asserting that the family court lost jurisdiction over the divorce case when the husband died. The family court agreed and dismissed the ancillary petition. The appeals court reversed and found that the dismissal with prejudice was improvidently entered, and directed the circuit court to transfer the ancillary petition from its family division to its civil division. The Former Wife’s attempt to sue the Former Husband’s former lawyer for fraud in the divorce action was misplaced, as no judgment had been entered dissolving the marriage at the time of the Former Husband's death. Therefore, the divorce action ended when the Former Husband died. The Former Wife’s ancillary petition itself was not ancillary to the divorce because the Former Husband’s former lawyer was not a party to the divorce litigation. However, the family court should have transferred the matter to the civil division of the circuit court. By dismissing the action with prejudice the trial court completely denied the Former Wife the opportunity to raise her claims anywhere. The appeals court reversed the dismissal with prejudice of the ancillary petition and remanded for further proceedings in the appropriate division of the circuit court.

Case:              Wells v. Whitfield
Court:            First District Court of Appeal.
Trial Judge: E. McRae Mathis.
Attorneys:     Seth Schwartz, Eric Lawson, Valarie Linnen.
Issues:            Child Support.

Holding:      In awarding child support, a trial court must make findings of fact based on record evidence in support. Meaningful appellate review is facilitated by such findings. In this case, while the trial court did not err (abuse of discretion) by refusing to allow the Father (Payor) to present additional evidence on rehearing, it erred when the amended final judgment did not justify the amount of the child support obligation. Specifically, the trial court properly found the Father failed to show that certain monies should be excluded from his income for child support purposes but failed to state in the amended final judgment how much of that money was part of his income for child support calculations. The appeals court could not meaningfully review the child support award to determine whether it is within the guidelines. The appeals court reversed and remanded for the trial court to make specific findings on point.

Case:              Nicolas v. Blanc
Court:            Third District Court of Appeal.
Trial Judge: John Schlesinger.
Attorneys:   Hegel Laurent, Yolande Henry Van Dam, Barbara Green.
Issues:            Parenting, Relocation.

Holding: In considering relocation applications, a trial court must properly consider and apply the enumerated factors under Florida Statutes (2014) to the record evidence. It must also articulate findings of fact based on such. In this case, the trial court did not err as it properly considered and applied the requisite and applicable factors under Florida Statutes (2014), and articulated findings of fact, supported by the competent substantial evidence presented. The appeals court affirmed the trial court’s order granting relocation.

Case:              Kelley v. Kelley
Court:            Fourth District Court of Appeal.
Trial Judge: Timothy P. McCarthy.
Attorneys:     Troy William Klein, Bernice Marie Kelley.
Issues:            Equitable Distribution, Alimony, Child Support.

Holding: Equitable Distribution

In distributing marital assets and liabilities, the presumption is an equal division, however, the court may order an unequal distribution based on factors enumerated under Florida Statutes. Unequal distribution must be based on record evidence. In this case the trial court erred in awarding the Former Wife a greater share of the marital assets when it had already awarded her a balancing payment from the Former Husband in an effort to equalize the parties’ respective shares of the marital assets.

Alimony

An award of alimony will usually not be reversed on appeal absent an abuse of discretion. Under Florida Statutes (2014), the trial court must be consider the list of factors set out including any other consideration necessary to do justice between the parties. Failure to do so is reversible error. In this case the trial court erred in failing to make the requisite factual findings in support of the alimony award to Former Wife. Specifically, it failed to identify or make findings of fact relative to: the standard of living established during the marriage; the contributions of each party to the marriage; the tax treatment and consequences of the alimony award; and all sources of income available to either party. Without these findings, the appeals court was unable to make a proper determination as to the appropriateness of durational alimony. The appeals court reversed and remanded.

Case:              B.L. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: Michael Heisey.
Attorneys:     Antony P. Ryan, Richard G. Bartmon, Karla Perkins.
Issues:            Dependency.

Holding:       An adjudication of dependency based entirely, or largely, on inadmissible hearsay, must be reversed. In this case, the trial court erred in determining dependency on the basis of hearsay allegations of domestic violence by the Father. The allegations came through the Mother’s statements as conveyed through the investigating officers. The appeals court reversed.

Case:              Hutchinson v. Hutchinson
Court:            First District Court of Appeal.
Trial Judge: Monica J. Brasington
Attorneys:   Stephen K. Johnson, Emily A. Snider, Jonathan P. Culver.
Issues:            Alimony, Attorney’s Fees.

Holding:      A trial court’s award of attorney’s fees is governed by statute. Such awards are to ensure that both parties will have a similar ability to obtain competent legal counsel. The general standard for awarding attorney’s fees and costs is the requesting spouse’s financial need and the other spouse’s ability to pay. Awards of attorney’s fees are reviewed for an abuse of discretion. Where marital property has been equitably distributed and the parties’ incomes have been equalized through an alimony award, a trial court abuses its discretion by awarding attorney’s fees. In this case, the trial court erred in awarding attorney’s fees to the Former Wife after it had equitably distributed the marital property and further awarded her alimony, thereby equalizing the parties’ incomes. The parties were in substantially the same financial positions and equally able to pay the fees and costs. The appeals court reversed the award of attorney’s fees and costs.

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Florida Divorce & Family Law Update for Two Weeks Ending September 13, 2015

September 15, 2015

Case:              Hahamovitch v. Hahamovitch
Court:            Florida Supreme Court.
Trial Judge: Martin Colin
Attorneys:   Jeanne Brady, Frank Brady, Robert Sidweber, Karent Weintraub, Jane Kreusler-Walsh, Rebecca Vargas, Stephanie Serafin, Joel Weissman, and Sarah Saull.
Issues:            Prenuptial Agreements.

Holding: In short, the Court approved of the Fourth District's prior opinion, and determined that a general waiver of all marital claims and property rights in a prenuptial agreement is sufficient to waive any interest in property created during a marriage due to marital efforts despite there not being a specific waiver of marital claims related to a spouse's earnings, assets acquired with those earnings, or the enhanced value of the other spouse's property resulting from marital labor or funds. The decision resolves a conflict that existed between the Fourth District (no specific waiver required) and the Second and Third Districts (which required a specific waiver).

Case:              Airsman v. Airsman
Court:            Second District Court of Appeal.
Trial Judge: Joseph G. Foster.
Attorneys:     Cynthia B. Hall.
Issues:           Change of Name.

Holding: The test for changing a child's name is whether it is in the child's best interests or is necessary for the welfare of the child. A child's surname should remain unchanged absent evidence on point. The party seeking to change a child's name bears the burden of proof. Conclusory assertions are insufficient. In this case the trial court erred as the change of surname was not supported by competent, substantial evidence that the child's best interests were served, or that the welfare of the child was at risk. The appeals court reversed and remanded.

Case: Rutan v. Rutan
Court: Second District Court of Appeal.
Trial Judge: Peter Ramsberger.
Attorneys: Matthew R. McLain, Jane H. Grossman.
Issues: Alimony.

Holding: A trial court may award alimony upon sufficient evidence and factual findings regarding the respective parties’ need and ability to pay. The burden to show financial need and the former spouse's ability to pay lies with the party requesting alimony. In this case, the trial court erred in awarding alimony as it failed to make findings sufficient to allow meaningful appellate review, particularly regarding the Former Husband's income. The Former Wife failed to meet her burden of proving the Former Husband's ability to pay. The appeals court reversed.

Case:              Wolfson v. Wolfson
Court:            Third District Court of Appeal.
Trial Judge: Stanford Blake.
Attorneys:     Sandy T. Fox, Karen B. Weintraub, Robert W. Sidweber.
Issues:           Parenting, Certiorari.

Holding: Child custody determinations in a judgment of dissolution of marriage may be varied only if a movant can prove modification is required by a substantial and material change in circumstances, and that the child’s best interest will be promoted by such a modification. Generally, both parties must be given notice and opportunity to be heard prior to any modification, unless there is an actual, demonstrated emergency situation, such as where a child is threatened with physical harm or is about to be improperly removed from the state. Even in such instances, every reasonable effort should be made to ensure both parties have an opportunity to be heard. In this case, the trial court erred as it departed from the essential requirements of law when it entered an order granting an emergency request for temporary supervised visitation without providing both parties an opportunity to be heard. The appeals court granted a petition for certiorari with respect to the order and remanded for further proceedings.

Case:              Gentile v. Gentile
Court:            Fourth District Court of Appeal.
Trial Judge: Timothy L. Bailey.
Attorneys:     Stephen H. Butter, Jason H. Haber, Caryn Goldenberg Carvo.
Issues:           Equitable Distribution.

Holding: A trial court should adhere to the terms of a settlement agreement in making an equitable distribution of assets, including provisions as to matters for which mediation is sought. A trial court should conduct an evidentiary hearing if there is dispute. In this case, the trial court erred in granting the Former Wife’s motion and ordering certain real property (a marital asset) be divided pursuant to appraisals for mediation proceedings when the record did not show that property division was subject to mediation. The parties had a settlement agreement that may have addressed the matter and upon which they may need to rely. The appeals court reversed and remanded to determine whether the settlement agreement contemplated resolution and proper division and valuation of the property.

Case:              Corcoran v. Corcoran
Court:            Fifth District Court of Appeal.
Trial Judge: John M. Alexander.
Attorneys:    Leonard R. Ross, Sara E. Glover, Deborah L. Greene, Andrea C. Jevic.
Issues:           Alimony, Attorney’s Fees, Equitable Distribution, Parenting.

Holding: A trial court shall make findings of fact as to modification of alimony. When determining attorney’s fees, a trial court considers the parties’ respective financial situations. A trial court must indicate what evidence it relied on for its findings regarding shared parental responsibilities and contempt of court. After a dissolution of marriage, the parties are equally responsible for all payments necessary to maintain their ownership of the marital property until its sale, including mortgage payments, taxes, insurance and repairs.

In this case, the trial court erred as it:

a.     reduced the Former Wife’s monthly in the absence of specific findings of fact.
b.     awarded attorney’s fees in the absence of specific findings as to the parties’ financial need and ability to pay.
c.     failed to identify the evidence it relied on in making an order regarding shared parental responsibilities and the Former Wife being contempt of court.
d.     failed to hold the Former Wife solely responsible only for repairs to the marital home or, in the alternative, to indicate an evidentiary basis to hold her responsible for all future repairs.

The appeals court reversed and remanded for reconsideration.

Case:              Bailey v. Bailey
Court:            Fourth District Court of Appeal.
Trial Judge: Nicholas R. Lopane
Attorneys:     John E. Schwencke and Adam M. Zborowski of Nugent Zborowski & Bruce, Michael J. Alman, Jamie D. Alman.
Issues:            Time-sharing, Certiorari, Notice.
Holding:   Certiorari
Certiorari will lie if an order compels production of confidential records and requires compulsory examination pursuant to Florida Rules of Civil Procedure. The issue on certiorari review is whether the order departs from the essential requirements of law and results in material injury which cannot be adequately remedied on appeal.

Notice

Proper notice of a motion must be given to opposing parties failing which the resulting order may be reviewed. Twenty-four hours’ notice of a hearing on a motion may be inadequate.

Evaluations and Release of Records

Motions for the compulsory production of confidential records and the appointment of a social investigator may be subject to certiorari review. Parties to such motions must be provided adequate notice. In this case, the trial court improperly ordered the appointment of a social investigator in regards to the Father, and improperly compelled him to produce confidential records and undergo a compulsory examination. The appeals court quashed these portions of the order as the Father was not provided adequate prior notice of the motion, which was filed on the same day as the hearing. Psychotherapist-patient privilege may be asserted to preclude compulsory production of certain mental health records. It would be open to the trial court to make a determination on point.

The granting or denying of an order for a psychological evaluation is a discretionary act and may be reversed only upon a conclusion that no judge could reasonably have ordered such an evaluation. Such an order may be upheld if it is based on factual findings supported by record evidence. A trial court may order a new psychiatric or psychological examination instead of than ordering disclosure of existing mental health records as this balances the court’s need to determine the parents’ mental health as it relates to the best interest of the child, and the duty maintain the psychotherapist-patient privilege. In this case, the trial court made factual findings based on the record, which put the Father’s mental condition in controversy and provided good cause to compel his evaluation.

A trial court may consider, but is not bound by, the testimony or recommendations of a social investigator. In this case, the trial court erred in tying the Father’s time-sharing with the minor children “subject to” the investigator’s recommendations. This was an improper delegation of the court’s authority to the investigator. The appeals court quashed this portion of the order.

Case:              Vaelizadeh v. Hossaini
Court:            Fourth District Court of Appeal.
Trial Judge: Dale C. Cohen.
Attorneys:     John J. Shahady, John M. Ross, Steven D. Miller.
Issues:            Custody, Relocation.

Holding: In determining a petition for relocation, the trial court must concern itself as to whether the relocation is in the best interests of the child. An appellate court reviews relocation determinations for abuse of discretion; however, the question of whether the trial court properly applied the relocation statute is a matter of law, reviewed de novo. Child custody issues should be determined upon child’s best interests, and such issues should not be foreclosed on technical pleading defaults. Florida statutes (2014) provide that, unless the parties have entered into agreement, the parent seeking relocation must file and serve a petition to relocate. The pleadings must conform to statutory requirements including that it be signed under oath or affirmation under penalty of perjury and include a specific statement (in prescribed typographic form) set out under statute, providing notice and direction to the parent upon whom the petition is served. Procedurally, if the parent upon whom the petition has been properly served fails to respond in a timely and proper manner, it is presumed that the relocation is in the best interest of the child and that the relocation should be allowed. The trial court shall, absent good cause, enter an order specifying that the order is entered as a result of the failure to respond to the petition. Additional procedural matters are as prescribed by statute.

In this case, the trial court erred in entering the relocation judgment when good cause existed to preclude the Mother’s relocation despite the Father’s untimely response to the Mother’s petition. Good cause included that:

a.             Despite filing a late response, the Father had a pending petition to domesticate and modify an out-of-state order to seek residential custody before the Mother filed her relocation petition.
b.             He had filed a motion contesting the petition raising allegations requiring hearing.
c.             His untimely response was not due to wilful inaction but his attorney’s unavailability while tending to an ill family member.
d.             An order should not be rendered based on defaults which do not consider the child’s best interests.
e.             The relocation judgment was inconsistent with the trial court’s oral ruling and written order from earlier that day stating that an evidentiary hearing to determine best interests would be set.

The appeals court reversed and remanded for an evidentiary hearing.

Case:              Berg v. Young
Court:            Fourth District Court of Appeal.
Trial Judge: David E. French.
Attorneys:     Nancy W. Gregoire, Howard S. Friedman, Andrew A. Harris, Curtis L. Witters.
Issues:            Equitable Distribution, Attorney’s Fees.

Holding: The passive appreciation of a non-marital asset is a marital asset and subject to division where marital funds, or the efforts of either party, contributed to the appreciation. Where a prenuptial agreement does not address the right to enhanced value of a non-marital asset, the value is subject to equitable distribution. If a separate asset is unencumbered and no marital funds are used to finance its acquisition, improvement, or maintenance, then no portion of its value should be included in the marital estate (save for improvements arising from marital labor). A final judgment may be affirmed pursuant to the tipsy coachman doctrine because the trial court reached the right result, but for the wrong reasons. A trial court’s interpretation of a prenuptial agreement is reviewed de novo, as such agreements are governed by the law of contracts. So, too, is its legal conclusion that an asset is marital or non-marital. The standard of review of a trial court’s determination of equitable distribution is abuse of discretion.

Florida statutes determine the review and award of attorney’s fees in family law matters and seek to ensure that both parties will have a similar ability to obtain competent legal counsel. It can be an abuse of discretion to grant only a partial attorney’s fee award where there is a substantial disparity between the parties’ incomes. However, the trial court cannot award fees based solely on disparity of income. A trial court must make specific findings of fact, either at the hearing or in the written judgment, supporting its determination of entitlement to an award of attorney’s fees and the factors that justify the specific amount awarded. Prenuptial agreement provisions awarding attorney’s fees and costs to the prevailing party in pieces of litigation concerning the validity and enforceability such an agreement are enforceable. A trial court’s ruling on attorneys’ fees in family law actions is reviewed for an abuse of discretion.

In this case, although the trial court erred in its interpretation of the prenuptial agreement (in that it failed to consider the pertinent title presumption), it properly declined to award the Former Wife any interest in the Former Husband’s company. Specifically, the trial court relied on competent, substantial evidence that the Former Husband’s corporation (acquired via a bank account and moneys which, pursuant to the agreement, were non-marital) and appreciation in its value were non-marital and not subject to equitable distribution. The trial court erred as to its award of attorney’s fees as it failed to make findings of fact on point. Further, the prenuptial agreement set out that the party seeking to avoid its terms would bear all the attorney’s fees and costs incurred by the other. As the Former Wife sought, unsuccessfully, to void the agreement the Former Husband was entitled to an award of fees against her. The appeals court reversed and remanded on the issue of fees.

Case:          Suarez v. Orta
Court:            Third District Court of Appeal.
Trial Judge: John Schlesinger.
Attorneys:      Leonardo G. Renaud.
Issues:            Child Support.

Holding: Florida courts emphasize substance over form. Generally, if a motion is improperly titled, a court should focus on its substance. Pleadings by pro se litigants should only be defined by their function. In this case, the trial court erred in declining to consider the Former Husband’s motion notwithstanding that he had intended it as a timely-filed exception to a report, pursuant to Florida Family Law Rules of Procedure (“Rules”). The motion, filed on the same day the report and recommendation was entered, was filed within the ten-day window prescribed by the Rules. The appeals court reversed and remanded with instructions for the trial court to treat his pro se motion as a timely-filed exception pursuant to the Rules.

Case:              Temares v. Temares
Court:            Third District Court of Appeal.
Trial Judge: Rosa C. Figarola.
Attorneys:     Ronald H. Kauffman.
Issues:            Time-sharing, Certiorari.

Holding: Under Florida Rules of Civil Procedure, compulsory psychological evaluation or drug testing is authorized only when the party submitting the request has good cause for the examination regarding matters in controversy. The “in controversy” and “good cause” requirements entail an affirmative showing by the movant that each condition as to which the examination is sought is genuinely in controversy and that good cause exists for ordering each particular examination. Conclusory allegations, alone, are insufficient to demonstrate either “in controversy” or “good cause” for submission to examination. A court may order testing, sua sponte, on sufficient record evidence.

In this case, the trial court erred in ordering testing in the absence of any showing by the movant (in any pleading or otherwise at the hearing) that the opposing Party’s mental condition was in controversy. Nor did the movant establish any good cause. Finally, there was nothing in the record to support a sua sponte order requiring testing. The appeals court (granted Petitioner’s motion for certiorari and) quashed the trial court order for testing.

Case:              R.T. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge: Martin Zilber.
Attorneys:   Sanford Rockowitz, Karla Perkins, Laura E. Lawson.
Issues:            Termination.

Holding: Florida statute governs termination of parental rights based on abandonment. A trial court asked to order termination shall consider relevant statutory requirements with a view to finding that termination is the least restrictive means to protect the child and is in the best interests of the child. In this case, the trial court did not err in ordering termination because it considered requisite provisions and record evidence and found that, although the Father had maintained telephone contact with the child, the record firmly showed that he was unable to care for, support, and parent the child; he had no suitable family members to care for the child; it was in the child’s best interest to be raised with her siblings, with whom she has bonded, and to achieve permanency with a pre-adoptive family that wished to adopt all four siblings. The appeals court affirmed.

Case:              D.C.F. v. N.H.
Court:            Third District Court of Appeal.
Trial Judge: Martin Zilber.
Attorneys:      Karla Perkins, Sharon Wolling.
Issues:            Dependency, Certiorari.

Holding: Certiorari may be granted where a trial court’s actions exceed its judicial authority by encroaching on the powers of the executive branch by ordering it to take some action not permitted by law. The DCF bears the burden of demonstrating that a trial court departed from the essential requirements of law, thereby causing irreparable injury which cannot be adequately remedied on appeal after final judgment. Florida statutes (2015) authorize the amendment of a case plan by the trial court or by agreement of all parties in certain limited circumstances.

In this case, the trial court erred, and the appeals court quashed a portion of its order relieving the Father from complying with an earlier case plan. Specifically, violence in the presence of the child contradicted the claim that the Father no longer needed services and no competent, substantial evidence supported amending the case plan.

Case:              Dorworth v. Dorworth
Court:            Fifth District Court of Appeal.
Trial Judge: George B. Turner.
Attorneys:     John N. Bogdanoff, Shannon McLin, Stephen M. Brewer.
Issues:            Alimony, Equitable Distribution.

Holding: Equitable Distribution
The valuation of an asset or debt in connection with equitable distribution is generally reviewed for an abuse of discretion. Valuation not supported by competent substantial evidence cannot stand. Settlement agreements are governed by the rules of contract interpretation. The trial court's interpretation of a contract in a dissolution proceeding is a matter of law subject to de novo review. 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 erred, and abused its discretion, when it utilized the incorrect figure for a certain debt (a judgment resulting from a defunct land deal and which the parties agreed was a marital asset). In its final judgment, the trial court concluded the value of the asset in the absence of any reasoning. The trial court then equitably distributed the parties’ assets and liabilities and made an associated award of lump sum alimony to the Former Wife. As the trial court erred in calculations on point and as alimony flowed, the appeals court remanded for reconsideration and recalculation.

Durational Alimony

An alimony award should not exceed a Former Spouse's need. An order awarding alimony in excess of the Recipient Spouse's needs will be reversed as an abuse of discretion, absent special circumstances. In this case, the trial court erred when it listed specific items of expense (such as student loan expenses) in the final judgment while it determined Former Wife's monthly needs. The calculations of the Former Wife's expenses and income were unclear. The appeals court remanded for reconsideration of the amount of durational alimony to be paid based upon the Former Wife's needs and Former Husband's ability to pay.

Lump Sum Alimony

The trial court must also reconsider the entire distribution plan because each division and distribution of a marital asset or liability is interrelated in order to achieve a fair result to both parties. Similarly, the trial court should reconsider alimony awards and other orders in the final judgment that were based on the incorrect debt amount. In this case, the trial court erred in awarding Former Wife a specific amount of lump sum alimony, which was coordinated with her equitable distribution awards. The appeals court remanded for reconsideration of lump sum alimony in all the associated circumstances.

Case:              A.D., Jr. v. D.C.F.
Court:            Fifth District Court of Appeal.
Trial Judge: Elizabeth A. Morris.
Attorneys:     Richard J. D'Amico, Ward L. Metzger, Thomas Wade Young.
Issues:            Termination, Abandonment.

Holding: Florida statutes provide that a child is abandoned, or that abandonment occurs, when the parent or legal custodian of a child or the caregiver, while being able, has made no significant contribution to the child's care and maintenance or has failed to establish or maintain a substantial and positive relationship with the child, or both.

In this case, the trial court erred in determining that the Father abandoned the child when there was no clear and convincing evidence to support such a finding. While the Father made little effort to comply with the case plan until the petition for termination of parental rights was filed, following that he partially completed his required steps. DCF conceded he had substantially complied. Further, though the evidence showed he was volatile, this is not sufficient to justify the termination of parental rights. Additionally, while the Father had not provided financial support for the child, DCF had not established his ability to do so. Moreover, he had remained in contact with the child, who resided with the Father’s sister. The appeals court reversed and remanded.

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