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 June 5, 2016

June 7, 2016

Below are summaries of recent decisions from Florida's appellate courts on Florida divorce and family law issues. Clicking on the case name allows you to view the appellate opinion described in the analysis below. These summaries are courtesy of Bruce Law Firm, P.A., a law firm limited to representation of clients in the mediation, litigation and appeals of Florida marital and family law matters. The firm also created and maintains the family law focused appellate resources website DivorceCourtAppeals.com.

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

Holding:         Child Support

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

Equitable Distribution

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

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

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

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

Holding: Child Support

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

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

Attorney’s Fees

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

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

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

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

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

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

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

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Florida Divorce & Family Law Update for 2 Weeks Ending January 10, 2016

January 13, 2016

Case:              A.C. v. D.C.F. and Adoptive Parents of R.A.
Court: Second District Court of Appeal.
Trial Judge: Kathleen J. Kroll.
Attorneys:     Ronald L. Bornstein, Meredith K. Hall, Bradenton, Philip M. Burlington.
Issues:           Termination.

Holding:     A motion for relief from judgment should not be summarily denied without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege ‘colorable entitlement’ to relief. In this case, the trial court erred in denying the Mother’s motion to vacate the order terminating her parental rights on the basis that she lacked standing (an adoption situation). The appeals court reversed but expressed no opinion as to whether any colorable entitlement to relief under rule 8.270 was shown.

Case:              Forssell v. Forssell
Court: Fourth District Court of Appeal.
Trial Judge: Laura M. Watson.
Attorneys:     Daniel E. Forrest, Joyce A. Julian.
Issues:           Time-sharing.

Holding:       In this case, the Father brought two appeals, that of a: 1. non-final order granting the emergency motion of the Mother to indefinitely suspend his time-sharing with their minor children; and 2. non-final order denying the parties’ joint request to vacate and dissolve the final judgment for protection against domestic violence, which the Mother had obtained against him. In this case, the trial court abused its discretion in failing to set out, in its order, the steps the Father must take to re-establish time-sharing. The appeals court consolidated two cases and reversed the time-sharing order in part and the order denying the motion to vacate and dissolve the injunction.

Case:              Benedict v. Benedict
Court: Fourth District Court of Appeal.
Trial Judge: Tim Bailey.
Attorneys:     Herbert L. Benedict, William G. Crawford.
Issues:           Alimony.

Holding:     The Former Wife sought a judgment on alimony arrearages while the Former Husband’s petition to modify alimony was pending. The Former Husband appeals from the money judgment of the trial court. He argues that the judgment constituted error because he is disabled and unemployed and the Former Wife’s improved financial circumstances obviate her need for support. In this case, the trial court did not err as the Former Husband must raise his claims in the trial court during modification proceedings and must present evidence in support of his modification petition. The appeals court affirmed but without prejudice to the Former Husband proceeding on his modification petition and then seeking relief from the alimony arrearages judgment if the result of the modification proceeding warrants such relief.

Case:              S.L. v. D.C.F.
Court: Second District Court of Appeal.
Trial Judge: Lee A. Schreiber.
Attorneys:     Toni A. Butler, Meredith K. Hall, Laura Lawson.
Issues:           Termination.

Holding: There are strict time frames in cases involving the termination of parental rights. Under the Florida Rule of Judicial Administration, there is a sixty-day time requirement for decisions by courts in such matters. There is also public policy of expediting termination proceedings. In this case, the trial court rendered its final judgment over eight months after the termination hearing (and only after the Guardian Ad Litem filed a motion for ruling on petition for termination of parental rights). During the eight-month delay, several events occurred that required judicial review, including a change of custody that separated the younger children from the older ones. The appeals court affirmed but wrote to emphasize that strict compliance with the rules and statutes governing the time frames in dependency and termination cases is required.

Case:              Felice v. Felice
Court: Second District Court of Appeal.
Trial Judge: Christine Greider.
Attorneys:     Appellant was pro se.
Issues:           Equitable Distribution, Parenting.

Holding:

Equitable distribution
An inter-spousal agreement can expressly waive a Former Spouse's rights and claims in property, including the appreciated or enhanced value of property that occurs during the marriage. In this case, the trial court erred in including a portion of the value of the Former Husband's premarital home as a marital asset in the equitable distribution scheme. Even though the agreement did not specifically refer to any right to the appreciation or enhancement of his premarital home, the broad language of the agreement expressly waived the Former Wife's rights and claims in the property and was considered to include the appreciated or enhanced value of the property that occurred during the marriage. The appeals court reversed.

Parenting
If a trial court modifies a parenting plan in an order on motions for rehearing it must also implement the new parenting plan in the amended final judgment. In this case, the trial court erred in failing to incorporate into the amended final judgment the amended parenting plan that was ordered on rehearing from the original final judgment. The appeals court reversed the amended final judgment to the extent that the parenting plan language and attached parenting plan were inconsistent with the trial court's rulings on rehearing and directed the trial court to amend to be consistent with same.

Case:              Pollack v. Pollack
Court: Fifth District Court of Appeal.
Trial Judge: Charles Hood.
Attorneys:     Richard J. D'Amico, Philip J. Bonamo.
Issues:           Alimony.

Holding:       In this case, the trial court erred by terminating alimony retroactively to the date when the recipient Former Wife Appellant began residing with her significant other, as opposed to the date when the payor Former Husband filed his petition to terminate alimony. The appeals court reversed and remanded with directions to the trial court to enter a new order terminating alimony retroactively to the date of the supplemental petition for modification.

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Florida Divorce & Family Law Update for 4 Weeks Ending October 25, 2015

October 28, 2015

Case:              Lalonde v. Lalonde
Court:            Fourth District Court of Appeal.
Trial Judge: Arthur M. Birken.
Attorneys:
Issues:            Procedure.

Holding:     Under Florida Rules of Procedure, the requiring thirty days’ notice is mandatory and applicable to final hearings as well as to jury trials. In this case, the trial court erred in proceeding with the hearing and rendering final judgment when the Former Husband did not have at least thirty days’ advance notice. The appeals court remanded with instructions to the circuit court to set a new final hearing, giving the parties at least 30 days’ notice.

Case:              Miggins v. Miggins
Court:            Fourth District Court of Appeal.
Trial Judge: Krista Marx.
Attorneys:     Doreen Truner Inkeles, Adam M. Zborowski.
Issues:            Equitable Distribution.

Holding:     A party seeking equitable distribution of a military Survivor Benefit Plan shall provide evidence concerning assertions as to the Plan including the cost of maintaining it and how equitable distribution or alimony would be affected. In this case, the trial court was incorrect when it found that the Former Husband’s military Survivor Benefit Plan was not marital property subject to equitable distribution. However, it was correct in its treatment of the Plan. Specifically, the Former Wife presented no evidence concerning the cost of maintaining the Plan and how equitable distribution or alimony would be affected. The appeals court reversed on the issue and remanded for the entering of a second amended final judgment containing language referring to the “existence of a supportive relationship” pursuant to Florida Statutes (2014).

Case:              Hofschneider v. Hofschneider
Court:            Second District Court of Appeal.
Trial Judge: Richard A. Nielsen.
Attorneys:     Jeremy T. Simons.
Issues:            Contempt.

Holding:      Pre-judgment civil contempt orders are properly reviewed by certiorari. In this case, as the issue involved review of a contempt order by the trial court, the appeals court converted the matter to a petition for writ of certiorari. It was, however, declined as the Appellant / Applicant did not demonstrate suffering a material injury that could not be corrected on post-judgment appeal.

Case:              B.R. v. D.C.F.
Court:            Second District Court of Appeal.
Trial Judge: Sonny Scaff.
Attorneys:     Donald K. Rudser, Ward L. Metzger, Dave Krupski.
Issues:            Dependency.

Holding:      An amendment or modification of an order or judgment in an immaterial, insubstantial way does not re-start the clock to file an appeal. Even substantial or material modifications in an amended judgment do not provide grounds sufficient to appeal issues adversely decided in the earlier judgment. In this case, the appeal was filed in excess of the thirty-days from the date the orders were rendered, one of which contained immaterial changes. The immaterial changes did not re-start the time for proper filing of an appeal.

Case:              J.B.-L v. D.C.F.
Court:            Second District Court of Appeal.
Trial Judge: Suzanne Bass.
Attorneys:     Robert W. Keep, Jr., Joshua Goldsborough, Niki Guy, Ward L. Metzger, Wendie Michelle Cooper.
Issues:            Dependency.

Holding:      A trial court order finding a child dependent but withholding an adjudication of dependency is properly reviewable by the appeals court pursuant to the Florida Rules of Appellate Procedure. In this case, the trial court did not err in adjudicating only two of seven minor children, dependent but finding all seven of them dependent. The fact that adjudication hearings were conducted on only two matters was not an error. The appeals court affirmed.

Case:              Shah v. Shah
Court:            Third District Court of Appeal.
Trial Judge: Mindy S. Glazer.
Attorneys: Bryant Miller Olive, Elizabeth W. Neiberger, Clayton D. Simmons, Andrew Rier, Daniel Tibbitt.
Issues:            Process.

Holding: Due process requires proper notice and an opportunity to be heard. In this case, the trial court erred when it noticed the hearing on the petition for dissolution of marriage as a status conference but, instead, conducted a final hearing and entered final judgment. The appeals court reversed.

Case:              De Leon v. Collazo
Court:            Third District Court of Appeal.
Trial Judge:   Leon M Firtel.
Attorneys:      David W. Macey, Lindsey M. Alter, Jessica B. Reilly.
Issues:            Permanent Injunction for Protection, Process.

Holding:      Due process serves as a vehicle to ensure fair treatment through the proper administration of justice. It requires that litigants be given proper notice and a full and fair opportunity to be heard. To be sufficient, notice must be reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections. The notice must convey the required information, afford a reasonable time for those interested to make their appearance, and indicate the witnesses and the evidence expected.

In this case, the trial court erred when, at the final hearing, it permitted the Applicant, over objection, to testify to substantial and significant acts of domestic violence that were never pleaded in the petition. Nor was the Respondent put on notice that these additional acts would form a part of the allegations relied upon. This violated the Respondent’s due process rights. The appeals court vacated the permanent injunction and remanded for a new final hearing.

Case:              Gromet v. Jensen
Court:            Third District Court of Appeal.
Trial Judge:   Pedro P. Echarte.
Attorneys:     George R. Baise Jr., Brian C. Tackenberg, Robin Buckner, Robert F. Kohlman.
Issues:            Equitable Distribution.

Holding: A trial court’s determination that an asset is marital or non-marital involves mixed questions of law and fact. Although an appeals court defers to the trial court’s factual findings if they are supported by competent, substantial evidence, it will review the trial court’s legal conclusions de novo.

Non-marital assets include assets acquired separately by either party by non-interspousal gift, bequest, devise, or descent, and asset acquired in exchange for such assets. Non-marital assets may lose their non-marital character and become marital assets where they have been commingled with marital assets. This is especially true with respect to money because money is fungible, and once commingled it loses its separate character.

Florida Statutes (2014), provide that marital assets include the enhancement in value and appreciation of non-marital assets resulting from the efforts of either party during the marriage. Where a former spouse seeks to establish that marital efforts were utilized to enhance the value of the other party’s non-marital business, he or she also has the burden of proving that assertion and the value, based on competent, substantial evidence.

In this case, the trial court erred by treating the Former Husband’s accounts as marital assets subject to equitable distribution, when the accounts were entirely funded with an inheritance he received; the Former Wife failed to present competent, substantial evidence that marital funds were deposited into or commingled with any of the Former Husband’s accounts; and the evidence showed that, despite actively managing his accounts, they decreased in value. The appeals court reversed the equitable distribution portion of the final judgment.

Case:              Russell v. Pasik
Court:            Second District Court of Appeal.
Trial Judge:   Marc B. Gilner.
Attorneys:    Paul F. Grondahl, Cristina Alonso, Jessica Zagier Wallace, Michael P. Sampson, Ashley Filimon, Elliot H. Scherker, Brigid F. Cech Samole, Jay A. Yagoda, Luis E. Insignares, Elizabeth Lynn Littrell, Paolo Annino, Brion Blackwelder, Michael J. Dale, Nancy Dowd, Shani M. King, Barbara Bennett Woodhouse.
Issues:            Time-sharing.

Holding:      To be entitled to certiorari relief, a party must demonstrate: (1) a departure from the essential requirements of the law; (2) resulting in material injury for the remainder of the case; (3) that cannot be corrected on post-judgment appeal. The second and third elements are jurisdictional and thus must be evaluated first. Typically, certiorari will not be granted from a denial of a motion to dismiss because there is not a material injury that cannot be corrected on post-judgment appeal.

A psychological parent is not recognized in law. Only natural and adoptive parents have a legal duty to support minor children. When there is no biological connection between a petitioner and a child and that nonparent is seeking to establish legal rights to the child, there is no clear constitutional interest in being a parent.

In this case, the trial court erred as it failed to conduct the proper analysis to determine standing. Further in order to prevent irreparable harm, the trial court must fully assess that issue. In denying the motion to dismiss, the trial court merely opined that a cause of action arose based on the facts set out in the petition. However, the petition showed that it was legally impossible for the Respondent to establish standing to petition the trial court for timesharing as she asserted she was a de facto or psychological parent and not a biological parent. As a cause of action does not exist in the absence of standing, the trial court departed from the essential requirements of the law by not dismissing the petition for timesharing. Additionally, the trial court improperly addressed the Applicant / Biological Parent’s constitutional privacy interest in the raising of her children, including determining with whom they are allowed to spend time. This would enable the State's interference with a constitutional right—here, the right to privacy, and an injury that cannot be corrected on post-judgment appeal. The appeals court granted the petition for certiorari.

Case:              Rosenblum v. Rosenblum
Court:            First District Court of Appeal.
Trial Judge: W. Gregg McCaulie.
Attorneys:     Geraldine C. Hartin.
Issues:            Child Support.

Holding:      A party is entitled to have his or her motion to modify child support or alimony heard and resolved before, or simultaneously with, a hearing on another party’s later-filed motion for contempt. In this case, the trial court erred in proceeding only on a motion for contempt filed by the Former Wife, when the Former Husband had filed a prior motion for modification of child support, despite his repeatedly objecting to proceeding without first or simultaneously resolving the issues raised in his earlier-filed motion. The appeals court reversed and remanded for further proceedings on the Former Husband’s motion to modify child support.

Case:              Taylor v. Taylor
Court:            Second District Court of Appeal.
Trial Judge: Jalal A. Harb.
Attorneys:     Jean M. Henne, Karie L. Sanoba.
Issues:            Alimony.

Holding:      Generally, trial courts may not consider future or anticipated events in making alimony awards, due to the lack of an evidentiary basis or the uncertainty surrounding such future events. Under statute, when determining alimony, a trial court considers: (1) a party's need for support; (2) the other party's ability to pay; (3) the type of alimony or the types of alimony appropriate in the case; and (4) the amount of alimony to award.

The first two considerations involve questions of fact to be supported by competent, substantial evidence. Once need and ability are determined, the court determines which type, or types, of alimony are appropriate. The court can award (1) bridge-the gap alimony; (2) rehabilitative alimony; (3) durational alimony; (4) permanent alimony or a combination. Statute limits a trial court’s discretion in this regard by making the court consider also the duration of the marriage. The trial court must demonstrate on the record or in its order that it has applied the correct law when selecting its choice of alimony. Under Florida statute, there lies a rebuttable presumption that a marriage of seventeen years or greater is a long-term marriage, for which permanent alimony may be awarded upon consideration of the statutory factors. There is no special burden of proof applicable to the award of permanent alimony in a long-term marriage, however, the court must include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties. Durational alimony may be awarded when permanent periodic alimony is inappropriate or if there is no ongoing need for support on a permanent basis. The length of an award of durational alimony can be extended only under exceptional circumstances. There may be need to award a combination of the two.

In this case, the trial court erred in that it did not expressly find that permanent periodic alimony was inappropriate. The trial court erred further in that the judgment failed to contain the necessary findings to support durational alimony. The findings were so deficient as to hinder appellate review. The appeals court reversed and remanded with special instructions.

Case:              Horrisberger, Jr. v. Horrisberger N/K/A Abbe
Court:            Second District Court of Appeal.
Trial Judge: Laurel Moore Lee.
Attorneys:     Kathy C. George.
Issues:            Child Support.

Holding: A trial court errs in determining child support based on a comparison of the gross income of one party to the net income of the other. In this case, the trial court erred in considering separate worksheets filed by the parties, which submitted respectively, figures which represented gross income net income. The appeals court reversed and remanded.

Case:              Cozzo v. Cozzo
Court:            Third District Court of Appeal.
Trial Judge: Barbara Areces.
Attorneys:     Kimberly L. Boldt, Teresa Abood Hoffman, Maggie A. Berryman.
Issues:            Attorney’s Fees.

Holding:        Florida law requires a party seeking attorney’s fees to provide proof detailing the nature and extent of the services performed and expert testimony regarding the reasonableness of the fees. Where a party has provided sufficient, admissible proof of these two components, a trial court will not further mandate direct testimony from the attorney who performed the services. In this case, the trial court failed to provide a record which reveals sufficient evidence to support an award of attorney’s fees. The appeals court reversed the trial court’s order denying the Former Wife’s motion for attorney’s fees, and remanded for entry of an award of fees in accordance with the evidence presented.

Case:              Bush v. Henney
Court:            Fourth District Court of Appeal.
Trial Judge: Laura M. Watson.
Attorneys:     Troy W. Klein.
Issues:            Domestic Injunction.

Holding:      Under Florida statute, a party to a domestic violence injunction may move at any time to modify or dissolve the injunction. No specific allegations are required. If the scenario underlying the injunction no longer exists so that the continuation of the injunction would serve no valid purpose, then the injunction should be modified or dissolved. In this case, the trial court erred in denying the Appellant’s motion to dissolve an injunction from approximately 14 years ago when he had never violated it, had never tried to contact the Appellee and he testified that he has no desire or intention of doing so. The appeals court remanded.

Case:              Malave v. Malave et al
Court:            Fifth District Court of Appeal.
Trial Judge: Mark J. Hill.
Attorneys:     William Glenn Roy, III, Tyler J. Chasez, Nichole J. Segal, Andrew A. Harris.
Issues:            Equitable Distribution, Procedure.

Holding:       Ancillary relief is generally available in dissolution of marriage cases. However, the ancillary relief must relate to matters which are personal and proper to the divorce action itself. The common thread between them is a distinct relationship linking the parties and the subject of the litigation. A circuit court does not lack jurisdiction simply because a case is filed or assigned to the wrong division within the circuit court. All circuit court judges have the same jurisdiction within their respective circuits. The filing of an action in the wrong division should be remedied by reassignment to the correct division as opposed to a dismissal of the action.

In this case, the family (trial) court erred as it found that it lacked jurisdiction over the divorce action because the Former Husband died before a judgment dissolving the marriage was entered and dismissed, with prejudice, the Former Wife’s ancillary petition. The parties were in the midst of divorce proceedings when the Former Husband and the parties’ children were tragically killed in a car accident. The divorce petition was abated by his death. Subsequently, the Former Wife discovered that he had allegedly made a substantial number of property and money transfers to his relatives shortly before his death. She deduced that the disposal of marital assets was intentional and that other parties, including his lawyer, had assisted in the allegedly fraudulent transfers. She moved to reopen the abated divorce case and to file an ancillary petition naming as defendants the parties whom she believed had assisted him, including his lawyer. The family court granted the motion. The parties named did not file a response. The clerk entered a default against the non-lawyer while the Former Husband’s previous lawyer filed a motion to dismiss the ancillary petition asserting that the family court lost jurisdiction over the divorce case when the husband died. The family court agreed and dismissed the ancillary petition. The appeals court reversed and found that the dismissal with prejudice was improvidently entered, and directed the circuit court to transfer the ancillary petition from its family division to its civil division. The Former Wife’s attempt to sue the Former Husband’s former lawyer for fraud in the divorce action was misplaced, as no judgment had been entered dissolving the marriage at the time of the Former Husband's death. Therefore, the divorce action ended when the Former Husband died. The Former Wife’s ancillary petition itself was not ancillary to the divorce because the Former Husband’s former lawyer was not a party to the divorce litigation. However, the family court should have transferred the matter to the civil division of the circuit court. By dismissing the action with prejudice the trial court completely denied the Former Wife the opportunity to raise her claims anywhere. The appeals court reversed the dismissal with prejudice of the ancillary petition and remanded for further proceedings in the appropriate division of the circuit court.

Case:              Wells v. Whitfield
Court:            First District Court of Appeal.
Trial Judge: E. McRae Mathis.
Attorneys:     Seth Schwartz, Eric Lawson, Valarie Linnen.
Issues:            Child Support.

Holding:      In awarding child support, a trial court must make findings of fact based on record evidence in support. Meaningful appellate review is facilitated by such findings. In this case, while the trial court did not err (abuse of discretion) by refusing to allow the Father (Payor) to present additional evidence on rehearing, it erred when the amended final judgment did not justify the amount of the child support obligation. Specifically, the trial court properly found the Father failed to show that certain monies should be excluded from his income for child support purposes but failed to state in the amended final judgment how much of that money was part of his income for child support calculations. The appeals court could not meaningfully review the child support award to determine whether it is within the guidelines. The appeals court reversed and remanded for the trial court to make specific findings on point.

Case:              Nicolas v. Blanc
Court:            Third District Court of Appeal.
Trial Judge: John Schlesinger.
Attorneys:   Hegel Laurent, Yolande Henry Van Dam, Barbara Green.
Issues:            Parenting, Relocation.

Holding: In considering relocation applications, a trial court must properly consider and apply the enumerated factors under Florida Statutes (2014) to the record evidence. It must also articulate findings of fact based on such. In this case, the trial court did not err as it properly considered and applied the requisite and applicable factors under Florida Statutes (2014), and articulated findings of fact, supported by the competent substantial evidence presented. The appeals court affirmed the trial court’s order granting relocation.

Case:              Kelley v. Kelley
Court:            Fourth District Court of Appeal.
Trial Judge: Timothy P. McCarthy.
Attorneys:     Troy William Klein, Bernice Marie Kelley.
Issues:            Equitable Distribution, Alimony, Child Support.

Holding: Equitable Distribution

In distributing marital assets and liabilities, the presumption is an equal division, however, the court may order an unequal distribution based on factors enumerated under Florida Statutes. Unequal distribution must be based on record evidence. In this case the trial court erred in awarding the Former Wife a greater share of the marital assets when it had already awarded her a balancing payment from the Former Husband in an effort to equalize the parties’ respective shares of the marital assets.

Alimony

An award of alimony will usually not be reversed on appeal absent an abuse of discretion. Under Florida Statutes (2014), the trial court must be consider the list of factors set out including any other consideration necessary to do justice between the parties. Failure to do so is reversible error. In this case the trial court erred in failing to make the requisite factual findings in support of the alimony award to Former Wife. Specifically, it failed to identify or make findings of fact relative to: the standard of living established during the marriage; the contributions of each party to the marriage; the tax treatment and consequences of the alimony award; and all sources of income available to either party. Without these findings, the appeals court was unable to make a proper determination as to the appropriateness of durational alimony. The appeals court reversed and remanded.

Case:              B.L. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: Michael Heisey.
Attorneys:     Antony P. Ryan, Richard G. Bartmon, Karla Perkins.
Issues:            Dependency.

Holding:       An adjudication of dependency based entirely, or largely, on inadmissible hearsay, must be reversed. In this case, the trial court erred in determining dependency on the basis of hearsay allegations of domestic violence by the Father. The allegations came through the Mother’s statements as conveyed through the investigating officers. The appeals court reversed.

Case:              Hutchinson v. Hutchinson
Court:            First District Court of Appeal.
Trial Judge: Monica J. Brasington
Attorneys:   Stephen K. Johnson, Emily A. Snider, Jonathan P. Culver.
Issues:            Alimony, Attorney’s Fees.

Holding:      A trial court’s award of attorney’s fees is governed by statute. Such awards are to ensure that both parties will have a similar ability to obtain competent legal counsel. The general standard for awarding attorney’s fees and costs is the requesting spouse’s financial need and the other spouse’s ability to pay. Awards of attorney’s fees are reviewed for an abuse of discretion. Where marital property has been equitably distributed and the parties’ incomes have been equalized through an alimony award, a trial court abuses its discretion by awarding attorney’s fees. In this case, the trial court erred in awarding attorney’s fees to the Former Wife after it had equitably distributed the marital property and further awarded her alimony, thereby equalizing the parties’ incomes. The parties were in substantially the same financial positions and equally able to pay the fees and costs. The appeals court reversed the award of attorney’s fees and costs.

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Florida Divorce & Family Law Update for Week Ending July 12, 2015

July 14, 2015

Case:             Thompson v. Malicki
Court:            Second District Court of Appeal.
Trial Judge: Lee Ann Schreiber.
Attorneys:     Christopher R. Bruce.
Issues: Relocation, Modification, Child Support

Holding: A trial court's imputation of income must be supported by competent, substantial evidence. When calculating child support, Florida Statutes (2011) provide that the trial court shall impute income to a voluntarily unemployed or underemployed parent absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control. Where income is to be imputed, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available.

In this case the trial court did not err as to its modification of timesharing and the denial of relocation as those findings were based on cogent, substantial evidence. However, the trial court erred when it based an award of child on imputed income of the Former Wife which was not supported by sufficient findings or evidence. Reliance on past work history alone is insufficient to support imputation of income. Particularized findings are required regarding work history, occupational qualifications, and the current job market in the community to support the imputation of income. Failure to make these findings results in reversal.

The appeals court remanded for the trial court to take further evidence on this issue and recalculate the amount of child support as necessary.

Case:             J.B. etc v. Florida D.C.F.
Court: Florida Supreme Court.
Trial Judge:
Attorneys: Stephanie Christina Zimmerman, Dwight Oneal Slater, Ryan Thomas Truskoski, George E. Schulz, Jr., Robin L. Rosenberg, Wendie Michelle Cooper, Kelley Ruth Schaeffer.
Issues:            Termination, Process.

Holding:         The right to counsel in termination of parental right (TPR) proceedings includes the right to effective assistance and requires a means of vindicating that right.
The Supreme Court considered two questions.

1.    Is the criminal standard of ineffective assistance of counsel applicable to claims of ineffective assistance of counsel in proceedings involving the termination of parental rights? The SC answered in the negative.

2.  Is any procedure available following the termination of parental rights to raise claims of ineffective assistance of counsel that are not apparent on the face of the record? The SC answered in the affirmative.The Supreme Court:

a. established the appropriate standard for determining whether counsel provided constitutionally ineffective assistance in termination of parental rights proceedings;

b. provided a temporary process for bringing such claims of ineffective assistance; and

c. directed the development of rules providing the procedure for vindicating that right.

1.     The Right to Counsel

Under Florida statutory law, parents have a right to counsel in both dependency and TPR proceedings. While the appointment of counsel is not required by the constitution, it is required under the due process clause of the United States and Florida Constitutions, in proceedings involving the permanent termination of parental rights to a child.

2.     The Right to Effective Assistance of Counsel

The right of indigent parents to counsel under the Florida Constitution in TPR proceedings necessarily includes the constitutional right to the effective assistance of counsel.

3.     The Standard for Ineffective Assistance

The standard for determining ineffective assistance of counsel claims is that the parent must establish that the result of the TPR proceeding would have been different but for the attorney’s deficient performance. Once tis is established, then the order terminating parental rights should be vacated, and the case returned to the circuit court for further proceedings.

4. Temporary Procedure for Ineffective Assistance Claims in TPR Cases

Post-TPR proceedings must be expeditious. A permanent such process will be developed. The Supreme Court set an interim process for bringing claims of ineffective assistance of counsel following the termination of parental rights. This interim process requires that claims of ineffective assistance first must be raised by the parent and ruled on by the trial court. The trial judge must ensure that the parents whose rights are at issue are informed of those rights such that at the end of each TPR adjudicatory hearing, the circuit court shall orally inform the parents for whom counsel was appointed regarding the right to:

(1) appeal the order entered at the end of the TPR proceedings to the district court; and

(2) file a motion in the circuit court alleging that appointed counsel provided constitutionally ineffective assistance (if the court terminates parental rights).

In addition, a written order terminating parental rights shall include a brief statement informing the parents of the right to effective assistance and a brief explanation of the procedure for filing such a claim. Indigent parents (likewise without the assistance of appointed counsel) must file a motion in the circuit court claiming ineffective assistance of trial counsel in the TPR proceeding. Appeal from an order denying a motion alleging the ineffective assistance of counsel will be raised and addressed within any appeal from the order terminating parental rights. A parent, without assistance of appointed counsel, shall have twenty (20) days after the termination judgment issues within which to file a motion in the trial court alleging claims of ineffective assistance of counsel. The motion must contain the case name and number; the date the order of termination of parental rights issued; the specific acts or omissions in trial counsel’s representation of the parent during the TPR proceedings that the parent alleges constituted a failure to provide reasonable, professional assistance; and an explanation of how the errors or omissions prejudiced the parent’s case to such an extent that the result would have been different absent the deficient performance.

If a parent files an ineffective assistance of counsel motion, rendition of the order in the TPR proceeding will be tolled for purposes of appeal until the circuit court issues an order on the pro se ineffective assistance motion. If a parent chooses to file a motion claiming ineffective assistance of counsel, then counsel of record cannot continue representation.

If the parent chooses to appeal, the attorney must certify, among other things, that:

a.     the parent so chose;
b.     a notice of appeal signed by counsel;
c.     the parent has been filed; and
d.     an order appointing appellate counsel, if any, has been entered.

Further, the appointed attorney representing an indigent parent, must, after issuance of an order terminating parental rights, discuss appellate remedies and determine whether the parent wants to appeal the TPR order. If the answer is affirmative, counsel must also inquire whether the parent intends to file a motion claiming ineffective assistance of counsel. If the parent responds affirmatively, then counsel must immediately seek withdrawal on this basis. In addition, if the parent subsequently files a motion alleging ineffective assistance despite the parent’s prior expression of a contrary intent, if counsel of record is also appellate counsel withdrawal is required at that time, and new counsel will be appointed for any appeal from the TPR order and from the disposition of the ineffective assistance of counsel motion.

When a parent files a motion alleging ineffective assistance of counsel, rendition of the trial court’s TPR order will be tolled for purposes of appeal until the trial court rules on any claim of ineffective assistance of counsel. The trial court shall review the ineffective assistance motion and order compilation of the record regarding the termination of parental rights proceedings on an expedited basis. Further, the trial court shall conduct proceedings, including an evidentiary hearing if necessary, to determine whether the motion should be granted or denied. The circuit court shall render an order within twenty-five (25) days after the motion alleging ineffective assistance was filed or the motion shall be deemed denied.

On appeal, the district court will review claims regarding the parent’s appeal from the trial court’s TPR order and from the disposition of the ineffective assistance motion. This process will apply to any case in which a judgment terminating parental rights is entered after this case becomes final. Creation of the permanent process and development of the attendant rules will be the task of a special committee.

In this case, the Supreme Court determined, that the appellant failed to present any basis for setting aside the order terminating her parental rights and affirmed the trial court’s decision.

Case:              S.V. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge: Alan S. Fine.
Attorneys:      Karla F. Perkins, Kele Stewart, Laura E. Lawson.
Issues:            Dependency, Reunification.

Holding:         A certiorari review of the trial court’s non-final order is limited to whether the trial court departed from the essential requirements of law in conducting its review of the general magistrate’s report and recommendations, resulting in irreparable harm to the petitioner that cannot be remedied on direct appeal.

In this case, the trial court did not err as it adhered to the essential requirements of law and applied the correct legal standards when it reviewed the general magistrate’s recommendations. Specifically, the trial court found that competent substantial evidence did not support the general magistrate’s finding that the Father, at this time, had the capacity to meet the children’s extensive and unremitting therapeutic needs. The appeals court denied the petition to review the lower court decision.

Case:             Quinn v. Quinn
Court:            Second District Court of Appeal.
Trial Judge: John A. Schaefer.
Attorneys:      Ingrid Anderson.
Issues:            Child Support, Equitable Distribution.

Holding:         When a parenting plan provides that the children will spend a "substantial amount of time" with each parent, defined as at least twenty per cent of the overnights per year, the award of child support should be adjusted as set forth in Florida Statutes (2013), requiring calculation based in part on the percentage of overnights the children spend with each parent. While the statute presumptively establishes the amount of child support, the court may deviate from the presumptive amount based on numerous factors, including the obligee parent’s low income and ability to maintain the basic necessities of the home for the child, the likelihood that either parent will actually exercise the time-sharing schedule set forth in the parenting plan and whether all of the children are exercising the same time-sharing schedule. If the trial court wishes to deviate from the presumptive amount by more than five percent, the final judgment must include findings of fact to support the deviation and explain why the guidelines amount is unjust or inappropriate.

In this case, the trial court erred in ordering a number of overnights to each parent that contradicted those ordered in the parenting plan without explaining the discrepancy. This was an error on the face of the judgment requiring the appeals court to reverse and remand.

Case:             Sikora v. Sikora
Court:            Second District Court of Appeal.
Trial Judge: Richard A. Nielsen.
Attorneys:      Christine A. Hearn, Steven L. Brannock, Mark F. Baseman.
Issues:            Alimony, Equitable Distribution, Imputation.

Holding:         Permanent Periodic Alimony

Permanent periodic alimony is used to provide the needs and the necessities of life to a Former Spouse as they have been established by the marriage of the parties. Absent special circumstances, an alimony award should not exceed a Recipients Spouse's need (excessive awards constitute an abuse of discretion). In the absence of special circumstances, a trial court errs by awarding permanent, periodic alimony in an amount that exceeds a Former Spouse’s established needs. In this case, the trial court failed to include findings detailing any special circumstance that would explain why alimony was awarded in an amount exceeding the amount necessary to meet the Former Wife's need. The appeals court reversed and remanded for the trial court to either include such findings or reconsider the issue in its entirety.

Imputation

Trial courts may impute income from interest earned on retirement accounts if the income is readily available to a Former Spouse without penalty and without the need to reduce the principal. However, any decision to impute income must be supported by competent, substantial evidence. In this case, the trial court erred by imputing income to the Former Wife from her retirement accounts where there was no evidence to support the specific rate of return used by the trial court. Nor was there an agreement of the experts on the rate of return for the retirement accounts or evidence of the historical rate of return. Rather, the trial court selected the same rate of return used for imputing income on the Former Wife's investment accounts. The appeals court remanded with directions to adjust the alimony award accordingly.

Retroactivity

Generally, when a trial court awards alimony, it abuses its discretion if it fails to make the award retroactive to the date of filing the petition for dissolution. There is an exception where the trial court enters a temporary alimony award during the pendency of the case. In that situation, a retroactive award is limited to the date that the request for an increased award is filed. However, a temporary alimony award can be readdressed at a final hearing if the temporary award was made "without prejudice."

In this case, the parties stipulated that the Former Husband would pay temporary alimony, and the court awarded temporary alimony "without prejudice” such that the issue of temporary alimony could be readdressed at the final hearing. The appeals court ordered the reversal of the permanent, periodic alimony award, and on remand, directed the trial court reconsider the issue of retroactivity of any newly imposed permanent, periodic alimony award (after comparing such award to the stipulated temporary alimony).

Life Insurance

A trial court must include findings relating to a Former Spouse’s insurability at the time of trial and the cost of an insurance policy. In this case the trial court erred when it ordered the Former Husband to secure an insurance policy in the absence of any explanation for how this amount was arrived at or what it was based on. Moreover, trial court's failure to explain how it arrived at the specific dollar requirement was troublesome because the specific amount of coverage bore no correlation to projected alimony amounts and it was not possible for the appeals court to ascertain if the trial court ordered life insurance for purposes other than securing alimony due at the time of the Former Husband's death.

Lump Sum Alimony

Courts have previously reversed lump sum alimony awards that have no evidentiary support. In this case, there was no evidence to justify the lump sum alimony award, and the trial court made no findings to explain its rationale. The appeals court reversed and remanded for the trial court to reconsider the award based on the evidence on the record.

Attributing Dissipated Assets as Part of Equitable Distribution

It is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings. However, an exception to this general proposition exists when misconduct during the dissolution proceedings results in the dissipation of a marital asset. The misconduct necessary to support inclusion of dissipated assets in an equitable distribution scheme does not include mismanagement or simple squandering of marital assets in a manner of which the other spouse disapproves. Instead, to include a dissipated asset in the equitable distribution scheme, 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.

n this case, the trial court erred failing to apply to the standard for attributing dissipated assets to a spouse in dissolution proceedings. Specifically, the trial court erred in attributing monies to the Former Wife in the equitable distribution in such a way that amounted to a sanction for failing to comply with a documenting requirement. The appeals court reversed the trial court's equitable distribution awards and remanded for further proceedings.

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Florida Divorce & Family Law Update for Week Ending May 24, 2015

May 27, 2015

Case:              Williams v. Williams
Court:             First District Court of Appeal.
Trial Judge: Kelvin C. Wells.
Attorneys:      Jerome M. Novey, Shannon L. Novey, Christin F. Gonzalez, John F. Greene.
Issues:            Equitable Distribution.

Holding:        A trial court’s fair market value determination of marital assets must be supported by competent, substantial evidence. Equalization payments and asset distribution must be supported by competent, substantial evidence and trial court must provide sufficient findings and documentation to allow the appellate court meaningful review. In this case, the trial court erred as it did not base its equitable distribution of marital assets and an equalization payment to the Former Wife on competent and substantial evidence. The error was such that the appeals court could not conduct meaningful review of the judgment at issue. The appeals court reversed and remanded those parts of the judgment which were erroneous.

Case:              Bronstein v. Bronstein
Court:             Third District Court of Appeal.
Trial Judge: Scott M. Bernstein.
Attorneys:      Liliana Loebl, Daniel Kaplan, Daniels Kashtan, Lorne E. Berkeley.
Issues:            Parenting, Procedure.

Holding:        To obtain a writ of certiorari, there must exist: (1) a departure from the essential requirements of the law; (2) resulting in material injury; (3) that cannot be corrected on postjudgment appeal. Further, a motion for modification of timesharing must be given notice of the hearing, and present the relief being sought. Specifically, it should be based, and established, on competent and substantial evidence, a material change in circumstances. Such a motion must also involve the taking of evidence and any order that arises should include factual findings. If an order grants relief of an emergency nature, there should be evidence of a true emergency (ie: that the minor child involved is at risk of harm or will be removed from the jurisdiction.)

In this case, the trial court erred in ordering a modification of the parties’ parenting plan on application by the Former Husband insofar as although the Former Wife was given notice of (and attended) the hearing in this matter, the Former Husband’s motion did not seek a modification of the timesharing arrangement, and Former Wife was not on notice that such relief was within the scope of the motion or the hearing. Further, the motion was unverified; the motion did not seek emergency relief; and the trial court did not take any testimony or rely upon any sworn evidence. There was nothing provided by Former Husband to establish a true emergency or to suggest that Child was being threatened with physical harm or about to be improperly removed from the State of Florida. There was nothing presented even to establish the existence of a substantial change of circumstances such that Child’s temporary relocation to Colorado pending the evidentiary hearing was warranted and in Child’s best interest. The court’s Order, which contained no factual findings, was based solely on argument from counsel and the unverified allegations in the Former Husband’s Motion. In rendering its emergency Order upon this basis, and scheduling the evidentiary hearing some four months later, the court departed from the essential requirements of the law, causing irreparable harm that cannot be remedied on post-judgment appeal.

The appeals court granted the Former Wife’s petition, issued the writ of certiorari, and quashed the impugned order below, with instructions that minor child be returned to Former Wife’s care and remanded for further proceedings.

Case: Edgar v. Firuta
Court: Third District Court of Appeal.
Trial Judge: Luis M. Garcia.
Issues: Parenting, Attorney’s Fees.

Holding: Florida procedural Rules authorize a court to permit testimony at a civil hearing or trial by audio or video communication equipment by agreement of the parties or for good cause shown on written request of a party and reasonable notice to all other parties. In this case, the trial court erred in denying the Mother’s petition to telephonically appear at the hearing addressing timesharing and related matters, because the Father objected. The Mother, who was unemployed and had not received child support for the parties’ four children from the Father, lived in North Carolina, had made her petition to appear via technological communications, some 2 months after the procedural rules were amended to so allow such appearance. The court below was not, therefore, barred from considering the mother’s request to testify by telephone simply because the father objected but could have allowed the testimony for good cause shown. The appeals court reversed.

Case:              Badgley v. Sanchez
Court:             Fourth District Court of Appeal.
Trial Judge: Steven B. Feren.
Attorneys:      J. Scott Gunn, Sue-Ellen Kenny, Scott D. Glassman.
Issues:            Equitable Distribution, Alimony.

Holding:         Equitable Distribution
Florida Statutes (2013), governing distribution of marital assets and liabilities, provides that the trial court must begin with the premise that the distribution should be equal and requires consideration and factual findings in the judgment regarding nine specified factors in assessing whether an unequal distribution is warranted. In this case, trial court erred in awarding a 60/40 distribution which was premised solely on the parties’ income and which failed to contain the factual findings required by statute.

Alimony

Florida Statutes (2013), authorizes the award of alimony, based on consideration of a variety of factors that the court shall consider in determining the amount and type. A trial court errs where it fails to make the findings required by statute. In this case, the trial court erred as the final judgment regarding alimony failed to reference the statutory provision and the relevant factors, despite the fact that some of the findings could be fairly read to correlate with the relevant factors. The appeals court reversed on both above issues.

Case:              B.K. v. D.C.F.
Court:             Fourth District Court of Appeal.
Trial Judge: Hope Bristol.
Attorneys:      Lori D. Shelby, Pamela Jo Bondi, Carolyn Schwarz.
Issues:            Termination.

Holding:      Florida statute provides incarceration as a ground for termination. Specifically, under statute, termination may be ordered when the parent of a child is incarcerated and the period of time for which the parent is expected to be incarcerated will constitute a significant portion of the child’s minority. When determining whether the period of time is significant, the court shall consider the child’s age and the child’s need for a permanent and stable home. The period of time begins on the date that the parent enters into incarceration. In addition, the trial court must find that termination is in the manifest best interests of the child. In making this determination, Florida statute sets forth a list of non-exclusive relevant factors, including, but not limited to: (1) any suitable permanent custody arrangement with a relative; (2) the ability the parent to provide the child with food, clothing, medical care or other remedial care; (3) the capacity of the parent or parents to care for the child to the extent that the child’s safety, well-being, and physical, mental, and emotional health will not be endangered upon the child’s return home; and others. Finally, the Department must show, by clear and convincing evidence, that termination is the least restrictive means to prevent serious harm to the child. In this case, the trial court did not err as it considered the relevant factors and made the required factual findings. In so doing, the court found termination of parental rights was the least restrictive means of protecting the minor child from harm because the child had not seen the Father since tiny infancy and did not know him. The appeals court affirmed but remanded to the trial court to consider access between the Father and the minor child.

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