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 & Family Law Update for Week Ending March 8, 2015

March 10, 2015

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:               Guevara v. Guevara et al
Court:             Third District Court of Appeal.
Trial Judge: Maria E. Dennis.
Attorneys:      Jay M. Levy, Ira B. Price, Mark E. Pollack.
Issues:             Procedure, Final Order.

Holding:        Leave of court to amend a pleading shall be given freely when justice so requires. In this case, trial court erred when it abused its discretion in dismissing the Former Wife’s petition to set aside a Final Judgment (approving and ratifying the parties’ Marital Settlement Agreement, “MSA”) with prejudice to her claim that she did not receive moneys in exchange for her interest in the sale of certain real estate, as was provided for in the MSA. The appeals court reversed that portion of the trial court order and, on remand, the Former Wife was permitted to amend the portion of her claim as to the moneys to which she is entitled under the MSA.

Case:               Castelli v. Castelli
Court: Fourth District Court of Appeal.
Trial Judge: Laura M. Watson.
Attorneys:      John H. Pelzer, Robert J. Moraitis, Peter M. Raimondi
Issues:             Contempt, Matrimonial Property.

Holding: A right of first refusal is a right to elect to take specified property at the same price and on the same terms and conditions as those contained in a good faith offer by a third person if the owner manifests a willingness to accept the offer. When the holder of a right of first refusal attempts to exercise his right but adds or deletes terms and/or conditions that render the offer different than that submitted by the third party prospective purchaser, the right of first refusal has not been properly exercised. However, a right of first refusal ripens into an option and is governed by the law of options when the owner of the property in question manifests a willingness to accept a good faith offer for the purchase of the property. In that case, a party need not recite the terms of the third party contract he is agreeing to match when he exercises his right of first refusal; rather it is simply enough to announce an intent to match them. In this case, the trial court erred in rejecting the Former Husband’s attempt to exercise a right of first refusal with respect to the purchase of the former matrimonial home when, the right of first refusal had transformed into an option contract to which the Former Husband had agreed in principle (both before and after he invoked his “right of first refusal”). The trial court also erred in finding him in contempt for not executing a third party offer on the property. In this situation, the right of first refusal effectively transformed into an option contract when the Former Wife agreed in principle to accept the third party purchaser’s offer, both before and after the Former Husband had invoked his “right of first refusal.” The Former Husband had emailed indicating he would match the terms of another offer. This was sufficient to trigger the exercise of his right. The appeals court reversed and remanded to the trial court to strike the Former Husband’s contempt order, insofar as he was seeking to invoke and exercise his right of first refusal in the circumstances, and enforce the exercise of his right of first refusal.

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Florida Divorce & Family Law Update for Week Ending March 1, 2015

March 3, 2015

Case:             Isaacs v. Isaacs
Court:            Fourth District Court of Appeal.
Trial Judge:   Arthur M. Birken.
Attorneys:     Pamela Jo Bondi, William H. Branch.
Issues:           Contempt.

Holding: Under Florida Family Law Rules, a contempt order must contain findings that a contemnor had the present ability to pay support under a prior court order and wilfully failed to comply. The issued contempt order must present a recital of the facts on which the court made the findings upon which it is based. Where a court orders incarceration as the appropriate sanction, the contempt order must also contain a separate affirmative finding (emphasis added) that the contemnor has the present ability to comply with the purge and the factual basis for that finding. In this case, the trial court erred as its order contained no recitation of facts to support the finding that appellant had the ability to comply with the court’s prior order. The appeals court reversed and remanded.

Case:              Purin v. Purin
Court:            Second District Court of Appeal.
Trial Judge: Elizabeth V. Krier.
Attorneys:     Matthew E. Thatcher, Cynthia B. Hall.
Issues:           Alimony.

Holding:        When determining alimony awards, the starting point is one party’s need and the other’s ability to pay. Generally, trial courts may not consider future events in setting current alimony amounts due to the uncertainty and lack of evidence. An obligor's retirement does not mandate termination of an alimony award. Retirement simply allows the trial court, upon proper motion, to revisit the parties' respective applicable circumstances. A trial court may consider a combined alimony award (being a nominal amount of permanent periodic alimony in conjunction with the durational alimony award). This approach may minimize the need for litigation at the time of an payor’s retirement while preserving an payee’s right to support if he or she continued to have need. Florida statute allows for the extension of durational alimony if a party can demonstrate exceptional circumstances showing the need for continued alimony.

In this case, the trial court erred in awarding durational, rather than permanent, alimony for a long-term marriage by speculating on the parties' needs and ability to pay when the Former Husband retired. A current alimony issue could not be properly resolved by addressing future contingencies. The trial court also misinterpreted statute in denying the Former Wife her statutory right to seek an extension of a durational alimony award. The appeals court reversed in part and remanded for further proceedings.

Case:             Westwood v. Westwood
Court:            Fifth District Court of Appeal.
Trial Judge: Robert M. Evans.
Attorneys:    Matthew R. McLain, Nicholas A. Shannin.
Issues:           Modification, Process.
Holding: It is not improper for a trial court to deny a hearing on an unserved petition for modification. To succeed on modification a party must plead and prove a substantial, material, and unanticipated change of circumstances, and establish that modification is in the children’s best interest. In this case, the trial court did not err in denying the hearing on the Former Wife’s petition insofar as it was correct in viewing the pleading as an untimely motion for rehearing or reconsideration (rather than a supplemental petition). While the petition attempted to cover all bases, the Former Wife neither obtained a summons nor served the petition on the Former Husband. The appeals court’s decision was without prejudice to the Former Wife to re-file a properly served petition for modification.

Case:              C.D. v. D.C.F.
Court:            First District Court of Appeal.
Trial Judge: David M. Gooding.
Attorneys:   Jeffrey E. Lewis, Robert Keep, Jr., Crystal McBee Frusciante, Kelley Schaeffer, Ward L. Metzger.
Issues:           Termination of Parental Rights.

Holding:       It is improper for a trial court to order termination of parental rights as the least restrictive means available to protect a child, or children, from serious harm when its findings of fact regarding a parent-child relationship are incongruous with that ruling. Specifically, if a trial court finds on the evidence that there is a bond or relationship between the parent and the child or children, it is incongruous to order termination as the least restrictive means of protection. Before parental rights in a child can be permanently and involuntarily severed, the state must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child or children. The standard of review in termination of parental rights cases is highly deferential. In this case, while the trial court did not err to the extent it found that termination was warranted under Florida statute and because it was in the children’s manifest best interests, it did err to the extent that it found termination of the Mother’s parental rights was the least restrictive means available to protect the children from serious harm. The appeals court reversed termination on the least restrictive means basis and remanded for further proceedings consistent with this opinion.

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Florida Divorce & Family Law Update for Week Ending February 22, 2015

February 24, 2015

Case:              McIndoo v. Atkinson
Court:             Fourth District Court of Appeal.
Trial Judge: Laura M. Watson.
Attorneys:      Pro Se.
Issues:            Custody, Foreign Judgments.

Holding: The general purposes of the UCCJEA are to avoid jurisdictional competition and conflict with other courts in child custody matters; promote cooperation with other courts; insure that a custody decree is rendered in the state which enjoys the superior position to decide what is in the best interest of the child; deter controversies and avoid relitigation of custody issues; facilitate enforcement of custody decrees; and promote uniformity of the laws governing custody issues.

If the factual circumstances of a case meet the jurisdictional standards of the statute, and the foreign order has not been modified, then a trial court should exercise jurisdiction to grant a party’s petition of domesticate the foreign order. Specifically, in a child custody proceeding under commenced under Florida statute, if the Home State Rule applies, and if there are no proceedings in another state, or if there are proceedings in the another state which are not identical to those in Florida, then a Florida trial court may exercise jurisdiction.

A child custody proceeding involves legal custody, physical custody, residential care, or visitation with respect to a child is an issue. The term includes a proceeding for divorce, separation, neglect, abuse, dependency, guardianship, paternity, termination of parental rights, and protection from domestic violence, in which the issue may appear.

Under Florida statute, “Home State” means the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding. In the case of a child younger than 6 months of age, the term means the state in which the child lived from birth with any of the persons mentioned. A period of temporary absence of any of the mentioned persons is part of the period. The “Home State” rule applies to child custody proceedings.

A Florida court may not exercise its jurisdiction for custody if, at the time of the commencement of the proceeding, a proceeding concerning the custody of the child had been commenced in a court of another state having jurisdiction substantially in conformity with this part, unless the proceeding has been terminated or is stayed by the court of the other state.

In this case, the trial court erred when it found that it did not have subject-matter jurisdiction because: (1) the Petitioner Mother did not file a motion regarding a “child custody proceeding” as defined by Florida statute; (2) Florida was not the “home state” of the child; and (3) proceedings “in substantial conformity with the UCCJEA” had been commenced in another jurisdiction.

Child Custody Proceeding

The trial court erred when it declined to exercise jurisdiction to act upon the petition to domesticate a foreign custody order in the absence of any statutory, or other, authority requiring that a proceeding be a “child custody proceeding” under the definition in the UCCJEA before it could act. To the contrary, both the statute governing domestication of a foreign judgment and registration of a judgment are contained within Florida’s UCCJEA statutes. Therefore, the fact that the mother’s filings were not regarding a child custody proceeding is irrelevant to the question of jurisdiction to domesticate a foreign custody order.

Home State Rule

The trial court also erred in its interpretation of the proceedings and its application of the Home State Rule by denying the Petitioner Mother’s application to domesticate the foreign order and seeking to rely on the Respondent Father’s opposition to the petition, which relied in large part on this section of the UCCJEA. The child custody proceeding was properly within the domain of Florida statute because, as was in fact found by the trial court, the petitions filed by the mother did not constitute “child custody proceedings.” This means that the “home state” rule did not apply to the mother’s petitions.

Simultaneous Proceedings

The trial court further erred as it failed to specifically cite to this statute in its order, since it stated that the proceedings in the other state (ie: Arizona) were in substantial conformity with the UCCJEA. However, the proceedings before the trial court could have been entertained as they were for domestication of the foreign order. When the trial court concluded it did not have subject-matter jurisdiction based, at least in part, upon the simultaneous proceedings statute, it misapplied the statute.

The appeals court reversed the trial court’s order and remanded for the trial court to enter an order granting the Petitioner Mother’s petition to domesticate the foreign order and confirming its registration.

Case:              Butler v. Prine
Court:             Second District Court of Appeal.
Trial Judge: Linda R. Allan.
Attorneys:      Tori A. Butler, Kathryn Marie Welsh.
Issues:            Attorney’s Fees.

Holding: An award of attorney’s fees post-dissolution is within the jurisdiction of the trial court but must be based on substantial and cogent evidence for the court. Among such evidence is that regarding the reasonableness and necessity of all the legal work underlying the attorney fees forming the basis of such an award. Further, the trial court must adequately consider this particular factor. In this case, the trial court erred insofar as, while the evidence before it justified a fee award of some amount, the trial court did not establish that it had adequately considered the reasonableness and necessity of all of the legal work underlying the attorney fees. The appeals court reversed the award of attorney's fees and remanded for the trial court’s reconsideration with authorization to receive additional evidence.

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Florida Divorce & Family Law Update for Week Ending February 15, 2015

February 17, 2015

Case:              Atkinson v. Atkinson
Court:             Second District Court of Appeal.
Trial Judge: Ashley B. Moody.
Attorneys:      Elizabeth S. Wheeler, Christian D. Denmon, Nicole Denmon, Andrew Plagge.
Issues: Alimony.

Holding: The court may reduce or terminate an award of alimony upon making specific written findings that, since the granting of a divorce and the award of alimony, a supportive relationship has existed between the payee and a person with whom the payee resides. Cohabitation often constitutes a change in circumstance. However, the definition of cohabitation and what facts, beyond a common residence, establish a supportive relationship rather than that of roommates or tenant/lodger. A trial court's decision concerning whether or not cohabitation has been established involves a mixed question of law and fact requiring a mixed standard of review, limited to determining whether they are supported by competent, substantial evidence. However, the appeals court reviewed the trial court's construction of the term "cohabitation" and its legal conclusions, de novo. Matrimonial settlement agreements providing for the termination of alimony upon cohabitation are intended to protect the payor spouse from a continuing obligation to pay alimony when the payee spouse is residing with another person under circumstances similar or tantamount to marriage. Therefore, a finding of cohabitation requires more than the mere presence of another person under the payee spouse's roof.

In this case, the trial court erred in ruling that a male living in the Former Wife's residence amounted to "cohabitation with a male" within the meaning of the parties’ MSA, such that the Former Wife’s alimony award would terminate. On the evidence, the Former Wife and the man maintained a relationship more akin to his being a lodger or tenant. The appeals court reversed and remanded for, among other things, an amended order denying the Former Husband's petition to terminate his obligations to pay alimony and maintain a life insurance policy as security for its payment.

Case:              Chamberlain v. Eisinger
Court:             Fourth District Court of Appeal.
Trial Judge: Paul B. Kanarek.
Attorneys:      A. Julia Graves
Issues:            Child Support, Imputed Income, Time-Sharing, Reunification.

Holding: Modification of Custody & Timesharing
When modifying a parenting and timesharing plan, the primary considerations are the best interests of the children. To modify an order of custody, the movant must show that: the circumstances have substantially and materially changed since the original custody determination; this change could not be contemplated by the parties at the time of the original judgment; and it is in the child’s best interests to change custody. While this onus on the party seeking to modify is intended to preclude repeated custody disputes, it should not preclude legitimate review of the petition. Courts must evaluate all relevant statutory factors affecting the welfare and interests of the child. A trial court’s order changing custody enjoys a presumption of correctness on appellate review and will only be disturbed for abuse of discretion.

In this case, the trial court did not err in concluding a substantial change in circumstances existed and that such change warranted the modification of timesharing because it trial court considered evidence relevant to the best interests of the children.

Reunification

A custodial parent has an affirmative obligation to encourage and nurture the relationship between the child and the noncustodial parent. This entails encouraging the child to interact with the noncustodial parent, taking good faith measures to ensure that the child visit and otherwise have frequent and continuing contact with the noncustodial parent and refraining from doing anything likely to undermine the relationship naturally fostered by such interaction. In this case, the trial court did not err in holding that the Former Husband was not thwarting the Former Wife’s efforts at reunification with the children insofar as he provided evidence to support his position while the Former Wife provided none.

Child Support

The standard of review for a child support award is abuse of discretion. In this case, the trial court erred in factoring in the Former Husband’s alimony payments into child support for months where he failed to pay alimony. The appeals court reversed and remanded for a determination of the amount of alimony paid to determine an offset to the retroactive child support obligation.

Imputing Income

When imputing income, the trial court must set forth factual findings, based on cogent evidence, concerning the probable and potential earnings level, source of imputed and actual income, and adjustments to income. In this case, the trial court erred in imputing income to the Former Husband in the absence of evidence.

Case:              Clark v. Clark
Court:             First District Court of Appeal.
Trial Judge: John L. Miller.
Attorneys:      E. Jane Brehany.
Issues:            Alimony, Property Distribution.

Holding: Under Florida statutes, the date the petition for dissolution of marriage was filed is an appropriate date for classifying the parties’ assets as marital, and the date for determining value of assets classified as marital is the date, or dates, as the court deems is just and fair in the circumstances. In this case, the trial court did not err in using the petition filing date as the date for valuing a marital asset, an investment account, which was lower in value at the end of the marriage than at the beginning. The appeals court reversed that portion of the final judgment equitably distributing the parties’ marital assets and liabilities, and remanded for correct determination of the value of the asset.

Case:              Jonas v. Jonas
Court:             Fourth District Court of Appeal.
Trial Judge: Lucy Chernow Brown.
Attorneys:      Roderick V. Hannah, Eric C. Christu.
Issues:            Jurisdiction, Foreign Judgments.

Holding: Comity requires courts state to refrain from exercising jurisdiction in certain cases. When a court is confronted with an action that would involve it in a serious interference with or usurpation of this continuing power, considerations of comity and orderly administration of justice demand that the non-rendering court should decline jurisdiction and remand the parties for their relief to the rendering court, so long as it is apparent that a remedy is available there. As for the principle of priority, or where a foreign court is first to assert jurisdiction, the usual remedy in such cases is to stay the subsequent proceeding in favor of the prior proceeding. The interests of judicial economy and finality may require that subsequent actions come to an end. The appeals court affirmed and required a former spouse to return to the original jurisdiction to conclude proceedings.

Case:             Kelly v. Snietka
Court:             Fourth District Court of Appeal.
Trial Judge: Thomas Barkdull, III.
Attorneys:      Craig A. Boudreau, Scott D. Glassman, Sue-Ellen Kenny.
Issues:            Paternity, Child Support.

Holding: Under Florida Rules of Appellate Procedure, the court may review any ruling or matter occurring before filing of a notice of appeal. A notice of appeal of a final judgment does not include orders entered after the final judgment unless they are specifically appealed. In this case, the trial court did not err in taking jurisdiction to consider an order vacating a prior final judgment and a motion to disqualify a trial judge, as both were issued before the final judgment, which is under appeal.

Case:              Medina v. Haddad
Court:             Third District Court of Appeal.
Trial Judge: Marcia B. Caballero.
Attorneys:      Brandon A. Rotbart.
Issues:            Procedure.

Holding:    In deciding whether a protective order is appropriate in a particular case, the court must balance the competing interest that would be served by granting discovery or denying it. Overall, means less intrusive than the release of confidential information should be used where available. In this case, the trial court erred by ordering the Former Wife to disclose settlement agreements between the law firm to which she was contracted and third parties. Such was the property of a non-party law firm or its non-party clients. Moreover, to do so might result in a breach of confidence. The appeals court quashed the order.

Case:              Haeberli v. Haeberli
Court:             Fifth District Court of Appeal.
Trial Judge: Bob Leblanc.
Attorneys:
Issues: Contempt.

Holding:          While a person facing civil contempt sanctions is not entitled to the full panoply of due process rights afforded to a person facing indirect criminal contempt charges, he or she is nonetheless entitled to a proceeding that meets the fundamental fairness requirements of the due process clause of the Fourteenth Amendment to the United States Constitution. Such fundamental fairness includes providing the alleged contemnor with adequate notice and an opportunity to be heard. The failure to provide the Former Husband with any notice that motions for contempt would be considered justifies a reversal and a new hearing. An order finding the alleged contemnor to be in contempt shall contain a finding that a prior order of support was entered, the alleged contemnor has failed to pay part or all of the support ordered, the alleged contemnor had the present ability to pay support, and the alleged contemnor wilfully failed to comply with the prior court order. The order shall contain a recital of the facts on which these findings are based. In this case, the trial court erred when it denied the Former Husband due process by ruling on motions that had not been noticed for hearing. The appeals court reversed.

Case:              Baker v. Baker
Court:             Fifth District Court of Appeal.
Trial Judge: Bob Leblanc.
Attorneys:
Issues:    Custody.

Holding:          To succeed on a petition for a change of custody, whether permanent or temporary, the petitioner must plead and prove, AND the trial court must find on the evidence, the following:

a) that a substantial change of circumstances occurred since entry of the previous custody order, which was not reasonably contemplated when the previous order was entered; and

b) the requested change of custody is in the best interests of the child.

If the first requirement is not met, the trial court need not address the second. A modification petition must be properly pled. Failure to plead properly is fatal, such that a modification order can be reversed on that basis by an appeals court. In this case, the trial court erred in temporarily changing custody because Former Wife failed to plead and prove a substantial change in circumstances since the previous custody determination and by modifying custody at a hearing that that was not properly noticed as being for a modification proceeding.

Case:              Maguire v. Wright
Court:             Fifth District Court of Appeal.
Trial Judge: Alan A. Dickey.
Attorneys:      Sarah H. Bolinder.
Issues:            Custody.

Holding: Florida statutes set out the factors a trial court must consider in creating a parenting plan that governs each parent’s relationship with his or her minor child and the relationship between each parent with regard to his or her minor child. While separate findings as to each factor are not required to sustain a temporary award, the record must reflect that the custody determination was made in the best interest of the child. However, the appeals court has also specifically recognized a “true emergency” exception to the general rule, concluding that the normal burden on the party seeking custody to show that the custody transfer is in the child’s best interest need not be met when there is an improper removal of a minor child from the state. If a court grants permission for a parent to remove a child from the jurisdiction for a date specific, the child must be returned by that date, failing which the removal becomes improper. Based on the context in which the removal is granted, it can be construed to be an interlocutory order determining the right to custody. As such, the appeals court has jurisdiction under Florida Rules of Appellate Procedure. A further hearing may be necessary to resolve the issues of temporary shared parental responsibility and temporary timesharing in accordance with the relevant statutory criteria holding that the best interests of the child are paramount. In this case, the trial court did not err in granting temporary custody of the minor child to the Former Wife. The appeals court affirmed and remanded for an evidentiary hearing on temporary shared parental responsibility and temporary time-sharing.

Case:              Juchnowicz v. Juchnowicz
Court:             Second District Court of Appeal.
Trial Judge: Rochelle T. Curley.
Attorneys:      W. Russell Snyder, Susan J. Silverman, Cynthia L. Greene, Deborah J. Blue.
Issues:            Alimony.

Holding:     Permanent alimony is to allow the requesting spouse to maintain the standard of living established by the parties during the marriage. In viewing the totality of the circumstances, one spouse should not be "shortchanged." Each party's standard of living must come as close as possible to the prior lifestyle, given the available financial resources. An award of permanent alimony is reviewed pursuant to the abuse of discretion standard. An award of permanent periodic alimony typically terminates upon the death of the obligor. However, Florida statutes allows a trial court to order an alimony obligor to purchase or maintain a life insurance policy to the extent necessary to protect an award of alimony.

In this case, the trial court erred in making the alimony award without adequate consideration of the substantial income disparity between the parties. The award was not commensurate with the parties' marital standard of living and created a gross disparity. Nor was the award secured. The appeals court reversed the award of permanent periodic alimony and remanded for proceedings and to mandate the Husband to secure the alimony award with a life insurance policy.

Case:              Winton v. Saffer
Court:             Third District Court of Appeal.
Trial Judge: George A. Sarduy.
Attorneys:      Chantale L. Suttle, Holly A. Aliprandi, John B. Agnetti, Armand Murach
Issues:            Arrearages.

Holding: When considering a petition regarding arrearages, the trial court must make its findings based on substantial, competent evidence showing that the payor spouse failed to make support payments as required despite an apparent ability to do so. The record must discloses the calculations and evidence establishing the commencement of the arrearages, the total unpaid balance, and the computation of the purge amount. As to the purge amount, the court must make a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions. The amount itself must be supported by substantial, competent evidence. Relief exceeding the amount which is pled is impermissible.

In this case, the trial court erred when it awarded an amount in excess of the amount calculable on the record and which exceeded the amount recoverable, based on the Former Wife’s pleadings. While there was substantial, competent evidence to support the court’s findings that the Former Husband failed to make support payments as required, despite an apparent ability to do so, the record did not disclose the calculations and evidence establishing the commencement of the arrearages, the total unpaid balance, and the computation of the purge amount. The appeals court reversed in part and remanded for further proceedings.

Case:              P.C. v. D.C.F. and Guardian ad litem
Court:             Fourth District Court of Appeal.
Trial Judge: Kenneth L. Gillespie.
Attorneys:      Denise E. Kistner, Pamela Jo Bondi, Carolyn Schwarz.
Issues:            Parental Rights.

Holding: When considering the termination of parental rights, the court must do so on the basis of:

a) competent, substantial evidence of the grounds alleged by the Department of Children and Families under Florida statute;

b) upon making statutorily-required findings of fact and conclusions of law; and

c) ensuring that the termination of parental rights is not the least restrictive means to protect the child from harm.

The termination order should address which grounds form the basis for the termination.

In this case, the trial court erred in making the termination order which did not specify the grounds for the basis on termination in that competent, substantial evidence did not support one of the grounds alleged by the D.C.F. under Florida statute for termination. However, there was such evidence under the remaining allegations. The appeals court affirmed the termination of parental rights, but remanded with instructions to the court to amend the final judgment to indicate in its conclusions of law that the termination was based on the grounds alleged and substantiated.

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Florida Divorce & Family Law Update for Week Ending February 8, 2015

February 10, 2015

Case:    Moore v. Moore
Court: Second District Court of Appeal.
Trial Judge: Paul L. Huey.
Attorneys:     Virginia R. Vetter, Lorena L. Kiely.
Issues:           Alimony, Child Support.

Holding: For the purpose of determining the amount of income that is attributable to a spouse in computing alimony, Florida law defines "income" as any payment to an individual, including wages, salary, commissions and bonuses, compensation as an independent contractor, worker's compensation, disability benefits, annuities, pensions, dividends, interest, royalties, trusts, and any other payments, made by any person, private entity, federal, state government, or local government. An award of alimony must be based on the income that is available to the party (ie; net monthly income).

Additionally, in calculating a party's monthly income, business expenses must be deducted from the party's gross income. In determining the amount of income that is attributable to a parent in computing child support, Florida statute defines "gross income" to include
business income from self-employment, partnership, close corporations, and independent contracts. 'Business income' means gross receipts minus ordinary and necessary expenses required to produce income. A trial court's determination of a party's income has to be supported by substantial, competent evidence. Where there is a significant dispute in a party's income, meaningful appellate review is hampered by the absence of findings as to how the trial court determined the income amount.

In this case, the trial court abused its discretion in determining the Former Husband's monthly income because it failed to consider his business expenses. Although the trial court found that the Former Husband's testimony lacked credibility and that his business expenses were "grossly inflated," the trial court failed to give the Former Husband credit for any of his business expenses. The appeals court reversed the financial aspects of the final judgment and remanded for determination of the Former Husband's net monthly income and the amount of permanent alimony and child support to be awarded.

Case:              Henderson v. Henderson
Court:             Fifth District Court of Appeal.
Trial Judge: John M. Alexander.
Attorneys:      Beth M. Terry, Reese J. Henderson, Jr..
Issues:            Custody, Child Support, Attorney’s Fees.
Holding:

Custody Order

The standard of review for the trial court's findings and determination regarding primary parental responsibility is abuse of discretion. A trial court's findings regarding the best interest of the child must be supported by competent, substantial evidence. Awarding sole parental responsibility to one parent is inappropriate without a specific finding that shared responsibility would be detrimental to the child. In this case the trial court erred regarding the custody order as it failed to contain a specific finding that shared responsibility would be detrimental to the children.

Attorney’s Fees

Florida statutes, expressly requires the court to make findings regarding each party's financial needs and ability to pay. Where an order denying attorneys' fees fails to contain sufficient factual findings to facilitate meaningful appellate review of the trial court's decision, the appellate court must reverse and remand for the trial court to make further findings. The standard of review for an award or denial of attorney's fees in a dissolution of marriage proceeding is abuse of discretion. In this case, the trial court further erred when it denied attorneys' fees without findings as to the parties' needs, abilities to pay, and misconduct. Here, the evidence presented a clear disparity in income between the parties, which was not considered or referred to in the order.

Child Support

a. Trial court orders modifying child support are reviewed for an abuse of discretion. Florida statutes requires that all child support orders and income deduction orders entered on or after October 1, 2010, must provide for child support to terminate when a child turns eighteen years of age, if the child is between the ages of 18 and 19 and still in high school, or subject to an agreement between the parties. The trial court erred in awarding continuing child support obligations when it failed to provide an automatic decrease in child support once the parties’ older child reached majority. Further, a Settlement Agreement between the parties as well as a prior Judgment and the Custody Order all contemplated reducing support payments when the older child reached majority and terminating the payments when the younger child reached majority.

b. A trial court must reduce the support obligation of a parent who has visitation for a "substantial amount of time" with a child. Florida statutes, provides that a substantial amount of time means that a parent exercises time-sharing at least 20 percent of the overnights of the year. The trial court erred in its calculation of Former Wife's temporary child support obligation because it failed to credit her with any overnights.

The appeals court reversed the custody order, award as to attorney’s fees, continuing child support obligations, and temporary child support obligation.

Case:              Kemp & Associates v. Chisholm et al
Court:             Fifth District Court of Appeal.
Trial Judge: C. McFerrin Smith, III.
Attorneys:     Richard L. Pearse, Jr., Jonathan D. Kaney III, Jonathan D. Kaney Jr..
Issues:           Adoption, Retroactivity.

Holding:       While due process generally requires notice of adoptions to putative biological fathers, such notice is not an absolute right. In Florida, the unmarried father must take some statutorily mandated steps to protect his inchoate due process rights. An unwed father obtains a protected interest if he establishes a full commitment to the responsibilities of parenthood and participates in the upbringing of his child. Under the Full Faith and Credit Clause, Florida is obligated to recognize judgments, including adoption judgments, which have been validly rendered in the courts of sister states, an exception exists when the laws of the foreign state seriously depart from Florida's core values.

The retroactive application of case law holding that notice to an unwed father of the pending adoption is required pursuant to the United States Supreme Court’s decision of Stanley v. Illinois, 405 U.S. 645 (1972). However, full retroactive effect in cases still open on direct review could invalidate an adoptions finalized many years ago. This conflicts with intent to create permanence with adoption. Adoptive children have a right to permanence in their adoptive placements, as adoptive parents have an interest in retaining custody of a legally adopted child.

In this case, the trial court erred as it refused to recognize a 1961 Texas adoption judgment under which the claimant was adopted and the putative biological father, now deceased. The trial court decision would permit the claimant here, and an adopted child in general, to inherit from a biological father decades after the adoption was finalized. The effect of the trial court’s decision calls into question the validity of adoption judgments under the laws of Florida and other states that did not require notice to putative fathers at the time of the child's adoption. This would lead to increased litigation and disruptions to many families, both adoptive and biological. Public policy requires that adoption decrees that have been entered without the consent of the natural father must be honoured as family and financial decisions are, and have been, made in reliance on the validity of those decrees. Those reliance interests foreclose retroactive application of the above-noted ruling.

The appeals court reversed the trial court’s decision to refuse a Texas adoption judgment from 1961 and remanded with directions to enter judgment in favour of the opposing party.

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Florida Divorce & Family Law Update for Week Ending February 1, 2015

February 2, 2015

Case:              Rudnick v. Rudnick
Court:             Fourth District Court of Appeal.
Trial Judge: Martin H. Colin.
Attorneys:      Robin Bresky, Jonathan Mann, Seth E. Schneiderman.
Issues: Child Support.

Holding:        A trial court can include a party’s bonus, or other form of elevated income, when calculating child support obligations if there is evidence establishing the bonus, or elevated income, is regular and continuous. In this case, the trial court erred when it relied strictly on the Former Husband’s total annual income, including the bonus, for the previous year when calculating his child support obligation when there was uncontroverted evidence that the bonus was due to a specific non-recurring event (i.e., the 2012 presidential election). The appeals court reversed and remanded for the trial court to make additional findings consistent with this opinion.

Case:              Gonzalez v. Parisi
Court:             Fourth District Court of Appeal.
Trial Judge: Renee Goldenberg.
Attorneys:      Jacqueline R. Hernandez-Valdes, Claudia Moncarz.
Issues:            Child Support, Foreign Judgment.

Holding:        A petitioner seeking to domesticate and enforce a foreign decree or judgment pertaining to child support obligations and arrearages must present a trial court with competent, substantial evidence in support of his or her claims. In this case, the trial court erred in finding that the Former Wife’s assertions regarding a purported document providing for the payment of child support, with annual indexed increases, was the same agreement given effect in a foreign decree, when there was no competent, substantial evidence on point. The appeals court reversed as to the trial court’s order granting the petition to domesticate because of the lack of competent substantial evidence of the document purporting to create the support obligation.

Case:              J.A.I and J.K.C. v. B.R.
Court:             Second District Court of Appeal.
Trial Judge: R. Thomas Corbin.
Attorneys:      Luis E. Insignares, Robert L. Donald.
Issues:            Paternity.

Holding:        Orders compelling DNA testing to establish paternity are appropriate for certiorari review. Florida statute provides the procedures to be used in determining paternity when children are born out of wedlock. These include establishing that a signed and notarized voluntary acknowledgment of paternity creates a rebuttable presumption of paternity. Any challenge to this voluntary acknowledgment of paternity must be commenced before the sixty (60) day limitation period expires, after which, this acknowledgment of paternity becomes an establishment of paternity, to be challenged in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger.

A man who believes that he may be the father of a child may bring an action to determine the paternity of the child when paternity has not been established by law or otherwise. Paternity would be established "by law" when there has been an adjudication of paternity or by the filing of affidavits or stipulation acknowledging paternity as provided by Florida statute. Paternity would otherwise be established when a child is born to an intact marriage and recognized by the husband and the mother as being their child. In such a case, the husband would be the child's legal father to the exclusion of all others. Under any other interpretation, a husband could never be more than a presumptive father absent an adjudication of paternity.

Courts have extended this principle courts to children whose parents are both listed on the birth certificate at the time of birth and who were married two months later. However, where a mother married her husband and they signed the acknowledgement of paternity after the challenger had filed his paternity action, the acknowledgement of paternity created only a rebuttable presumption of paternity.

In this case, the trial court erred when it departed from the essential requirements of the law in the Petitioner’s motion for genetic testing despite the fact that he was precluded from bringing a cause of action to challenge the paternity of the child. The Petitioner was barred insofar as he filed outside the required sixty-day limitation period and by virtue of the fact that the Mother and her Husband signing an acknowledgment of paternity. The appeals court granted the petition for writ of certiorari and quashed the trial court's order requiring the parties to submit to genetic testing.

Case:              Card v. Card
Court:             Second District Court of Appeal.
Trial Judge: Olin W. Shinholser.
Attorneys:      Mark A. Sessums, Lauren E. Jenson.
Issues:            Attorney’s Fees.

Holding:        The appeals court maintains jurisdiction over trial court’s orders capping the amount of attorney’s fees recovered in dissolution proceedings. If a party agrees to the methodology used by the trial court in determining the award, the award will likely be affirmed, considering all other aspects are properly determined. Under the invited-error doctrine, a party may not make or invite error at trial and then take advantage of the error on appeal.

In this case, the trial court did not err in making its determination as to matching attorney’s fees without making factual findings as to the need of the Former Wife and the Former Husband’s ability to pay. Specifically, at trial, the Former Wife argued that the court did not need to assess reasonableness because of a Joint Stipulation Provision between the parties as to fees, and particularly that they would match. On appeal , the Former Wife sought an order beyond the scope of the Joint Stipulation Provision on the ground that the trial court erred in failing to make factual findings as to her need or the Former Husband’s ability to pay attorney's fees and costs.   The appeals court determined that the trial court did not err in awarding a final amount of attorney's fees on a matching basis without specific factual findings about a need for attorney's fees, the corresponding ability to pay, and the reasonableness of the award given the Former Wife’s position at trial, which relied on the matching provision. She was not now allowed to argue against the position upon which she previously relied.

Case:   Spreng v. Spreng et al
Court:             Fifth District Court of Appeal.
Trial Judge: Dawn D. Nichols.
Attorneys:      Shimene A. Shepard-Ryan, Horace Smith, Jr., Sheila M. Ennis.
Issues:            Attorney’s Fees.

Holding:          In making an award for attorney’s fees and costs, a trial court is required to make written findings of fact as to the attorney’s reasonable hourly rate and the reasonableness of the hours expended. Failure to do so constitutes reversible error. The order must also be based on factual findings, supported by substantial and cogent evidence regarding the recipient party’s financial circumstances and the payor’s ability to pay. Finally, a party must properly preserve an error for appeal by filing a motion for rehearing, or taking other necessary and timely procedural steps. Failure to do so can prove fatal to an appeal.

In this case, the trial court did not err in failing to consider the Former Wife’s ability to pay her own legal fees and costs and in failing to set forth the reasonableness of the time expended and the hourly rate used to calculate the fee. The order under review detailed the history of the marriage and the present financial circumstances of the parties and established that the Former Husband had a significant net worth and income stream while the Former Wife did not. The appeals court affirmed the trial court order despite the fact that the written order did not clearly consider the Former Wife’s financial circumstances and needs as well as Former Husband’s ability to pay. Despite this deficiency in its factual findings, the error was not preserved for appeal because the Former Husband failed to file a motion for rehearing.

Case:              Waheed v. Brummer
Court:             Fifth District Court of Appeal.
Trial Judge: Clyde E. Wolfe.
Attorneys:      Robert S. Walton lll.
Issues:            Attorney’s Fees.

Holding:          Objections raised on appeal must be the same as those raised below. In order to be preserved for appeal, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation. In this case, the trial court did not err in taking judicial notice of affidavits filed by the opposing parties in support of the requested attorney’s fees. Doing so did not effect a situation where the trial court made an award of attorney’s fees despite a lack of competent, substantial evidence to support its findings as to the amount of hours reasonably expended and the reasonableness of the hourly rate and the fact that a witness was not properly sworn in at trial. The appeal was dismissed as the appellant failed to preserve any of the arguments for appeal. He did not object to the trial court taking judicial notice of the two affidavits, both of which were sworn, or to the unsworn testimony of the particular witness. The appeals court noted, in taking into consideration the numerous proceedings initiated by the self-represented appellant related to the overall dissolution proceedings, that it was “close to reaching” a point where it would prohibit him from filing additional appeals without being represented by a member of the Florida Bar.

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