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 Law Update for Week Ending August 14, 2016

August 17, 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:             Donovan v. Donovan
Court:            First District Court of Appeal.
Trial Judge: John "Jay" Gontarek.
Attorneys:     Michael T. Webster, E. Jane Brehany, R. Stan Peeler.
Issues:           Alimony.

Holding: A trial court can explicitly state that it “retains jurisdiction to enter whatever other orders which may be required,” including for modification. A nominal award of alimony preserves the trial court’s jurisdiction to revisit the matter in the future. In this case, the trial court did not err when it entered a nominal alimony award to retain jurisdiction, but that was not necessary to do because jurisdiction was already retained when the court stated so. The appeals court affirmed.

Case:            Chandler v. Kibbie
Court:            First District Court of Appeal.
Trial Judge: Elizabeth A. Senterfitt.
Attorneys:     Samuel S. Jacobson, Renae J. Kenny.
Issues:           Attorney’s Fees.

Holding: In making an award of attorney’s fees, a trial court shall make factual findings regarding the total number of hours expended by the party’s attorney, the hourly rate, and the reasonableness of the fee. In this case, the trial court erred in failing to make certain findings relating to the reasonableness of the award. The appeals court reversed.

Case:             Palmer v. Palmer
Court:            First District Court of Appeal.
Trial Judge: John Miller, David Rimmer.
Attorneys:     Ross A. Keene, Kim Anthony Skievaski.
Issues:           Attorney’s Fees.

Holding: Under Florida Statutes (2011), the court may, after considering various factors, including the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees. The financial resources of the parties are the primary factor to be considered, but the other relevant circumstances include the scope and history of the litigation; the duration of the litigation; the merits of the respective positions; whether the litigation was brought or maintained primarily to harass (or whether a defense was raised mainly to frustrate or stall); and the existence and course of prior or pending litigation. There is no authority for denying fees solely based on the failure to accept an offer of settlement. In this case, the trial court erred when it declined to award attorney’s fees to the Former Wife because she rejected an offer of settlement. The court misapplied the law. The court should only exercise the power to reduce fees when it would be inequitable not to do so after a review of all circumstances. The appeals court reversed and remanded to the trial court to re-address fees evaluating all pertinent considerations and not just the rejection of the settlement offer.

Case:             Ngyuen v. Ngyuen
Court:            First District Court of Appeal.
Trial Judge: Linda F. McCallum.
Attorneys:     Beth M. Terry, Carin E. Maxey.
Issues:           Equitable Distribution.

Holding: A trial court’s ruling on equitable distribution is reviewed for an abuse of discretion. An appellate court must determine whether the trial court’s order is supported by competent, substantial evidence. A trial court errs in attributing gross rental income to a party when evidence of expenses is present. In this case, the trial court erred in its allocation of rental income in devising an equitable distribution scheme which failed to account for the record evidence of expenses associated with the properties (including mortgage payments). The appeals court reversed and remanded.

Case:              N.A.G. v. J.L.G.
Court:            Second District Court of Appeal.
Trial Judge: Patrice W. Moore.
Attorneys:     Deborah L. Thomson, Ingrid Anderson.
Issues:           Parental Rights.

Holding: Florida Statute defines abandonment as, “a situation in which the parent or person having legal custody of a child, while being able, makes little or no provision for the child's support or makes little or no effort to communicate with the child, which situation is sufficient to evince an intent to reject parental responsibilities.” Abandonment is absolute, complete, and intentional and must be established by clear and convincing evidence. Termination may not be based on involuntary abandonment. In this case, the trial court incorrectly found that the Mother abandoned her children. Specifically, the trial court erred as a matter of law when it failed to rely on record evidence to support the finding of abandonment. It further erred by misapplying the statutory definition of abandonment. In particular, the evidence was not legally sufficient to support a finding that the Mother's actions evinced a settled purpose to forgo and relinquish all parental responsibilities. The appeals court reversed.

Case:             Loza v. Marin
Court:            Second District Court of Appeal.
Trial Judge: Catherine L. Combee.
Attorneys:     Javier D. Alvarez, Jean Marie Henne.
Issues:           Child Support.

Holding: Generally, the legal duty of a parent to support his or her child ceases at the age of majority. Child support orders terminate upon a child reaching majority, unless statutory exceptions apply or the parties agree otherwise. While a child support order is in force, a court has continuing jurisdiction to modify under a variety of circumstances but only during the period provided for support. Florida courts have grappled with whether or not a petition may be used to extend support for an incapacitated child beyond the age of majority even if the petition has been filed after the support obligation has terminated. The crucial issue is whether a child's continuing dependence was adjudicated before the child reached the age of majority. In this case, the trial court erred in denying the Former Husband’s petition to modify child support and the allowance of the Former Wife's counter-petition for modification of child support. The Former Wife’s counter-petition was untimely as it was made after the child turned 18 and after the parties’ MSA. As such, the trial court lacked jurisdiction to extend the Former Husband's child support obligation beyond the dependent child's eighteenth birthday. The appeals court reversed and remanded.

Case:             J.P. v. V.P.
Court:            Fourth District Court of Appeal.
Trial Judge: James L. Martz.
Attorneys:     Andrew A. Holness, Marie Calla Quartell.
Issues:           Child Support.

Holding: A post-disposition order that failed to comply with Florida Rules of Juvenile Procedure as to contents of fact and law may be remanded for the trial court to make such necessary findings. In this case, the trial court erred in an order with implemented a visitation schedule that did not contain specific findings of fact and conclusions of law as required by Florida Rules of Juvenile Procedure. The appeals court remanded.

Case:             Beckford v. Drogan
Court:            Fourth District Court of Appeal.
Trial Judge: Karen M. Miller.
Attorneys:     Rhea P. Grossman, Lydia A. Worden, Celia E. Henry.
Issues:           Paternity.

Holding: Under Florida Statutes, the plaintiff in for a paternity action has a choice of venue and the defendant must prove that the venue selection is improper. A party may have commenced proceedings for one issue in one venue and the other party for a different issue in another. The rules endorse the principle of placing related matters before the same family court judge unless impractical. It is then up to the courts to determine the application of rules and venue. In this case, the trial court did not err when it determined that the Mother did not establish that the Father’s venue choice was improper and maintained the venue on the issue of paternity, even though she had already commenced child support proceedings at another. The appeals court affirmed the order but without prejudice to the court considering a transfer based upon the convenience of the parties and witness, or to unify the proceedings with respect to the child, pending in two different counties.

Case:             Palmer, Jr. v. Palmer
Court:            Fifth District Court of Appeal.
Trial Judge: Kellie J. Miles.
Attorneys:     Therese M. Truelove, Douglas A. Kneller, Steven J. Guardiano.
Issues:            Alimony.

Holding: An order requiring a spouse to obtain a life insurance policy as security for an alimony award must be supported by record evidence, and the order must include findings as to the cost of insurance and any special circumstances justifying the need for the policy. Failure to make specific findings to support the award is reversible error. In this case, the trial court erred in not making the requisite findings. Other than the Former Wife’s request for insurance in her initial petition, the record was devoid of any testimony or evidence regarding a policy or any special circumstances justifying its requirement. The appeals court reversed and remanded for the trial court to make sufficient findings of fact to support the award or remove the insurance requirement from its order.

Case:             Gross v. Zimmerman
Court:            Fourth District Court of Appeal.
Trial Judge: Lisa S. Small.
Attorneys:     Cynthia L. Greene, Tracy Belinda Newmark, Natalie Suzanne Kay.
Issues:           Child Support, Paternity.

Holding: The standard of review for a child support award is abuse of discretion. A court will begin its consideration of child support awards with the statutory child support guideline amounts. The guidelines presumptively establish the amount of awards in an initial proceeding or in a proceeding for modification. The trier of fact may also make an award which varies, plus or minus 5%, from the guideline amount, after considering all relevant factors, including the needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent, only upon a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate. In this case, the trial court did not err in its denial of the Father’s downward deviation from the guideline child support amount since he did not demonstrate reversible error in the trial court’s decision. Nor did it err in failing to order him to order child care costs, temporary support or attorney’s fees as the Mother either failed to provide sufficient evidence. The appeals court affirmed on those points. The trial court erred, however, when it abused its discretion by imposing, in a parenting plan, an additional financial obligation requiring the Father to pay almost all of the child’s extracurricular activities, over and above the maximum amount of child support, where there was no record support for the inclusion of this additional financial obligation. Specifically, there was no evidence that the child was involved in any extracurricular activities, and the trial court’s open-ended award could subject the Father to the expense of any extracurricular activity in which the Mother may involve the child without any input by the Father or regard as to its cost. The appeals court reversed.

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Florida Divorce and Family Law Update for 2 Weeks Ending August 7, 2016

August 9, 2016

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.

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Florida Divorce and Family Law Update for Week Ending July 24, 2016

July 27, 2016

Case:              Bachman v. McLinn
Court:            Second District Court of Appeal.
Trial Judge: John S. Carlin.
Attorneys:     Matthew S. Toll, Stephen N. McGuire, II, Renee Binns.
Issues:            Child Support.

Holding: A trial court can only modify support payments prospectively (from the date a petition for modification is filed). In the case, the trial court erred in granting the Former Husband retroactive credit for child care costs to a date prior to his petition for this relief. The appeal court reversed the relevant portion of the order.

Case:              Back v. Back
Court:            Second District Court of Appeal.
Trial Judge: Catherine M. Catlin.
Attorneys:     Arnold D. Levine, Robert H. Mackenzie, Allison M. Perry.
Issues:            Equitable Distribution.

Holding: Under Florida Statutes (2012), a trial court may not impute income to a parent whose unemployment is involuntary. Imputing income to an unemployed parent for the purposes of child support is a two-step process. Firstly, the court must determine whether the parent's unemployment is voluntary. If so, the court then determines what level of income to impute. When there is no evidence that a parent is voluntarily unemployed, imputing income is error. In this case, the trial court erred in imputing income to the Husband for the purpose of calculating child support in the absence of evidence in the record that he was voluntarily unemployed. The appeals court reversed and remanded.

Case:              S.R. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: Hope T. Bristol.
Attorneys:     Brett P. Rogers, Pamela Jo Bondi, Carolyn Schwarz.
Issues:           Guardianship, Termination.

Holding:        Under Florida Statutes, when a trial court places a minor child in a permanent guardianship, it must, among other things: 1. List the circumstances or reasons why the child’s parents are not fit to care for the child and why reunification is not possible by referring to specific findings of fact in its order adjudicating the child dependent or by making separate findings of fact. 2. Specify the frequency and nature of visitation or contact between the child and parents. In this case, the trial court erred when it limited the Father to supervised visitation in the absence of the required statutory findings in the written order. Specifically, the trial court made no specific findings in its written order that reunification would endanger the children’s physical, mental, or emotional wellbeing. Instead, the order generally concluded that, “there is a continual need for out-of-home placement to ensure the children’s health, safety and wellbeing,” and that reunification “would be contrary to the welfare and not in the best interest of the children.” Such generic language was insufficient to satisfy the requirements of the statute. The order further fails to specify the frequency of the Father’s supervised visitation with the children. The appeals court reversed and remanded.

Case:              Fortunoff v. Morris
Court:            Fourth District Court of Appeal.
Trial Judge: David E. French.
Attorneys:     Peter Ticktin, Kendrick Almaguer, Christine M. Deis, Peter L. Gladstone, Heather L. Apicella.
Issues:            Alimony.

Holding: Trial courts have broad discretion in awarding temporary relief. A high degree of deference is afforded such decisions, except under the most compelling of circumstances. In making an award of temporary alimony, a trial court must consider the needs of the spouse requesting the alimony and the ability of the other spouse to pay alimony, based on competent, substantial evidence. In this case, the trial court erred in its award of temporary alimony in the absence of competent, substantial evidence. The appeals court reversed and remanded.

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Florida Divorce and Family Law Update for 4 Weeks Ending July 17, 2016

July 19, 2016

Case:             Sherlock v. Sherlock
Court:            Fourth District Court of Appeal.
Trial Judge: F. Shields McManus.
Attorneys:      Karen O’Brien Steger, Lori I. Steger, Michael J. Mortell.
Issues:            Alimony.

Holding: A trial court’s decision on whether to award permanent alimony is reviewed for abuse of discretion. So is a court’s determination of whether certain assets should be available sources of income. Permanent periodic alimony is intended to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties. The primary factors for a court to consider when awarding alimony are the respective spouses’ need and ability to pay. There is a rebuttable presumption that permanent alimony is appropriate after a long-term marriage. The criteria to be used in establishing a spouse’s need for alimony include the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties’ estates. However, the parties’ standard of living during the marriage does not control other considerations. The purpose of permanent alimony is not to divide future income to establish financial equality. A court should not require a spouse in need of alimony to deplete or invade capital assets to maintain his or her standard of living. However, in ruling on a request for alimony, a court must consider all sources of income available to either party, including income available to either party through investments of any asset held by that party. When a spouse with under-earning investments has the ability to generate additional earnings—without risk of loss or depletion of principal—but fails to do so, it is fair for a court to impute a more reasonable rate of return to the under-earning assets, comparable to a prudent use of investment capital. A trial court should not impute income from the home that a spouse occupies after the divorce.

In this case, the trial court did not abuse its discretion in denying the Former Husband’s request for permanent periodic alimony. Although the trial court should not have imputed income to the husband based on his current residence, the trial court did not abuse its discretion in imputing income to him from his real estate and financial holdings, even though those assets included non-liquid assets. The trial court properly imputed a reasonable rate of return to the Former Husband’s real estate and financial assets. While the trial court should not have imputed income based on the equity in his residence, this equity represented only a small portion of his net worth and accounted for a nominal amount of annual income that the trial court imputed to him. The trial court’s imputation of income from the equity in his current residence was a harmless error under the facts of this case. The appeals court affirmed.

Case:             Slaton v. Slaton
Court:            Second District Court of Appeal.
Trial Judge: Susan St. John.
Attorneys:      Ingrid Anderson, Thomas J. Donnelly.
Issues:            Custody.

Holding: A trial court may enter an order temporarily modifying child custody, even without notice to the opposing party, if there is evidence of a bona fide emergency situation. A trial court may not modify primary residential custody based on a parent's behavior without also identifying the steps that the parent must take to restore the original custody arrangement. In this case, the trial court did not err in granting temporary residential custody to the Father as there was evidence of domestic violence between the Mother and her new partner. This evidence was sufficient to support the trial court's finding that an emergency situation existed and its conclusion that modification of the Mother's custody of and visitation with the children was necessary. The trial court erred, however, as its order did not provide a timesharing schedule for the Mother and the children, and it did not delineate the actions required of the Mother if she wished to regain primary residential custody. Nor did it contain any support for the proposition that zero timesharing for the Mother is the appropriate result. The appeals court affirmed on temporary residential custody and reversed and remand for further proceedings.

Case:             E.M. & B.O. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: Stacey Schulman.
Attorneys:      Jeffrey B. Levy, Pamela Jo Bondi, Carolyn Schwarz, Kelley Schaeffer.
Issues:            Termination of Parental Rights.

Holding: In this case, the trial court did not err in granting the Department’s petition for termination of parental rights, based on only 2 of several grounds in the pleadings. Those grounds were that the Father was incarcerated and would be for a significant portion of the child’s minority; and continuing the parental relationship with the Father would be harmful to the minor child.

However, the judgment contained language indicating that termination was based on all the grounds alleged in the petition. The appeals court remanded for correction of the scrivener’s error.

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

Holding: In this case, the trial court did not err in denying the Father’s motions for a new trial and rehearing, despite his assertions that he was not afforded an opportunity to present his evidence. The trial court did err, however, in ordering the Father to pay arrearage in child support when neither the magistrate’s report (which the trial court approved) nor the final judgment, stated the amount in arrears. The appeals court affirmed on denial of the Father’s motions (but without prejudice to permit him to bring a new motion) and remanded for the trial court to determine the arrearage and amend the final judgment to specify the amount.

Case:             Holaway v. Holaway
Court:            Fifth District Court of Appeal.
Trial Judge: Mark J. Hill.
Attorneys:    John N. Bogdanoff, Shannon McLin Carlyle, Earle W. Peterson, Jr., Barry P. Burnette, Matthew Capstraw.
Issues:           Child Support, Equitable Distribution.

Holding: Child Support
In determining an award of child support, a trial court errs if it fails to explain the calculations used to arrive at the parties’ imputed incomes. In this case, the trial court erred when it imputed income to Husband without explaining its calculations.

Equitable Distribution

A trial court abuses its discretion when it omits marital liabilities from the equitable distribution. In this case, the trial court erred when it vallued the parties’ property as at the date of filing the petition for dissolution, but then used a different valuation date for the parties’ business interests. Further, the trial court erred when it awarded post-valuation profits from business assets to the Wife after it specifically found that income generated after valuation was passive.

The appeals court reversed as to the calculation of child support, equitable distribution, and award of post-valuation profits.

Case:             Everett v. Everett
Court:            First District Court of Appeal.
Trial Judge: Mary Polson.
Attorneys:      Curtis W. Brannon.
Issues:            Contempt.

Holding: In deciding a motion for a stay of a contempt order, a lower tribunal shall consider the likelihood of prevailing on appeal and irreparable harm to the appellant if the motion is not granted. An appeals court will review a lower tribunal’s decision on a motion to stay under the “highly deferential” abuse of discretion standard. In this case, the trial court did not err when it ruled on the Former Wife’s motion for contempt against the Former Husband for failure to pay child support without first hearing his pending petition for modification while also not making a detailed finding that he could afford the purge. It was open to the trial court to make such a ruling as it had the benefit of all the evidence before it. The appeals court affirmed.

Case:             Freiha v. Freiha
Court:            First District Court of Appeal.
Trial Judge: Charles W. Arnold, Jr., Steven M. Fahlgren.
Attorneys:     William S. Graessle, Jonathan W. Graessle, Rebecca Bowen Creed, Dale G. Westling, Sr..

Issues: Parenting, Child Support, Alimony.

Holding: In this case, the trial court erred when it ordered final dissolution of marriage in the absence of a parenting plan which included a timesharing schedule and regarding the amount of life insurance coverage which the Former Husband was ordered to maintain as it lacked a sufficient evidentiary basis (the record bore no evidence of the availability or cost of the insurance or his ability to pay that unknown cost). The appeals court reversed on the life insurance requirement and to allow the trial court to order timesharing and recalculate the child support obligation.

Case:             Dunkel v. Dunkel
Court:            Second District Court of Appeal.
Trial Judge: Catherine M. Catlin.
Attorneys:     Cynthia L. Greene, Allen Dell, Michelle Ralat Brinner, Michael L. Lundy, Mark F. Baseman.
Issues:           Equitable Distribution, Alimony.

Holding: A temporary alimony award pending the final judgment in the lower court is merged in the judgment and does not continue after the judgment. In this case, the trial court erred when it ordered the continuation of temporary alimony remain in effect until the post-dissolution equitable distribution transfers were effected. A temporary mediation agreement between the parties on point terminated upon entry of the final judgment. The appeals court reversed the award of temporary alimony and remanded.

Case:             Fischer v. Fischer
Court:            Fourth District Court of Appeal.
Trial Judge: Jeffrey Dana Gillen.
Attorneys:      John D. Boykin, Matthew S. Nugent, Adam M. Zborowski.
Issues:            Alimony.

Holding:         An involuntary dismissal may not be entered before the plaintiff has completed the presentation of his evidence. In actions involving numerous counts, dismissal of the entire case is proper only if the plaintiff has failed to establish a prima facie case as to each of the counts. In this case, the trial court erred in:

a.     involuntarily dismissing the Former Husband’s entire petition when he had not finished presenting his case-in-chief. The trial court denied the Former Husband his due process.

b.     dismissing the Former Husband's entire multi-count petition based solely on his inability to establish one ground for the relief sought (modification).

The appeals court reversed and remanded.

Case:             Pachter, Jr. v. Pachter
Court:            Fourth District Court of Appeal.
Trial Judge: Jeffrey Dana Gillen.
Attorneys:      John F. Schutz, Leonel R. Plasencia, Curt Sanchez.
Issues:            Equitable Distribution.

Holding:         In this case, the trial court in:

a.     requiring the Former Husband, by an unequal distribution of marital assets, to make a payment to the Former Wife for income taxes assessed as a result of dissipation of marital assets (fraudulent IRA withdrawals). The Former Husband paid the taxes when the withdrawals were made from the IRA account so the final judgment constitutes a “double” payment for the taxes.

b.     b. requiring him to pay certain expenses of the marital home without credit for one-half of the expenses from the sale proceeds.

The appeals court reversed: (1) the trial court’s double imposition of income tax consequences; and (2) the order requiring the Former Husband to pay all of the expenses of the marital residence pending its sale, without reimbursement for one-half of those expenses from the sale proceeds.

Case:             Smith v. Smith
Court:            Fourth District Court of Appeal.
Trial Judge: David E. French.
Attorneys:      Jennifer S. Carroll.
Issues:            Right to Marry.

Holding: The appeals court denied a motion for rehearing and rehearing en banc and granted a motion to certify a question of great public importance being: “Where the fundamental right to marry has not been removed from a ward under section 744.3215(2)(a), Florida Statutes, does the statute require the ward to obtain approval from the court prior to exercising the right to marry, without which approval the marriage is absolutely void, or does such failure render the marriage voidable, as court approval could be conferred after the marriage?” The majority and dissent disagree on the effect of a statute which restricts the fundamental right to marr

Case:             Jaeger v. Jaeger
Court:            Fourth District Court of Appeal.
Trial Judge: Krista Marx.
Attorneys:      Elizabeth J. Kates, Lisa Marie Macci, John F. Schutz.
Issues:            Equitable Distribution.

Holding: The determinations of a trial court within a dissolution judgment for abuse of discretion must be supported by competent evidence. In this case, the trial court erred in the award of equitable distribution as its determinations were not supported by competent, substantial evidence. Specifically, per the record, the parties stipulated a value for a marital asset portion of a retirement account that the trial court valued otherwise. The final judgment should have reflected the value agreed upon by the parties. The appeals court reversed for recalculation of the equitable distribution.

Case:             Potchen v. Potchen
Court:            Fifth District Court of Appeal.
Trial Judge: Jessica J. Recksiedler.
Attorneys:
Issues:            Domestic Violence Injunction.

Holding: An incarcerated party has a right to be heard in civil matters if the party has brought to the court's attention his or her desire to appear personally or telephonically. In this case, the trial court erred in failing to allow the Appellant to appear by telephone from prison. In so doing, the trial court denied him due process. The appeals court reversed and remanded.

Case:    Bass v. Bass
Court:            First District Court of Appeal.
Trial Judge: David Rimmer.
Attorneys:     Stephen A. Pitre, Trevor A. Thompson, Laura E. Keene.
Issues:            Custody, Due Process.

Holding: A court violates due process when it modifies visitation, changes primary residence, or alters child support when the pleadings do not include such issue. In this case, the trial court erred when it granted the Former Husband relief (temporary custody) not set out in the pleadings, and raised only at the start of the hearing. The appeals court reversed.

Case:             McFatter v. McFatter
Court:            First District Court of Appeal.
Trial Judge: John L. Fishel, II.
Attorneys:      Linda A. Bailey, Jerry L. Rumph, Jr., Hunter J. Hendrix, Rachel R. Seaton.
Issues:            Parenting.

Holding:        A Former Spouse cannot seek to enforce compliance on an issue resolved in a temporary order if the final judgment is silent on such a matter. In this case, the trial court erred in its interpretation on whether a specific parenting provision was incorporated into the Amended Final Judgment. Specifically, the Amended Final Judgment did not incorporate, or attach, that portion of the Temporary Order allowing for the Father to make the decisions concerning the children’s contact with his mother. The appeals court reversed.

Case:             Jackson v. Jackson
Court:            Third District Court of Appeal.
Trial Judge: Antonio Marin.
Attorneys:      Ilene F. Tuckfield, Hegel Laurent.
Issues:            Procedure.

Holding: An appeals court has the power to award a new trial where, as here, essential records have been destroyed by an official of the lower court through no fault of the appellant. In this case, the trial court’s decision was appealed by the Former Husband however, the record was unavailable as the court reporter died. A search for the court reporter’s recordings or stenographic equipment, performed by the court reporting firm and appellant’s counsel, was unavailing and the parties attempted, unsuccessfully, to reconstruct the record in accordance with Florida Rules of Appellate Procedure. The appeals court reversed the final judgment and remanded for a new trial.

Case:            A.G. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: James L. Martz.
Attorneys:      Antony P. Ryan, Richard G. Bartmon, Deborah Anne Schroth, Sara E. Goldfarb.
Issues:            Dependency.

Holding: A trial court may not grant a motion restricting the method of examining a child witness without holding an evidentiary hearing and making factual findings supported by the evidence. Factors for an appellate court to consider in reviewing a competency determination include the entire context of the child’s testimony and whether other evidence corroborates the child’s testimony. A prerequisite to the admission of child-victim hearsay is for the court to conduct an evidentiary hearing to ascertain the reliability of the out-of-court statements. In this case, the trial court erred as it granted the Department’s dependency motion based on its assertions, but not on proper evidence, that a minor child would suffer emotional or mental harm if required to testify in open court. Nor did the trial court conduct the proper test as to the competence of a minor child to give evidence. Finally, the trial court improperly admitted child-victim hearsay evidence. The appeals court reversed and vacated a disposition order and case plan and provided directions on remand.

Case:             J.N.S. v. A.M.A.
Court:            Fifth District Court of Appeal.
Trial Judge: Tonya B. Rainwater.
Attorneys:
Issues:            Child Support, Time-Sharing.

Holding: A trial court’s order establishing a parenting plan is reviewed for an abuse of discretion. Florida Statutes (2012), lists the expenses that parents may deduct from their gross income to determine their net income, including mandatory retirement payments. A child support order must make findings on a parent’s potential earning ability or address whether she or he is voluntarily underemployed. Here, the trial court’s finding on time-sharing could not be properly reviewed because no transcript was provided. The Mother appealed on the grounds that the trial court failed to state, as required by statute, that it had considered evidence of domestic violence, and the best interests of the children. The appeals court noted concern about some trial court findings but was compelled, in the absence of a transcript, to affirm on time-sharing. The trial court had also considered the statutory criteria relating to time-sharing and made findings of fact related to each factor. The trial court erred, however, in its application of the child-support guidelines as it refused to deduct the Mother’s mandatory retirement benefits from her gross income and failed to make findings regarding the Father’s employment status and potential earning ability. The appeals court affirmed on timesharing and reversed and remanded on child support.

Case:             Martin v. Martin
Court:            Fifth District Court of Appeal.
Trial Judge: John M. Alexander.
Attorneys:      Aaron M. Makofka, Valarie Linnen.
Issues:            Alimony.

Holding: A trial court may reduce or terminate an alimony award when a Former Spouse enters into a supportive relationship with an individual and resides with him or her. Florida Statutes (2015), sets out the factors a trial court shall weigh in making the determination as to whether a supportive relationship exists. These include the extent to which the obligee and the other person have held themselves out as a married couple and has supported the other, in whole or in part. In this case, the trial court erred in deciding that a supportive relationship did not exist between the Former Wife and another individual when the evidence indicated both held themselves out as a married couple and received/provided support and financial benefits to one another. The appeals court reversed and remanded.

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Florida Divorce and Family Law Update for Week Ending June 19, 2016

June 21, 2016

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.

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Florida Divorce and Family Law Update for Week Ending June 12, 2016

June 14, 2016

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.

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