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 4, 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:             Sweeney v. Sweeney
Court:            Second District Court of Appeal.
Trial Judge:   G. Keith Cary.
Attorneys:     Luis E. Insignares, Rana Holz.
Issues:           Equitable Distribution.

Holding:       In this case, the trial court erred in awarding an excessive credit to the Former Wife for tax payments she made on real estate commissions that were divided in equitable distribution.  Specifically, the trial court erred in crediting her for taxes she paid on the marital commissions when it had already allowed her to deduct a cash amount for the same marital taxes. The appeals court reversed and remanded.


Case:             D.C.F. v. M.N. and O.C.S.
Court:            Third District Court of Appeal.
Trial Judge:   Martin Zilber.
Attorneys:     Karla Perkins, Eugene F. Zenobi, Kevin Coyle Colbert.
Issues:           Dependency.

Holding:      Determinations regarding the transfer of a case to another jurisdiction based on the “inconvenient forum” provisions of the UCCJEA are a matter of the trial court’s discretion. Once the DCF commenced the dependency proceedings in the children’s home state, the trial court had continuing jurisdiction under the statute. That jurisdiction carries with it the duty to ensure that the best interests of the children are advanced; a duty that exists during dependency proceedings, and continues through adoption proceedings. This duty exists to carry out the legislature’s goal that all dependency proceedings are to seek to achieve permanency for the children. A Florida trial court does have the ability to transfer a case when it determines that another forum is more convenient.  In this case, the trial court erred in ordering termination of the DCF’s supervision over two minor children and closing the file. Specifically, the record established that the trial court acquired, and had continuing, jurisdiction over the case and children because Florida was the children’s home state under the UCCJEA. (The older child had lived in Florida for 6 consecutive months, and the infant child been born there). As the DCF commenced proceedings in Florida, the home state, the trial court had continuing jurisdiction under the statute. Its dismissal without the children having reached permanency was improper. While the trial court concluded that the children were in Puerto Rico and the parents could not be located in Florida a “transfer” of the case to Puerto Rico was warranted. The trial court was required to comply with certain statutory factors and make the necessary statutory findings, which it failed to do. The appeals court reversed and remanded.


Case:             Medina v. Haddad
Court:            Third District Court of Appeal.
Trial Judge:   Marcia B. Caballero.
Attorneys:     Theodore H. Uno, Lauren M. Alperstein, Stephanie Matalo.
Issues:           Timesharing.

Holding:       In this case, the trial court erred when it failed to comply with Florida Rules of Civil Procedure and Family Law Rules when ordering a child undergo a compulsory psychological evaluation. Specifically, although the trial court attempted to characterize what was effectively a psychological evaluation as a “therapeutic consultation,” the Mother was required to comply with Florida Rules of Civil Procedure and Family Law Rules and prove that the child’s mental condition was “in controversy” in the litigation; and “good cause” existed for the compulsory psychological evaluation. As the Mother was not able to establish either, the appeals court quashed the trial court’s order.


Case:             Schufelt v. Schufelt
Court:            Fifth District Court of Appeal.
Trial Judge:   Edward J. Richardson.
Attorneys:     Elizabeth Siano Harris.
Issues:           Equitable Distribution.
 

Holding:      Generally, when a party submits a proposed final judgment, it is error for a trial court to enter the judgment without providing the other party an opportunity to review the proposed judgment and make objections. Such issues raise questions of fairness and are subject to appellate review. An appellant bears the onus of demonstrating reversible error.  An alleged defect must be brought to the trial court's attention by the timely filing of a motion for rehearing which raises issue or arguments regarding the alleged unequal distribution. In this case, the Appellant (Former Husband) was required to demonstrate reversible error but failed as there was no sufficient record of the hearing on point. As such, he could not show that the trial court's oral findings at the hearing was not supported by competent substantial evidence. Further, while the trial court's findings of fact in the final judgment were inadequate to support the unequal distribution of this marital asset, the Former Husband’s motion was not filed on time. Even if it were, he raised no issue or argument in the motion regarding the trial court's unequal distribution of the marital home. He failed to preserve the key issue for appellate review. The appeals court affirmed.


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 2 Weeks Ending August 7, 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:             J.P. v. D.P, D.C.F. & Guardian ad Litem Program
Court:            First District Court of Appeal.
Trial Judge:   Karen A. Gievers.
Attorneys:     M. Linville Atkins, Mike Donovan, Kelley Schaeffer.
Issues:            Parenting, Custody.

Holding:       A trial court has broad discretion in ordering timesharing, and its decision should be affirmed if it is supported by competent, substantial evidence and is not an abuse of discretion. The proper review of a petition for relocation entails a best-interests determination at the time of the final hearing. In this case, the trial court erred in rendering a final judgment establishing a parenting plan that would require the six-year-old minor child to move over 300 miles away to live with the Mother when the child begins middle school, when the prospective change in residence was unsupported by the record and contrary to the court’s finding that living with the Father was in the child’s best interests. A prospective-based analysis that purports to determine that a change in residence will be in the child’s best interests approximately 5 years in the future is impermissible. The court further erred in imposing a change in residence when it was not requested by either parent nor addressed at the hearing. This violated the Father’s due process rights. The appeals court reversed.  


Case:             Adkins v. Sotolongo
Court:            Third District Court of Appeal.
Trial Judge:   Pedro P. Echarte, Jr..
Attorneys:     
Issues:            Guardian at Litem Fees.

Holding:        In this case, the trial court erred in granting the motion of the Guardian ad Litem (GAL) to compel payment of her fees in the absence of an order specifying the parties' income, the basis for a modified support amount, or any justification for a departure from the guidelines. Specifically, the trial court ordered the Father to divert a portion of his child support payment directly to the GAL for payment of her fees and pay the remainder to the Mother. It also amended its order regarding the Father’s payments to the central depository. The parties failed to arrange for a recording of hearings on the GAL’s motion, so appellate review was limited to errors on the face of the order. The appeals court reversed and remanded.


Case:             Jackson v. Jackson
Court:            Third District Court of Appeal.
Trial Judge:   Antonio Marin.
Attorneys:     Ilene F. Tuckfield, Hegel Laurent.
Issues:            Child Support, Parenting, Alimony, Equitable Distribution, Attorney’s Fees.

Holding:       This was a motion for clarification by the Former Husband regarding an appellate opinion dated June 22, 2016. The appeals court granted the motion, withdrew the opinion and substituted the following: where the appellant, through no fault of his own, has been unable to provide this court with a transcript of the final hearing below, and the parties and the trial court have been unable to reconstruct the record, we are compelled to summarily reverse for a new trial.


Case:             Dickson v. Dickson
Court:            Fourth District Court of Appeal.
Trial Judge:   Laurie E. Buchanan.
Attorneys:     Leanne L. Ohle.
Issues:           Child Support, Alimony.

Holding:        Alimony

An award of alimony will not be reversed absent an abuse of discretion. A trial court abuses its discretion when it fails to award retroactive support from the date of the filing of a petition for dissolution of marriage where there is a need for child support and an ability to pay. Florida Statutes (2013), governs alimony and provides: (1) for bridge-the-gap, rehabilitative, durational, or permanent alimony (or any combination); (2)  periodic payments, lump sum or both; and (3) will consider factors including the duration of the marriage, the age of the parties, their financial resources and earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment. For long-term marriages (17 or more years), there is a rebuttable presumption in favor of permanent alimony. A spouse’s age is not a valid basis to deny permanent alimony absent evidence that the spouse’s youth would allow her or him to earn income sufficient to support a life-style consistent with that enjoyed during the marriage.

In this case, the trial court erred in awarding bridge-the-gap instead of permanent alimony to a Former Wife, aged 42, after a 19-year marriage, who was furthering her education and had no source of income. Although the amended final judgment provides that the trial court considered the statutory factors governing the award of alimony, it was apparent from the hearing transcript that the trial judge did not have the relevant information before it to consider all statutory factors. Additionally, the court’s findings were insufficient to overcome the presumption in favor of permanent alimony. Further, the trial court’s statements during the hearing indicated that the court misapplied the law regarding the Former Wife’s age. Further, the trial court erred in finding that bridge-the-gap alimony was appropriate when bridge-the-gap alimony serves to assist a spouse already capable of self-support during the transition from being married to being single.

Child Support

Under Florida Statutes (2013), in an initial determination of child support, the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition. Factors that the court must consider in determining retroactive child support, include the need and the ability to pay of the respective parents and all actual payments made by a parent to the other parent or the child or third parties for the benefit of the child throughout the proposed retroactive period. In this case, the trial court erred in not considering an award of retroactive child support.

The appeals court reversed and remanded.


Case:             Jordan v. Jordan
Court:            Fourth District Court of Appeal.
Trial Judge:   Alfred J. Horowitz.
Attorneys:     Nancy A. Hass.
Issues:           Equitable Distribution, Alimony, Attorney’s Fees.

Holding:      An appeals court reviews final judgments of dissolution for an abuse of discretion. This is a review of a remanded decision.

Equitable Distribution

Under Florida Statutes, the distribution of marital assets and liabilities shall include specific written findings of fact regarding the identification of the marital liabilities and designation of which spouse shall be responsible for each liability. In this case, the trial court failed to include lease turn-in fees on the Former Wife’s car which the Former Husband bore. The appeals court reversed and remanded on this issue.

Alimony

Florida Statutes provide that, in awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties. In this case, the trial court ordered permanent alimony and failed to make the requisite finding that no other form of alimony would be fair and reasonable. The appeals court reversed and remanded for this finding.

Attorney’s Fees

In making an award of attorney’s fees, among other things, the trial court must consider the number of hours claimed for such fees. In this case, the trial court erred in awarding attorney’s fees for the services of the Former Wife’s two prior attorneys in the absence of her evidence in support of the reasonable number of hours. Further, the trial court made no findings on reasonable number of hours or reasonable hourly rate. The appeals court reversed the award of fees.


Case:             Pansky v. Pansky
Court:            Fourth District Court of Appeal.
Trial Judge:   Timothy L. Bailey.
Attorneys:     Troy William Klein, Jordan B. Abramowitz.
Issues:            Equitable Distribution.

Holding:    There must be evidence of the spending spouse’s intentional dissipation or destruction of the asset, and the trial court must make a specific finding that the dissipation resulted from intentional misconduct. In this case, the trial court erred in failing to make a specific finding of misconduct necessary to support equitable distribution to the Former Wife of funds the Former Husband spent pending these proceedings. The appeals court reversed and remanded.


Case:             Fahey v. Fahey
Court:            First District Court of Appeal.
Trial Judge:   David Rimmer.
Attorneys:     
Issues:           Paternity, Custody.

Holding:      Under Florida law, parental rights may only be terminated through adoption or statutory procedure. A child’s legitimacy will not be affected by a court determination of paternity or subsequent support orders. In this case, a Georgia court confirmed the parties agreement that, based on genetic test results showing that Appellant was not the biological father, he would have no parental rights or responsibilities regarding the minor child. While it may have been an error under Florida law for a Georgia court to so conclude, its judgment is entitled to full faith and credit, because the Georgia Court of Appeals found that the trial court did not exceed its subject-matter jurisdiction under Georgia law. Further, the Appellant attempted to intervene in the Georgia proceedings, and moved to dismiss for lack of subject-matter jurisdiction. While the Appellant’s jurisdictional argument failed, it was raised and litigated in the Georgia proceeding. Res judicata precludes Appellant from using those grounds in a Florida court. The appeals court affirmed.


Case:             Pucci v. Johnson
Court:            First District Court of Appeal.
Trial Judge:   Elizabeth Senterfitt.
Attorneys:     Caleb D. Rowland, William M. Blume, Beth M. Terry.
Issues:           Equitable Distribution.

Holding:         Florida Statutes require the court to value and distribute all marital assets.  In this case, the trial court erred by distributing only the marital assets included in the parties’ settlement agreement (which was subsequently incorporated into the final judgment). The appeals court reversed and remanded.


Case:             Richardson v. Knight
Court:            Fourth District Court of Appeal.
Trial Judge:   Dennis D. Bailey.
Attorneys:     Mason A. Pertnoy.
Issues:           Equitable Distribution.

Holding:         Generally, a settlement agreement, including a MSA, announced in open court is enforceable.  However, for an oral MSA announced in open court to be valid and enforceable, the MSA must meet the statutory requirements on point and the trial judge must obtain clear and unequivocal assent to the MSA from each party on the record, and must also confirm that each party has discussed the MSA with their attorney and fully understands the terms. In this case, the trial court erred in imposing the equitable distribution scheme under an oral MSA in the absence of the record showing it relied on competent substantial evidence and failed to conform to statute (including those the court is required to consider when determining the equitable distribution of assets and liabilities in a dissolution of marriage action, and whether the equitable distribution should be equal or unequal). The appeals court reversed and remanded.


Case:             Buckalew v. Buckalew
Court:            Fourth District Court of Appeal.
Trial Judge:   Renee Goldenberg.
Attorneys:     Michael A. Hymowitz, Barry S. Franklin.
Issues:            Equitable Distribution.

Holding:       Distribution of marital assets and liabilities must be supported by factual findings in the judgment or order based on competent substantial evidence. In this case, the trial court erred in an equitable distribution award when it failed to make required findings of fact in the final judgment. Specifically, it adopted the magistrate’s written findings of fact, which failed to identify the marital or non-marital status of each asset and liability, and failed to ascribe a value for those assets and liabilities as required by statute.  The appeals court reversed and remanded.  


Case:             Wilkinson v. Wilkinson
Court:            Fifth District Court of Appeal.
Trial Judge:   Jessica J. Recksiedler.
Attorneys:     Christie L. Mitchell.
Issues:           Equitable Distribution.

Holding:       Despite the trial court’s wide discretion in dissolution matters, an appeals court must correct mathematical errors. In this case, the record revealed the trial court erred when it adopted verbatim the Former Wife’s proposed final order without adjudicating matters itself. The oral pronouncement also frequently referenced differing amounts for the value of the same item or category of property without explanation as to how or why the trial court modified the figures. There were also mathematical errors. The appeals court reversed and remanded with direction for the trial court to ensure that the final judgment is consistent with the evidence presented.  


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 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:              Haritos v. Haritos
Court:             Second District Court of Appeal.
Trial Judge:    Patricia A. Muscarella.
Attorneys:      O. George Bamis, Nancy S. Paikoff, Steven J. Glaros.
Issues:            Child Support, Alimony, Procedure.

Holding:         A temporary relief order does not merge into a final judgment where the final judgment provides that the trial court jurisdiction to later resolve property, custody and support issues. In this case, the trial court erred as it failed to enter a final judgment disposing of the financial aspects of the parties' dissolution. The appeals court reversed and remanded.


Case:              Edge v. Edge
Court:             Second District Court of Appeal.
Trial Judge:   G. Keith Cary.
Attorneys:      Robert L. Donald, Paul A. Rocuant.
Issues:            Alimony, Procedure.

Holding:      Certain statutory requirements guide a trial court’s calculations of a party’s income for the purpose of awarding child support or alimony. For instance, a trial court must not exclude from consideration bonuses that are regular and continuous. Also, when calculating child support, voluntary retirement payments are not included as allowable deductions. An appeals court must reverse if there have been inaccurate calculations. In this case, the trial court erred in calculating the Former Husband's income. Specifically, the trial court erroneously used the amount of gross income that he reported on his financial affidavit, despite his later evidence that it had increased, and excluded employment bonuses noting that they were discretionary. Nor should it have deducted mandatory retirement payments. 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 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 12, 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:             McWilson v. McWilson 
Court:            First District Court of Appeal.
Trial Judge:   Gary L. Bergosh.
Attorneys:     Stephen A. Pitre.
Issues:           Child Support, Parenting, Equitable Distribution.

Holding:  Visitation travel expenses should be allocated in the same guidelines ratio as governs allocation of the other child care expenses, unless the trial court makes findings explaining why a different allocation is needed to achieve an equitable result. In this case, the trial court erred as the gross income used on the child support guidelines worksheet did not match the figures on the parties’ most recent financial affidavits and it made no findings explaining its decision which departed from the normal process. The appeal court could not determine whether the award was made in accordance with Florida statutes, and reversed and remanded.


Case:             Lopez v. Lopez
Court:            Third District Court of Appeal.
Trial Judge:   David C. Miller.
Attorneys:     Geoffrey B. Marks, G. Bart Billbrough, David M. Gersten, Joseph A. Sacher, Christopher A. Noel.
Issues:             Divorce.

Holding:  To prevail on a petition for a writ of certiorari, a party must demonstrate that the contested order constitutes (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. As a condition precedent to invoking a district court’s certiorari jurisdiction, the petitioning party must establish that it has suffered an irreparable harm that cannot be remedied on direct appeal. In this case the trial court did not err when it found no material injury which could not be corrected on post-judgment appeal and the parties’ respective claims to immediate possession remain subject to determination. The appeals court affirmed.


Case:             A.D.A. & M.J.L. v. D.M.F.
Court:            Fourth District Court of Appeal.
Trial Judge:   Howard H. Harrison.
Attorneys:     Andrew A. Harris, J. Mark Maynor.
Issues:            Paternity.

Holding:  Under Florida statutes when the unmarried parents a child file a voluntary acknowledgement of paternity, such acknowledgement creates a rebuttable presumption of paternity. This is subject to the right of any signatory to rescind the acknowledgement within 60 days after it was signed or the date of an administrative or judicial proceeding relating to the child, whichever is earlier. Further, if the mother and the reputed father get married, any time after the child is born, the child is deemed and held to be the child of the husband and wife. However, the presumption of paternity cannot rest on false assertions by the parents.  In this case, the trial court erred when it denied a motion for paternity testing filed by a man who sought to establish himself as the biological father of a child after the Mother married a different man when the Mother had presented false affidavits to create the presumption of paternity for her current husband when both knew the other man could have been the father of the child. There was no presumption and his rights were infringed by being prevented from seeking a paternity declaration. The appeals court reversed and remanded.


Case:             Powers v. Powers
Court:            Second District Court of Appeal.
Trial Judge:   Keith Meyer.
Attorneys:     Jane H. Grossman, K. Dean Kantaras.
Issues:           Attorney’s Fees. 

Holding:  Florida statutes (2014), govern attorneys' fee and cost awards in post dissolution enforcement proceedings. The appropriate inquiry for entitlement to fees and costs is each spouse's need for suit money versus each spouse's respective ability to pay. The court must make findings of fact sufficient to permit appellate review of its decision to award or deny a party's request for attorneys' fees and costs under statute. In this case, the circuit court erred in its denial of the Former Wife's request for attorneys' fees and costs as it found no basis upon which to award either party fees or costs as requested. The appeals court reversed and remanded.


Case:             D.A.D. v. J.S.
Court:            Second District Court of Appeal.
Trial Judge:   R. Thomas Corbin.
Attorneys:     Robert L. Donald, Joseph P. Hoffman.
Issues:           Paternity. 

Holding:  Once a foreign judgment is domesticated in Florida, it is to be treated as an original Florida decree. An order adjudicating issues not presented by the pleadings, notice to the parties, or litigated below denies fundamental due process. In this case, the circuit court erred when it improperly modified a domesticated paternity judgment in ways that were not pleaded in the modification petition. The appeals court reversed.


Case:             Levesque v. Levesque
Court:            Second District Court of Appeal.
Trial Judge:   Amy M. Williams.
Attorneys:     Christin C. Brennan, Jane H. Grossman.
Issues:            Alimony. 

Holding:  In this case, the trial court abused its discretion in awarding durational instead of permanent periodic alimony when the trial court found that the Former Wife was disabled and the undisputed evidence established that she was unable to return to work. The appeals court reversed.


Case:             Durst v. Durst
Court:            Fifth District Court of Appeal.
Trial Judge:   Mike Murphy.
Attorneys:     Melanie M. Demps.
Issues:            Alimony. 

Holding:  Failure to give notice of a hearing to the opposing party, absent a true emergency, deprives the opposing party of its right to procedural due process. In this case, the trial court erred when the Former Husband was not afforded due process. Specifically, despite the lack of a hearing, the trial court entered an order granting the Wife’s motion. The failure to afford the Husband an opportunity to present evidence and be heard deprived him of his right to procedural due process. 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.