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 Update for Week Ending September 11, 2016

September 14, 2016

Case:              Cherry v. Viker
Court:            First District Court of Appeal.
Trial Judge: Robert Wheeler.
Attorneys:     M. Stephen Stanfield, Emilian “Ian” Bucataru.
Issues:           Attorney’s Fees.

Holding: An award of attorney’s fees pursuant to Florida Statutes must be based on the need of the party seeking the fees and the ability of the other party to pay the fees, based on competent substantial evidence. Further, an award of temporary fees must be properly based on evidence to support the award because a temporary award does not create vested rights. In this case, the trial court erred as its order for temporary attorney’s fees to the Former Wife was not supported by competent, substantial evidence. Specifically, the trial court’s findings regarding the parties’ financial resources were not supported by evidence (only argument of counsel was presented at the hearing below). The trial court could not have properly determined the need of the party seeking fees or the ability of the other party to pay. The appeals court reversed.

Case:              Bork v. Bork
Court:            First District Court of Appeal.
Trial Judge: David Rimmer.
Attorneys:     Ross A. Keene, Brian P. North.
Issues:           Alimony.

Holding: In making an alimony award, a trial court’s award must be based on proper findings concerning the respective incomes of the parties, which must be based on proper record evidence. In this case, the trial court erred as it calculated the alimony award based on the Former Husband’s net income after it had been reduced by the amount of a prior, temporary alimony award to the Former Wife. The record therefore reflected a clear error in the financial information utilized by the trial court in setting the permanent alimony amount. Since the temporary alimony award was in place only until the final hearing, the Former Husband’s net monthly income should have been adjusted and increased by the temporary award amount before calculating the Former Wife’s alimony amount. The trial court’s finding concerning the former husband’s net monthly income was not supported by the evidence. The appeals court reversed and remanded.

Case:              Trainor v. Trainor
Court:            Fourth District Court of Appeal.
Trial Judge: Scott Suskauer.
Attorneys:     Christine Deis, Jenna D. Wickenhauser, Kendrick Almaguer, Yvette B. Reyes.
Issues:           Alimony, Attorney’s Fees.

Holding: The standard of review for an award of attorneys’ fees is abuse of discretion. While a trial court has broad discretion in making an award of temporary attorney’s fees, the trial court must make sufficient factual findings as to the reasonableness of the time expended and the hourly rates. In this case, the trial court erred when it failed to address the reasonableness of the Former Wife’s attorneys’ fees, regarding the number of hours expended and the hourly rate. The appeals court reversed and remanded.

Case:              Brezault v. Brezault
Court:            Fourth District Court of Appeal.
Trial Judge: Dennis D. Bailey.
Attorneys:     May L. Cain.
Issues:           Alimony.

Holding: Florida Statutes provide a specific, non-exhaustive list of factors for the court to consider in making such awards. While the nature and amount of an alimony award is in the discretion of the trial court, it must be supported by competent substantial evidence. Findings must be made regarding the statutory factors, based on the evidence. Absent special circumstances which do not appear in the judgment, an alimony award should not exceed a spouse’s need. In this case, the trial court erred in the amount of alimony awarded to the Former Husband as the decision was not supported by the evidence. Specifically, the recipient spouse’s need was not supported by competent substantial evidence. Further, the trial court failed to make the required findings to support the award. The appeals court reversed and remanded.

Case:              Street v. Street
Court:            First District Court of Appeal.
Trial Judge: Michael Flowers.
Attorneys:     David A. Carroll, David J. Oberliesen, Tonya Holman.
Issues:           Timesharing, Procedure.

Holding: A scrivener’s error on the final order can be grounds for reversal. In this case, the trial court erred as the final order erroneously reflected the timesharing split. The appeals court reversed the portions of the final order reflecting the (scrivener’s) error and remanded for recalculation of the Former Husband’s child support payment to reflect the appropriate timesharing split.

Case:              Liguori, Jr. v. Liguori
Court:            Second District Court of Appeal.
Trial Judge: John S. Carlin.
Attorneys:     Kathryn F. Pugh, Bernard T. King.
Issues:           Child Support, Alimony, Parenting.

Holding: Child Support

The court has discretion to award child support retroactive to the date when the parents no longer lived in the same household with the child. The standard of review for a trial court's imputation of income is whether competent substantial evidence supports it. A final judgment must allocate responsibility for the child/children's uncovered medical and dental costs if applicable. The court may adjust a child support award when the children spend a significant amount of time with the noncustodial parent.

In this case, the trial court erred when it recalculated the award of temporary child support to the extent it calculated the support from the date of filing the petition rather than the date the Former Husband moved out of the marital residence. Further, while the record supported imputation of income, the final judgment failed to allocate responsibility for the children's uncovered medical and dental costs and did not provide for the children's health and dental insurance. Finally, the trial court's calculation regarding the number of overnights allocated to each parent was incorrect. The appeals court reversed and remanded.

Timesharing

A trial court's timesharing plan must be affirmed if it is supported by competent substantial evidence. When forming a parenting plan, the trial court must consider the best interest of the child. In this case, the trial court did not err as the Former Husband did not ask the trial court to continue the plan that had been in place. Instead, he offered a timesharing proposal which the trial court declined but, instead, gave him a temporary plan with more after school time. There was no abuse of discretion in the trial court's decision not to adopt either parent’s proposal and set out a different schedule because the best interests of the children were considered. The appeals court affirmed.

Case:              C.B. v. D.C.F.
Court:            Fifth District Court of Appeal.
Trial Judge: Timothy R. Shea.
Attorneys:     Aaron S. Baghdadi, Derek J. Angell, Rosemarie Farrell.
Issues:           Termination, Abandonment.

Holding: An appellate court will affirm an order terminating parental rights if, upon the pleadings and evidence before the trial court, there was a theory or principle of law which would support the trial court's judgment in favor of termination. Abandonment under Florida Statutes requires strict findings of fact that there was, among other things, no contact between Parent and Child for a period of time. In this case, the trial court did not err in terminating parental rights because it was substantiated by the pleadings and evidence. However, the trial court erred in finding abandonment, because the record reflected the Mother regularly visited with the child, provided toys and clothing for the child, and the child appeared happy to see her during the scheduled visits. The appeals court affirmed as to termination and reversed as to the finding of abandonment.

About DivorceCourtAppeals.com and The 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 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 21, 2016

August 24, 2016

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

Holding: Where a final judgment is reversed and remanded with specific instructions, the lower court has authority to conduct further proceedings in conformity with the instructions but the court cannot exceed the specific bounds of that instruction. The appellate court has inherent authority to enforce a mandate issued in a matter. In this case, the trial court erred when it, on remand, entered an amended final judgment that exceeded the scope of its mandate by changing the type of alimony awarded from permanent to durational. The prior opinion of the appellate court specifically and unambiguously directed the trial court to make additional findings concerning the parties’ incomes and expenses, and if necessary, to reconsider the amount of the alimony award. The opinion did not authorize the trial court to reconsider the type of alimony awarded. By changing the type of alimony awarded from permanent to durational, the trial court impermissibly exceeded the scope of the mandate. The appeals court granted the motion to enforce the mandate, quash the amended final judgment, and remanded for further proceedings consistent with its prior opinion.

Case:             Reider v. Reider
Court:   Second District Court of Appeal.
Trial Judge: Neil A. Roddenbery.
Attorneys:     Debra J. Sutton.
Issues:           Alimony.

Holding: Under Florida Statute, trial courts have the authority to enforce alimony payments with injunctions. Injunctive relief must be presented to the court for decision. The evidentiary record must be sufficient to support such injunctions and the injunctive order must contains a statement of the reasons why the injunctions were entered. In this case, the trial court erred in ordering certain measures to enforce the Former Husband's obligations under the parties’ judgment and Marital Settlement Agreement that expressly, or substantively, enjoin him to take, or refrain from taking, certain actions with respect to his non-marital property. These measures were not part of the claim for relief or set out in the pleadings. Furthermore, the evidentiary record was not sufficient to support these injunctions and the order on appeal contains no statement of the reasons why these injunctions were entered. One such provision threatens incarceration if he failed to sell a home he maintained in another state and use the resulting proceeds to satisfy an alimony arrearage. Another enjoins him from transferring any of the property listed on his financial affidavit except for purposes of satisfying the alimony arrearage. The appeals court reversed on point.

Case:             Viruet v. Grace
Court:            Fifth District Court of Appeal.
Trial Judge: Heather Pinder Rodriguez.
Attorneys:     Scott E. Siverson.
Issues:           Child Support.

Holding: When ordering a party to pay toward child support arrears, the trial court must specify the amount of retroactive support owed in the final judgment or elsewhere. In this case, the trial court erred in ordering the Former Husband to pay a set monthly amount toward arrearage in child support when the final judgment (or the magistrate’s report, which the trial court approved) failed to state the amount of the retroactive child support owed. The appeals court reversed and remanded.

Case:             Manubens v. Manubens
Court:            Fifth District Court of Appeal.
Trial Judge: Mike Murphy.
Attorneys:     Mark A. Skipper, Sherri K. DeWitt.
Issues:           Parenting.

Holding: Certiorari jurisdiction lies to review an order compelling a mental examination. However, certiorari relief can only be granted if the trial court's order amounts to a departure from the essential requirements of the law, resulting in a miscarriage of justice. Florida Family Law Rules of Procedure govern the examination of persons in family law matters as to mental conditions. Under the Rules, a party may request any other party to submit to examination by a qualified expert when the condition that is the subject of the requested examination is in controversy. An examination is authorized only when the party submitting the request has good cause for the examination. The party submitting the request has the burden of showing that both the “in controversy” and “good cause” prongs have been satisfied. The burden of proof is heightened when the party to be examined has not voluntarily placed that issue in controversy. An order for examination must specify the manner, conditions, and scope of an examination. Failure to do so effectively gives the psychologist “carte blanche” to perform any type of testing and analysis. Such an open-ended order departs from the essential requirements of the law, resulting in a miscarriage of justice.

In this court, the trial court erred in ordering the Former Wife to undergo psychological counseling. Specifically, (1) the trial court made no findings that her mental health was in controversy; and (2) the language of the order was too broad because it did not identify the length of the examination, the type of testing, or limits of the testing. The trial court's order did not address either the “in controversy” or the “good cause” requirements of the Rules. The appeals court quashed the order.

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 June 5, 2016

June 7, 2016

Case:             Cilenti v. Cilenti
Court:            Second District Court of Appeal.
Trial Judge: John A. Schaefer.
Attorneys:      Andrew J. Rodnite, Jr., Nikie Popovich.
Issues:            Child Support, Equitable Distribution.

Holding:         Child Support

By Florida statute, child support orders shall provide for health insurance for a minor child when such insurance is reasonable in cost and accessible to the child. By presumption, health insurance is reasonable in cost if it is no more than 5% of the gross income of the parent providing coverage. An order may exceed 5% on written reasons of the court. In this case, the trial court erred when it made no findings in the final judgment explaining its deviation from the presumption.

Equitable Distribution

Nonmarital liabilities include liabilities incurred by either party prior to the marriage. In this case, the trial court erred determining that the Former Wife’s credit card account was a marital debt when, in fact, the account was closed before the parties even married.

Case:             Storey v. Storey
Court:            Fourth District Court of Appeal.
Trial Judge: Charles E. Burton.
Attorneys:      Nancy A. Hass, Sue-Ellen Kenny, Scott D. Glassman.
Issues:            Equitable Distribution.

Holding:         The provisions of a marital settlement agreement (MSA) reached by the parties, and the controlling law, must be followed. In this case, the trial court erred in awarding the Former Wife a greater monthly benefit from the pension of the Former Husband than she was entitled to under unambiguous terms of the parties’ MSA and the controlling law.

Case:             Carlson v. Carlson
Court:            Fourth District Court of Appeal.
Trial Judge: David E. French.
Attorneys:      Christopher R. Bruce, John E. Schwencke, Gary D. Weiner, Scott M. Weiss.
Issues:            Child Support, Attorney’s Fees.

Holding: Child Support

Imputing Income - Income may be imputed based on gifts to a party on sufficient evidence that the gifts have been regular, ongoing and will continue in the future. In this case, the trial court erred in relying on a magistrate’s inclusion of gifts as income to the Former Wife without sufficient evidence that they were regular or continuing.

Child Care - A trial court must rule on a party’s request for relief where the request arises in the pleadings and subsequent proceedings. Child care costs related to employment, finding work, or obtaining education to improve opportunities to work, shall be added to the basic obligation. In this case, the trial court erred in relying on the magistrate’s findings when they were silent on the Former Wife’s requests (made in the pleadings and subsequently) regarding daycare expenses. The appeals court reversed and remanded on this issues.

Attorney’s Fees

Recalculation of income requires reconsideration regarding attorney’s fees. The appeals court reversed and remanded for the trial court recalculate her income, child support, child care expenses and attorney’s fees.

Case:             Lowery v. Carney
Court:            First District Court of Appeal.
Trial Judge: Terrance R. Ketchel.
Attorneys:      Clark H. Henderson, Anna F. Foster.
Issues:            Due Process, Custody.

Holding: The decision of a trial court is presumed and an appellant bears the onus to demonstrate error. In this case, the Mother’s due process rights were not violated when her hearing notice went a wrong address because she could not meet the burden of showing error. No transcript of the hearing was available to show she what address she had provided the court and and the evidence she provided on point could not discharge the onus on her.

Case:            Serra v. Brown
Court:            Second District Court of Appeal.
Trial Judge: William H. Burgess, III.
Attorneys:      John A. Shahan, Knute J. Nathe.
Issues:            Attorney’s Fees.

Holding:         An award of attorney’s fees must be based on findings required by statute. In this case, the trial court erred in awarding attorney’s fees in the absence of statutory findings in support. The appeals court reversed and remanded.

Case:            Benevides v. Reese
Court:            Fifth District Court of Appeal.
Trial Judge: George Paulk.
Attorneys:
Issues:            Procedure, Custody.

Holding:         An appellant must to ensure the appeal record is prepared and transmitted to the appeals court. A copy of the order under review be attached to the notice of appeal. In this case, the Appellant failed to supply the record on appeal, a copy of the final judgment on appeal, or any transcript of the trial for review, which precluded a meaningful review. The appeals court denied.

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 & 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.

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 & Family Law Update for Week Ending September 27, 2015

September 30, 2015

Case:              Matteson v. Matteson
Court:            First District Court of Appeal.
Trial Judge: Robert M. Foster.
Attorneys:     John F. Kattman, Valarie Linnen, Lee J. Pickett.
Issues:            Equitable Distribution.

Holding:        Specific findings are required for equitable distribution awards, and are required in the record on appeal in order to facilitate meaningful appellate review. If a final judgment provides that certain attachments address an equitable distribution award, such attachments are to be included in the record on appeal. In this case, the final judgment provided for certain attachments as to the award but same were not included in the record on appeal. The appeals court reversed and remanded to the trial court with instructions to make specific findings on equitable distribution.

Case:              In the interest of M.P., a child.
Court:            Second District Court of Appeal.
Trial Judge: Joseph G. Foster
Attorneys:    C. Carolina Maluje, Anna E. Galeano Guzman, Stephanie C. Zimmerman, Bradenton, Dwight O. Slater.
Issues:            Dependency, Jurisdiction.

Holding:       A trial court may lack jurisdiction to conduct an adjudicatory hearing if the child / children for which relief is being requested attain the age of majority prior to the hearing. In this case, the trial court did not err in denying a private petition for dependency based on the ground, among others, that the child who was being cared for by a relative did not qualify as dependent by virtue of age.

Case:              D.C.F. v. N.M.
Court:            Third District Court of Appeal.
Trial Judge: Martin Zilber.
Attorneys:     Karla Perkins, Kevin Coyle Colbert, Donna Pike.
Issues:            Attorney’s Fees.

Holding: An appeals court has jurisdiction to review a contempt order against the Department in relation to improper filing of a case plan in advance of a reunification hearing. A finding of contempt must be made pursuant to relevant procedural rules, and after allowing the parties, including the party against which the finding of contempt is being sought, an opportunity to be heard. In this case, the trial court erred in making a finding of contempt against the Department without providing a reasonable opportunity to respond. The appeals court reversed and remanded with instructions to vacate an order imposing a related fine.

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.