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 Update for Week Ending September 25, 2016

September 28, 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:             Flynn v. McCraney & McCraney
Court:            First District Court of Appeal.
Trial Judge: Jan Shackelford.
Attorneys:     Autumn O. Beck.
Issues:           Paternity, Time-sharing.

Holding: A child born to an intact marriage cannot be the subject of a paternity proceeding brought by a biological father. It is a fundamental error for a trial court to grant relief pursuant to a nonexistent cause of action. In this case, the trial court did not err in dismissing Mr. Flynn’s petition the minor child was born to the intact marriage of Mr. and Mrs. McCraney. The appeals court affirmed.

Case:             Browne v. Blanton-Browne
Court:            First District Court of Appeal.
Trial Judge:
Attorneys:     Shelley L. Thibodeau.
Issues:           Certiorari, Child Support, Attorney’s Fees.

Holding: Under Florida Family Law Rules of Procedure, a notice of hearing on a motion for civil contempt related to family support matters must specify the time and place of the hearing and contain specific language. If an alleged contemnor fails to appear for the hearing after proper notice, the hearing is to proceed simply to allow the movant to make a prima facie case of contempt in accordance with the Rules. If they meet this burden, the court is required to set a reasonable purge amount based on the individual circumstances of the parties. The court may issue a writ of bodily attachment to have the alleged contemnor brought in to answer the motion. After the court hears from both parties, it may grant or deny the motion for contempt. If the order grants the motion, it must find that the contemnor had the present ability to pay support and willfully failed to do so. The court must make a finding that the contemnor has the present ability to comply with the purge provision and state the factual basis for that finding.

In this case, the trial court erred when it failed to follow Florida Family Law Rules of Procedure when it found the Former Husband in contempt for failure to pay his child support arrearage and the attorneys’ fees. The trial court failed to warn the Former Husband that his failure to appear at the initial hearing for contempt could result in a writ authorizing his arrest. The appeals court granted the petition and quashed the order of contempt and related writ of bodily attachment.

Case:            Z.R. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge: Cindy S. Lederman.
Attorneys:     Albert W. Guffanti, Rosemarie Farrell, Laura J. Lee (Sanford).
Issues:           Termination.

Holding: A trial court record must reflect whether a party’s parental rights have been terminated. Under Florida Statutes, the termination of the rights of one parent must generally be accompanied by the termination of the rights of the other. In this case, the trial court erred because, while the record supportedtermination of the Mother’s rights, the record did not reflect whether the Fathers’ parental rights were also terminated. Nor did the trial court’s order discuss the factors under Florida Statutes, which limit the court’s power to terminate the rights of one parent without terminating the rights of the other. Given this, and the additional fact that the children for adoption, the appeals court affirmed in part, reversed in part and remanded.

Case:            Koscher v. Koscher
Court:            Fourth District Court of Appeal.
Trial Judge: Tim Bailey.
Attorneys:     Terrence P. O’Connor, Michelle Ralat Brinner.
Issues:           Imputation, Alimony, Attorney’s Fees.

Holding: Imputation

A trial court’s can impute income to a Former Spouse it is shown he or she is earning less than he could, based on a showing that he or she could earn more if they exercised best efforts, based on competent substantial evidence. The trial court engages in a two-step process. First, the court must conclude that the termination of income was voluntary. If so, the court must determine whether the unemployment resulted from the Former Spouse’s pursuit of his or her own interests or through inadequate efforts to find employment at a level of pay equal to or better than that formerly received. A Former Spouse bears the obligation to be diligent in finding replacement income even if he or she is initially involuntarily unemployed; is physically and mentally capable and otherwise employable. severance for over a year). Then, the Former Spouse claiming income should be imputed to the unemployed or underemployed spouse bears the burden of showing both employability and that jobs are available. The trial court must set forth factual findings as to the probable and potential earnings level, source of imputed and actual income, and adjustments to income. The trial court may only impute a level of income supported by the evidence of employment potential and probable earnings based on history, qualifications, and prevailing wages.

In this case the trial court erred in its analysis of the issue of imputing income to the Former Husband. The evidence showed he was involuntarily terminated from his last job, his continued unemployment was voluntary, and he did not make any diligent efforts to seek comparable employment. The trial court should have performed the necessary steps to calculate an actual value for the imputed income. The appeals court reversed and remanded for the trial court to take additional evidence to determine the amount of income it should impute to the Former Husband.

Alimony

This Court reviews an alimony award with the abuse of discretion standard. Where the record does not contain substantial, competent evidence to support the trial court’s findings regarding the amount of alimony awarded, the appellate court will reverse. When one party is entitled to permanent periodic alimony but the other spouse has no current ability to pay, the trial court should award a nominal sum of permanent periodic alimony, which will give the court jurisdiction to reconsider the award should the parties’ financial circumstances change. The purpose of imputed income is to determine the amount that a spouse is able to earn, above and beyond what the spouse actually earns. Nominal alimony is therefore inappropriate in a situation where the paying spouse has the ability to pay more if he/she was to earn the amount the court has determined could be earned through diligent efforts. The appeals court reversed and remanded. Upon remand, the trial court is to impute income to the Former Husband and revisit the amount of permanent periodic alimony to be awarded to the Former Wife, commencing with the date of initial dissolution of marriage.

Attorney’s Fees

The court may, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees . . . to the other party of maintaining or defending any proceeding under this chapter. A trial court may also consider other factors, including the parties’ behaviors and earning potential. In deciding whether an award of attorney’s fees is justified, a trial court may impute income to a voluntarily unemployed or voluntarily underemployed party. The trial court denied the Former Wife’s request for attorneys’ fees because it found the parties to be equal based on their net worth and income. However, there was no evidence of her having any income and the Former Husband conceded she was unemployable for medical reasons. On the other hand, the evidence presented showed that the husband was an experienced business executive with significant earning potential. Therefore, the parties were not in similar circumstances. The appeals court reversed and remanded.

About DivorceCourtAppeals.com and Bruce Law Firm, P.A.

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 paysreferral 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 August 28, 2016

September 1, 2016

Case:             Steele, Jr. v. Prince
Court:            First District Court of Appeal.
Trial Judge: Jonathan E. Sjostrom.
Attorneys: Joseph Robert Boyd, Jr..
Issues:           Timesharing.

Holding: The trial court’s interpretation of a mediation agreement is reviewed according to the de novo review standard. The interpretation of such agreements is subject to contract law principles. The language in a mediation agreement should be given its plain meaning and not be disturbed unless found to be ambiguous or in need of clarification, modification, or interpretation. In this case, the trial court erred in its interpretation of a mediation agreement governing the Father’s timesharing rights. The magistrate failed to give the language of the mediation agreement its plain meaning. By its terms, the agreement made the third weekend of the month a default period for timesharing, regardless of whether notice is provided. The appeals court reversed.

Case:             Rogers v. Wiggins
Court:            Second District Court of Appeal.
Trial Judge: Jack Helinger.
Attorneys:     John A. Smitten, Jane H. Grossman.
Issues:           Attorney’s Fees.

Holding: Florida Statutes permit a trial court to order a party in a child custody case to pay a reasonable amount for attorney's fees after considering the financial resources of both parties. The financial resources of the parties are the primary factor to be considered. However, other relevant factors to be considered include the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation is brought or maintained primarily to harass (or whether a defense is raised mainly to frustrate or stall); and the existence and course of prior or pending litigation. In this case, the trial court erred in its consideration of the statutory factors regarding modification of child custody. Specifically, its order made a finding that the Mother had the ability to pay the fee award, but the court's factual finding that the mother had no income and no assets. The record contradicted the court’s conclusion that she had the ability to pay. The appeals court reversed.

Case:             Shaver v. Shaver
Court:            Second District Court of Appeal.
Trial Judge: Susan Gardner.
Attorneys:     Jane H. Grossman, Allison M. Perry.
Issues:           Alimony, Equitable Distribution.

Holding: Alimony

Four steps are involved in a trial court's alimony decision-making process: the trial court must determine: (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. An order or award must be reversed where a final judgment is inconsistent with a trial court's oral pronouncement. In this case, the trial court erred as the written judgment was inconsistent with its oral pronouncement. Specifically, the final judgment awarded the Former Wife one year of rehabilitative alimony followed by four years of durational alimony but the oral judgment awarded one year of rehabilitative alimony followed by five years of durational alimony. Further, the written judgment failed to include a provision requiring the Former Husband to pay for the Former Wife's education expenses when the trial court orally ruled that he needed to pay for the rest of her education. The trial court failed to rely on competent, substantial evidence in making its determination and further declined to state a specific amount of alimony awarded and asked the Former Wife to come up with possible scenarios to show her need. The appeals court reversed.

Equitable Distribution

An award of equitable distribution is reversed and remanded to the lower court because of inconsistencies on the face of the judgment and because certain of the findings are not supported by the record. In this case, the trial court adopted the Former Wife's proposed equitable distribution schedule and found that her valuation of the marital assets was supported by competent, substantial evidence. But, like the alimony scenario, the trial court left it to the parties to submit a proposed equitable distribution scheme. It made no findings of fact based on competent, substantial evidence in awarding a distribution of assets and making findings that certain assets should be excluded from equitable distribution altogether. The appeals court reversed and remanded.

Case:             J.C.O. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge: Martin Zilber.
Attorneys:     Eugene F. Zenobi, Kevin Coyle Colbert, Karla Perkins, Laura J. Lee (Sanford).
Issues:           Dependency.

Holding: Where an adjudication of dependency is based entirely on inadmissible hearsay, or where the trial court necessarily relied on inadmissible hearsay, it must be reversed. Parents have a right to counsel. In this case, the trial court erred when it declined the Father, who lives in Nicaragua, a right to fair notice and to properly present evidence. Specifically, the Father argued he was not properly served with notice of the proceedings. While in hearing, the trial court had the Father’s legal counsel removed from the courtroom, and continued to hear argument from the Department on the procedural (service) issue, relying on the Case Manager’s testimony that she heard the Father admit he had received the notice, to make its decision. In the circumstances the Father was not allowed to appear and the evidence of the Case Manager was inadmissible hearsay. The appeals court reversed.

Case:             Ridings v. Ridings
Court:            Fourth District Court of Appeal.
Trial Judge: Jessica Ticktin.
Attorneys:     Irene Annunziata, Angelica Del Vecchio.
Issues:           Alimony, Equitable Distribution, Attorney’s Fees.

Holding: When distributing marital liabilities, a trial court should include both identification of the liabilities and designation of which Former Spouse shall be responsible for payment of the liability. It is reversible error for a trial court to simply indicate that marital liabilities are to be equally divided without identifying each specific liability and without identifying which spouse is responsible for each. In this case, the trial court erred as the final judgment awarded a distribution of marital liabilities which failed to identify the liability and which Former Spouse was responsible for paying it. The appeals court reversed.

Case:             Mitchell v. Mitchell
Court:            Fourth District Court of Appeal.
Trial Judge: Tim Bailey.
Attorneys:     Jason B. Blank, Michael J. Dunleavy.
Issues:           Injunction for Protection Against Domestic Violence.

Holding: A trial court abuses its discretion by entering a domestic violence injunction when the ruling is not supported by competent, substantial evidence. Florida Statutes (2015), create a cause of action for an injunction for protection against domestic violence on behalf of a family or household member who has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence. The danger feared must be imminent and the rationale for the fear must be objectively reasonable. General harassment does not suffice. Nor does verbal violence, mental instability, a bad temper, depressive and suicidal statements, angry messages, vague actions, or general conditional future threats without overt action implying imminence. In determining whether the petitioner's fear is reasonable, the trial court must consider the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole. In this case, the trial court mischaracterized the law. Specifically, in granting the Former Wife’s request for an injunction, the trial court explained that the question is whether there is there behavior on the part of one party that “scares” the other. on your part that scares her?” The trial court then found credible the Former Wife’s testimony that the Former Husband’s text messages were scaring her. However, the trial court’s characterization of the law was incorrect. The question should be whether the Former Wife’s fear was objectively reasonable. Further, the trial court was required to conduct a close examination of the record, the text messages, and the surrounding context, to make a determination on the facts whether it was objectively reasonable for the Former Wife to have a fear for her own safety. On the fact, the Former Husband’s text messages contained no overt (or implicit) threats to the Former Wife. The appeals court reversed.

Case:             Colino v. Colino
Court:            Fifth District Court of Appeal.
Trial Judge: Michael S. Orfinger.
Attorneys:     Brett Hartley, Donald Appignani.
Issues:           Equitable Distribution, Alimony.

Holding: Equitable Distribution

A trial court’s interpretation of a prenuptial agreement is reviewed de novo, as such agreements are governed by the law of contracts. Where a contract is clear and unambiguous, it must be enforced pursuant to its plain language. In this case, the trial court misinterpreted the parties’ prenuptial agreement when it awarded to the Former Wife certain real property purchased by the Former Husband, transferred to the Former Wife which she later transferred back to the Former Husband by quitclaim. Specifically, the prenuptial agreement permitted her, as an owner of separate property, to dispose of such property by gift, sale or transfer. When the Former Wife obtained the property by transfer, it became her separate property. She then transferred it to the Former Husband and the series of transactions was consistent with the terms of the prenuptial agreement. She transferred the property to the Former Husband, it belonged to him and remained his separate property when he filed his petition for dissolution of marriage. Furthermore, the prenuptial agreement expressly provided that neither party would make any claim or demand on the separate property of the other party. Since neither party attempted to vacate or rescind the prenuptial agreement, the trial court was obligated to enforce its clear terms and distribute the property to Former Husband. The appeals court reversed.

Alimony

Trial courts, in dissolution of marriage cases, possess broad discretionary authority with various remedies available to do equity and justice between the parties. In this case, the trial court erred when, while it recognized that, based upon the length of the parties’ marriage and the terms of the prenuptial agreement, an award of alimony was permissible. Further, the trial court found that Former Wife demonstrated a need for alimony but elected not to award alimony to her due, in part, to its equitable distribution of the parties’ assets. Given the appeals court’s decision to reverse on the equitable distribution, the appeals court directed the trial court to reconsider and receive evidence on support.

About DivorceCourtAppeals.com and Bruce Law Firm, P.A.

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 29, 2016

May 31, 2016

Case:              Shulstad v. Shulstad
Court:            Second District Court of Appeal.
Trial Judge: Ashley B. Moody.
Attorneys:      Mark A. Neumaier, Bradley J. McDonald, Matthew E. Thatcher.
Issues:            Alimony.

Holding: A trial court may require a party to secure child support and alimony payments with life insurance coverage. However, the record should contain evidence of the payor's insurability, the cost of the proposed insurance, and the payor's ability to afford the insurance. In this case, the trial court erred in ordering the Former Husband/Payor to maintain life insurance coverage in the absence of a sufficient evidentiary basis. The appeals court reversed.

Case:              F.G. v. D.C.F
Court:            Third District Court of Appeal.
Trial Judge: Maria I. Sampedro-Iglesia.
Attorneys:      Ilene Herscher, Karla Perkins, Laura J. Lee (Sanford).
Issues:            Dependency.

Holding: The courts and legal counsel must try to identify related proceedings in order to avoid inconsistent results and facilitate judicial efficiency. In this case two separate courts granted inconsistent orders as to dependency when there was no recognition of the interconnectedness of the matters. The appeals court reversed.

Case:              Fye v. Bennett
Court:            Fourth District Court of Appeal.
Trial Judge: John L. Phillips.
Attorneys:      Siobhan Helene Shea.
Issues:            Injunction Against Stalking.

Holding: Under Florida statutes, a person who willfully, maliciously and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking. In this case, the trial court erred in ordering an injunction despite the Former Boyfriend agreeing to enter into a permanent injunction against stalking as part of criminal proceedings regarding his conduct. The appeals court reversed.

Case:              Valdes v. Valdes
Court:            Fourth District Court of Appeal.
Trial Judge: Dennis D. Bailey.
Attorneys:
Issues:            Timesharing.

Holding: A trial court must rely on prior agreements and evidence in making an order as to timesharing. In this case, the trial court erred in its calculation of timesharing by granting an award inconsistent with the prior Parenting Plan without competent record evidence. The appeals court reversed and remanded.

Case:              Maciekowich v. Maciekowich
Court:            Fourth District Court of Appeal.
Trial Judge: Edward A. Garrison.
Attorneys:      David S. Fabrikant, Richard L. Dedell.
Issues:            Alimony.

Holding: When determining permanent periodic alimony a trial court shall consider the needs of one spouse and the other spouse’s ability to pay. In this case, the trial the court erred in awarding the Former Wife nominal annual alimony because it held she did not provide evidence of need. However, the Former Husband’s evidence made out the requirements of the respective parties’ need and ability to pay. The appeals court reversed.

Case:             Stark v. Stark
Court:            Fifth District Court of Appeal.
Trial Judge: John D. Galluzzo.
Attorneys:      Marcia K. Lippincott, Patrick A. McGee.
Issues:            Alimony.

Holding: Durational alimony is an intermediate form of alimony between bridge-the-gap and permanent alimony. It is used following a marriage of long duration if there is no ongoing need for support on a permanent basis. In this case, the the trial court erred in awarding the Former Wife a combination of durational and permanent alimony rather than solely awarding permanent alimony. Specifically, the evidence failed to demonstrate that the Former Wife’s need or the Former Husband’s ability to pay would be materially different at the end of the durational alimony period than it was at the time the amended final judgment was entered. The appeals court reversed.

About DivorceCourtAppeals.com and Bruce Law Firm, P.A.

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.