Florida Divorce & Family Law Update for the Four Week Ending November 30, 2014

Case:               Daoud v. Daoud
Court:              First District Court of Appeal.
Trial Judge:    Terrance R. Ketchel.
Attorneys:       Jeremiah J. Talbott, Tonya C. Petermann.
Issues:             Equitable Distributions, Contempt. 
 
Holding:          A trial court lacks jurisdiction to alter or modify the property rights awarded to the other former spouse in the dissolution judgment if there are no appropriate pleadings by the other party. Generally, a lower court does not have jurisdiction to modify property rights after an adjudication of those rights has been made in a judgment of dissolution, unless it specifically reserves the jurisdiction to do so. This general reservation does not empower a trial court to address or redistribute vested property between the parties.  In this case, the trial court erred as it failed to specifically reserve jurisdiction to alter the prior distribution of property. Further, the Former Husband failed to properly plead for modification of the real property distribution contained in the dissolution judgment, upon which the trial court acted. The appeals court reversed on these issues and remanded for further proceedings.

Case:              Merkulova v. Elbouatmani
Court:             Fifth District Court of Appeal.
Trial Judge:   Heather L. Higbee.
Attorneys:      David T. Roberts, Shannon L. Akins, Lora S. Scott.
Issues:            Child Support. 
 
Holding:          The monthly gross income figure used to calculate the amount of a payor’s
retroactive child support obligation must be based on, and supported by, competent, substantial evidence. In this case, the trial court erred in establishing the monthly gross income figure used to calculate the amount of the Father’s retroactive child support from the date of the filing of the petition through the hearing on the matter without competent, substantial evidence as to that figure. The appeals court reversed as to the retroactive child support award and remanded with instructions to recalculate it to correspond with evidence presented below.

Case:              Ellisen v. Ellisen 
Court:             Fifth District Court of Appeal.
Trial Judge:   John M. Alexander.
Attorneys:      Adam B. Schemer, Sharon B. Johnson.
Issues:            Alimony. 
 
Holding:          If a former spouse files on a modification petition then the other party, and the court, is on notice that he or she is seeking modification or termination. This is particularly so if coupled with a pretrial stipulation. Further, per Florida statute, the burden of proof required to modify a settlement agreement and that required to modify an award established by court order shall be the same.  In this case, the trial court erred by narrowly construing the Former Husband’s modification petition as a request to terminate alimony, thereby rejecting his request for modification. Further, the trial court erred in applying an incorrect burden of proof to the matter. Specifically, the trial court determined that because the alimony award had bee determined by agreement, the Former Husband had a heavier than usual burden of proof.  The appeals court reversed that portion of the trial court’s order denying the former husband’s petition to modify or terminate alimony, and remand with directions that the trial court reconsider the issue applying the correct burden of proof.
 

Case:              Arquette v. Rutter
Court:             Fifth District Court of Appeal.
Trial Judge:   Bob Leblanc.
Attorneys:      J. Brian Phillips.
Issues:            Child Support. 
 
Holding:          Under the Florida's Uniform Interstate Family Support Act ("UIFSA"), a Florida court may modify a child support order issued in another state under one of the following circumstances:
 

1. After notice and hearing the tribunal finds that: a) the child, individual obligee, and obligor do not reside in the issuing state; b) the petitioner seeks modification and is not a Florida resident; and c) the Florida tribunal has personal jurisdiction over the respondent.
2. The tribunal finds that it has personal jurisdiction over an individual party or the child and that all of the individual parties have filed a consent in the issuing tribunal to the Florida tribunal's modifying the support order and assuming continuing exclusive jurisdiction over it.

A judgment entered by a court which lacks subject matter jurisdiction is void and is subject to collateral attack under Florida procedural rules at any time. 
 
In this case, the trial court erred in modifying a child support order from California (per the Former Husband’s petition) as it lacked subject matter jurisdiction to do. Neither the Former Wife nor the child resided in Florida. Moreover, nothing in the record indicated that either party had filed a consent in the California court allowing the Florida court to modify the child support order. The appeals court reversed and remanded for the trial court to vacate the order modifying the California child support order.

Case:              Kirkland v. Kirkland
Court:             First District Court of Appeal.
Trial Judge:   Linda F. McCallum.
Attorneys:     James Preston Brunet.
Issues:            Dissolution, Child Support, Jurisdiction.
 
Holding:          A Judgment of Dissolution of Marriage is a non-final order if it reserves jurisdiction and contemplates the exercise of additional judicial labor. In this case, the trial court explicitly reserved jurisdiction as to child support. The appeals court therefore declined to address child support.

Case:              Wood v. Blunck
Court:             First District Court of Appeal.
Trial Judge:   Daniel F. Wilensky.
Attorneys:     Brian P. North, Mary Esther, Stefani K. Nolan, Shachar D. Spiegel, Clyde M. Taylor III, L. J. Arnold IV.
Issues:            Alimony. 
 
Holding:          To justify a modification of alimony, the party seeking modification must establish (1) a substantial change of circumstances; (2) that the change was not contemplated at the time of the final judgment of dissolution; and (3) that the change is sufficient, material, permanent, and involuntary. The substantial change of circumstances necessary to modify an alimony award must bear on either the payee spouse’s need for alimony or the payor spouse’s ability to pay it.  For example, when the payee spouse’s need decreases significantly, alimony should ordinarily be modified downward even if the payor spouse has ample ability to pay the original amount. However, the fact that the income of the spouse receiving alimony has increased will not necessarily justify modification of the award. A variety of factors must be considered. The court’s ultimate decision is reviewed under the abuse of discretion standard. Although courts have discretion in determining the amount of alimony to award, the comparison of a party’s expenses and income with the amount of alimony is an important consideration.
 
In this case, the trial court erred as its findings do not indicate a proper exercise of discretion under the principles governing requests to modify alimony. An improvement in the Former Wife’s financial position appeared to be a substantial change of circumstances. The Former Wife’s pre-alimony income had increased by sixty-three percent. The record did not indicate what her expenses were at the time of the final judgment but it  did indicate that the existing award exceeded her current pre-alimony deficit. While the trial court determined that the amount of the Former Wife’s spending reflected a lifestyle below the standard established during the marriage, it did not make findings to indicate what amount of spending would be commensurate with that lifestyle or what factors, if any, offset the substantial increase in her earnings. While the Former Wife’s financial situation had improved, the same could not be said for the Former Husband. The appeals court considered the Former Husband’s ability to pay remained the same and relied on the figures in the final judgment and concluded that the trial court’s finding of no substantial change of circumstances is inconsistent with its findings concerning the Former Wife’s income and expenses. In so ruling, the appeals court declined to comment on whether modification was necessarily required at the time and simply concluded that the order was insufficient to support the trial court’s result. The matter was reversed and remanded for reconsideration.

 Case:              Van Exter v. Diodonet-Molina
Court:             Third District Court of Appeal.
Trial Judge:   Antonio Marin.
Attorneys:      James H. Wyman.
Issues:            Paternity, Custody, Child Support.
 
Holding:          Child support awards and arrearages must be based on competent, substantial evidence of the parties’, and notably the payor’s, net income. The trial court must determine the net income of each parent pursuant to applicable Florida statutes, and include the findings in the final judgment. If the trial court fails to make adequate findings, the appeals court is required to remand for determination of child support. When determining an award of attorney’s fees, the primary factor a judge considers is the financial resources of the parties. This determination is properly made at the time of final judgment, when the trial court can determine the proper amount of attorney’s fees to award based on the parties’ financial situation and ability to pay at the time.
  
Child Support & Arrearages
 
In this case, the trial court erred, and abused its discretion in entering the final judgment because it failed to make sufficient findings with respect to the payor father’s income. In its judgment, the trial court concluded that the father must pay as set amount, based on the Child Support Guidelines.  However, the trial court failed to explicitly state how it calculated that amount and it did not include any findings of the payor father’s gross income or applicable deductions. The trial court also failed to include any explicit findings as to the recipient mother’s income.  Likewise, the trial court erred when it failed to include in the final judgment sufficient findings to establish child support arrearages. The lack of findings in the final judgment was an abuse of discretion.
 
Attorney’s Fees
 
In this case, the trial court erred in that, at the time of the final judgment, it made no specific findings of the father’s ability to pay, as it should have done.
 
The appeals court reversed and remanded on these issues.

Florida Divorce & Family Law Update for the Four Weeks Ending November 23, 2014

Case:              Lieberman v. Lieberman
Court:             Fourth District Court of Appeal.
Trial Judge:   Tim Bailey.
Attorneys:      Lourdes E. Ferrer, Kenneth M. Kaplan.
Issues:            Dissolution, Procedure, Disqualification of Attorney.
 
Holding:          Disqualification of a party’s chosen counsel is a drastic remedy that should be used sparingly.  Motions for disqualification are generally viewed with skepticism because disqualification of counsel impinges on a party’s right to employ a lawyer of choice, and such motions are often interposed for tactical purposes.  Attorney’s fees may be awarded as a punitive measure where a spouse in a domestic relations case institutes frivolous claims that contribute to unnecessary legal expenses, costs and a delay of the proceedings. In this case, the trial court erred in ordering that the former husband’s current wife and legal counsel from could no longer represent him even though she was a potentially necessary witness at the contempt hearing. The fact of her being a potential witness in one instance would not prevent her from serving as the former husband’s attorney in other proceedings. The former wife’s attorney took drastic steps to have the former husband’s wife removed, which were determined to be inappropriate and attorney’s fees were awarded accordingly. The disqualification order is contrary to the plain terms of Florida procedural rules, which, while prohibiting the lawyer from acting as advocate at a trial in which the lawyer is likely to be a necessary, does not support general disqualification of counsel. There was no reason for a general disqualification. The appeals court remanded the matter to the trial court to assess the amount of appellate attorney’s fees to be imposed as sanction on the former wife for her counsel’s conduct in the proceedings in the lower court.

Case:              Ford v. Ford
Court:             Fourth District Court of Appeal.
Trial Judge:   James L. Martz.
Attorneys:      Stacey D. Mullins, Holly D. Schuttler, Andrew A. Harris, Holly Gayle Gershon.
Issues:            Parenting, Contempt.
 
Holding:          In order to find an individual in contempt, the trial court must make specific findings of conduct in violation of an order or procedure. Further, the trial court must find that the contemnor had the ability to comply with the previous court order. A party cannot be held in contempt for non-compliance with a court order if the party did not have the ability to do so.

Pursuant to Florida statute, the trial court has the authority to make specific orders regarding parenting and time-sharing as such orders relate to the circumstances of the parties, the nature of the case and are equitable. While such provisions have not been interpreted to give authority to order parents into therapy, they may be challenged for clarity and broadness.  Florida statute also authorizes the trial court to award costs and attorney’s fees incurred where a parent has not provided time-sharing to the other parent, as well as order any other reasonable sanction as a result of noncompliance. In such instances, the need and ability to pay test under statute is not applicable. Rather, the power to award fees is triggered by the wrongful conduct of the custodial parent, without consideration of the financial resources of the non-custodial parent.
 
Contempt
 
In this case, the trial court did not err as there was competent substantial evidence of specific violations of the parenting plan by the Former Wife to support the finding of contempt. There was also evidence in the record to support the finding that the Former Wife’s failure to comply with parenting and visitation orders was wilful.
 
Counselling Order
 
In this case, the trial court’s authority to order counselling for the Former Wife is not being challenged, rather, the issue is that the counselling provision were vague and overly-broad so as to be unenforceable. To that extent, the appeals court reversed the order to the extent that it required the Former Wife to submit to therapy under ambiguous conditions.
 
Attorney’s Fees
 
In this case, the trial court did not err in awarding the expert and attorney’s fees in accordance with the statute given the Former Wife’s conduct, despite the fact that the Former Husband had the ability to pay. In this case, the need and ability to pay test under statute is not applicable. Rather, the power to award fees was triggered by the wrongful conduct of the Former Wife, without consideration of the Former Husband’s financial resources.
 
The appeals court reversed that portion of the order requiring the Former Wife to obtain counselling and affirmed all others.

Case:               R.C. v. D.C.F
Court:             Third District Court of Appeal.
Trial Judge:   Cindy S. Lederman.
Attorneys:      Eugene F. Zenobi, Kevin Coyle Colbert, Karla Perkins, Patricia Murphy Propheter.
Issues:            Termination, Certiorari.
 
Holding:          Certiorari relief is available when an interlocutory order causes material injury that cannot be remedied on direct appeal. If this threshold requirement is met, then certiorari will only be granted when the order amounts to a departure from the essential requirements of the law. Jurisdiction lies to review an order compelling a psychological or physical evaluation under Florida procedural rules.  The order may be made only upon good cause shown and pursuant to notice and procedures as set forth by the Florida statutory requirements. These specify that such an order shall specify the time, place, manner, conditions, and scope of the examination and the person or persons by whom it is to be made.  In this case, the trial court erred in that it failed to afford the Mother notice that she would be examined / questioned on whether or not she was pregnant and subsequently ordered to take a pregnancy test. There was no showing of good cause, as required by law, and no opportunity for a reflective response by her counsel, the hallmark of notice and due process.  In addition, the order entered by the trial judge fails to include any of the specific information required by rule and the appeals court quashed the order.

Case:              Elias v. Elias et al
Court:             Fourth District Court of Appeal.
Trial Judge:   David E. French.
Attorneys:     Nancy W. Gregoire, Joel M. Weissman, Ashley M. Johnson.
Issues:           Dissolution, Prenuptial Agreement, Property Division.
 
Holding:          In Florida, there is no cause of action for a legal separation. If a prenuptial agreement incorporates language such as, “if the parties become legally separated pursuant to judicial proceedings”, it is unclear, in the context of Florida law, what such language means. A contract provision is ambiguous if it is rationally susceptible to more than one construction. The interpretation of an ambiguous contractual term requires the submission of evidence extrinsic to the contract bearing on the parties’ intent. A trial court’s interpretation of a prenuptial agreement is reviewed de novo, as such agreements are governed by the law of contracts.
 
In this case, the trial court erred in when it reviewed the prenuptial agreement. Specifically, the trial court determined that the parties were legally separated pursuant to a judicial proceeding and ordered the sale of certain marital assets. This threshold determination, however, was based on a finding that the language of the prenuptial agreement was unambiguous when the provision, as noted above, is ambiguous. Since this rendered the trial court’s ultimate ruling moot, the appeals court vacated the trial court’s order determining the date of legal separation and the sale of marital assets. The matters were remanded for further proceedings, including the hearing of evidence to clarify the ambiguous clause.

Florida Divorce & Family Law Update for the Four Weeks Ending November 16, 2014

Case:              Williams v. Williams
Court:             First District Court of Appeal.
Trial Judge:   Linda F. McCallum.
Attorneys:      Lynn W. Martin, J. Nickolas Alexander, Jr..
Issues:            Contempt, Attorney’s Fees. 
 
Holding:          A judgment of contempt is presumed correct on appeal and will not be disturbed unless the evidence in the record is insufficient to support it. Moreover, in dissolution and support matters, the final judgment creates a presumption in subsequent proceedings that the obligor has the ability to make the payments ordered. If the obligor defaults, triggering contempt proceedings, then, the obligor must overcome the presumption with evidence showing circumstances beyond his or her control arose and creating an inability to comply with the prior order. Further, the court shall include in its order a separate finding that the contemnor is currently able to comply with the purge, and the factual basis for that finding. Additionally, the appellant must preserve the issue for appeal. Finally, an award of attorney’s fees must be based on the trial court’s clear findings regarding the need-and-ability-to-pay requirement.
 
In this case, the trial court was correct in determining the Former Husband failed to sustain his burden.  Further, though the trial court’s order did not make an express finding, the record included the Former Husband’s financial affidavit, which showed cash on hand. However, the Former Husband failed to preserve the issue for appeal. While he had filed a notice of appeal the day after the trial court rendered the contempt order, he did not subsequently file a sufficient post-judgment objection (or an emergency motion). As such, the trial court lacked the jurisdiction to amend the contempt order. As for attorney’s fees, the trial court erred as it’s decision was not specific enough to enable the appeals court to effect proper review.  Matters were remanded to the trial court to consider the relative financial standing of the parties and articulate its findings.

 Case:              Diaz v. Diaz
Court:             Third District Court of Appeal.
Trial Judge:   Valerie R. Manno Schurr.
Attorneys:      Michael F. Vander Wyden, Brian D. Fell.
Issues:            Alimony, Dissolution.
 
Holding:          Under Florida statute, durational alimony: a) may not exceed the length of the marriage; and b) cannot be modified except under exceptional circumstances. Equitable arguments that, in exceptional circumstances, the durational alimony may exceed the length of the marriage must fail given the clarity of the statute on point. In this case, the trial court erred in awarding durational alimony for such time which exceeded the parties’ marriage.  The matter was reversed and remanded for reduction of the term of the award.

 Case:             Coleman v. Bland
Court:             Fifth District Court of Appeal.
Trial Judge:   Donald E. Grincewicz.
Attorneys:     Carlton Pierce, Michael B. Jones, Eric Lee Bensen, Cynthia M. Winter.
Issues:           Attorney’s Fees.
 
Holding:          If a trial court order fails to specify which portions of an award of attorney’s fees applies to appellate fees and costs, as opposed to trial fees and costs, then an appeals court is precluded from meaningful review of that award. A review of an order on appellate costs, or attorney’s fees, requires filing a motion for review in the appellate court according to the procedural requirements. In this case, the trial court erred in awarding attorney’s fees without specifying the rationale for the award.  Accordingly, the matter was remanded to the trial court to apportion attorney’s fees and/or costs awarded between appellate and trial work.

Case:              Clayton v. Clayton
Court:             Fifth District Court of Appeal.
Trial Judge:   Donald E. Scaglione.
Attorneys:      Scott T. Smith.
Issues:            Child Support, Time-Sharing.
 
Holding:          A final judgment for child support must: a) be based on consistent and cogent evidence; b) reflect time-sharing arrangements; and c) state the month, day and year that a reduction in child support will become effective. Further, the final judgment shall identify marital liabilities and designate which spouse is responsible for each. In this case, the trial court erred in that the final judgment incorporated an erroneous child support worksheet. Specifically, the worksheet utilized the Appellee’s net income but the Appellant’s gross income. Additionally, while the worksheet employed utilized the “Gross Up Method” of calculation of child support, the time-sharing arrangement did not support this method. Further, the final judgment failed to comply with Florida statutes in that it did not address the time-sharing schedule and date of reduction of child support. The final judgment also failed to allocate the liabilities between the parties. The appeals court reversed and remanded those portions of the final judgment to the trial court to make the necessary corrections.