Weekly Law Update on Florida Divorce & Child Custody Cases

Weekly summaries of decisions made by Florida Court of Appeals on actual divorce, child custody, child support and alimony cases.

Florida Divorce & Family Law Update for Week Ending January 17, 2016

January 19, 2016

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

Case:              J.P. v. D.C.F.
Court:            First District Court of Appeal.
Trial Judge: Marci L. Goodman.
Attorneys:     Crystal McBee Frusciante, Dwight O. Slater.
Issues:            Termination.

Holding:   A finding that evidence is clear and convincing attracts a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evidentiary support. This standard of review is highly deferential. Prior to terminating a parent's rights under Florida statutes, several requirements must be met.

The trial court must find the children's life, safety, or health would be threatened by continued interaction with the parent, regardless of the provision of services.
The Department must show that there is no reasonable basis to believe a parent will improve and termination is in the child’s best interest.
Termination of parental rights must meet the least restrictive means test.

In this case, the trial court did not err as its findings were supported by competent, substantial evidence. A statutory ground for termination of parental rights was proven, the evidence supported the court’s finding that termination was in the child’s manifest best interest, and termination of parental rights passes the least restrictive means test. Using the “highly deferential” standard of review applied to termination of parental rights cases, the appeals court affirmed.

Case:              J.F. v. D.C.F.
Court:            Second District Court of Appeal.
Trial Judge: Scott Brownell.
Attorneys:      Patrick R. Cunningham, Pamela Jo Bondi, Meredith K. Hall, David Krupski.
Issues:            Termination.

Holding:        Florida statutes requires the trial court to find by clear and convincing evidence that at least one of the statutory grounds for termination exists. The amendment to section 39.806(1)(f), effective on July 1, 2014, which applied to this matter, provided that proof of a nexus between egregious conduct to a child and the potential harm to the child's sibling is not required. Prior to the amendment, the case law required proof of nexus, which was often provided by expert testimony. No one challenged the constitutionality of the amendment on the ground that it could not withstand the strict scrutiny required for statutes that impact a fundamental right.

In this case, the trial court did not err as there was competent, substantial evidence supporting termination as to each child on at least one of the grounds enumerated in section 39.806, Florida Statutes (2014). The appeals court affirmed, however, wrote to address the elimination of the "nexus" requirement such that trial courts may wish to take extra care in the application of this statute until any questions concerning its constitutionality have been resolved.

Case:              N.B. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge: Cindy Lederman.
Attorneys: Eugene F. Zenobi, Kevin Coyle Colbert, Karla Perkins, Kelley Schaeffer (Sanford).
Issues:            Termination.

Holding:        To terminate parental rights, the State must demonstrate by clear and convincing evidence: (1) the existence of one of the statutory grounds under Florida statutes; (2) that termination is in the best interest of the child; and (3) that termination is the least restrictive means of protecting the child from harm. The standard of review for challenges to the sufficiency of the evidence supporting a termination of parental rights is whether the trial court’s order is supported by substantial competent evidence. Facial constitutional attacks and attacks involving fundamental liberty interest, such as parental rights, may be raised for the first time on appeal. Florida statutes authorize the filing of a petition for termination of parental rights when on three or more occasions the child or another child of the parent or parents has been placed in out-of-home care and the conditions that led to the placement were caused by the parent or parents. When a statute impinges on a fundamental liberty interest, such as parenting one’s child, an appeals court must analyze the constitutionality of the statute under a strict scrutiny standard. The State must establish at least one statutory ground by clear and convincing evidence. It must also establish by clear and convincing evidence that termination is in the manifest best interest of the children and that termination is the least restrictive means of protecting the children from harm.

In this case, the trial court did not err in rendering its order as it was based on the record which contained competent evidence establishing the statutory grounds for termination exist, specifically that termination was in the manifest best interest of the children and was the least restrictive means of protecting the children from harm. The appeals court affirmed.

Case:              D.C.F. v. J.S. and S.I.
Court:            Fourth District Court of Appeal.
Trial Judge: Michael Heisey.
Attorneys:     Rosemarie Farrell, Laura E. Lawson, T. Charles Shafer, Ryan Thomas Truskoski.
Issues:            Termination.

Holding:         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.
the parent of a child is incarcerated and the court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and, for this reason termination is in the best interest of the child.

When determining harm, the court shall consider the following factors:

a. The age of the child.
b. The relationship between the child and the parent.
c. The nature of the parent’s current and past provision for the child’s developmental, cognitive, psychological, and physical needs.
d. The parent’s history of criminal behavior, which may include the frequency of incarceration and the unavailability of the parent to the child due to incarceration.
e. Any other factor the court deems relevant.

In this case, the trial court erred in denying the termination of both parents when the Department proved by clear and convincing evidence that, by applying the statutorily mandated factors, continuing the parental relationship with the incarcerated father would be harmful to the child and, for this reason, termination of the father’s parental rights is in the child’s best interests. First, the court did not address the relationship between the child and the father using the statutory factors. The Department proved by clear and convincing evidence that the father and the child have no relationship. Second, the court did not address the father’s current and past provision for the child’s developmental, cognitive, psychological and physical needs. Third, regarding the father’s history of criminal behavior, the court merely noted that the father’s commission of armed burglaries and felony assault with a firearm resulting in injury was “disturbing.” The court did not address the fact that this was the father’s second conviction for armed violent offenses or how the resulting incarceration caused his prolonged unavailability to parent. Fourth, while the court mentioned the child’s age, the court did not address the child’s age when considering the harm flowing from the father’s prolonged unavailability to parent.

The appeals court reversed the denial of the termination of the Mother and the Father, respectively.

Case:              Tatum v. Triana-Tatum
Court:            Fifth District Court of Appeal.
Trial Judge: Robert M. Evans.
Attorneys:     Carlton Pierce, Oscar Gonzalez, Jr.
Issues:            Child Support, Relocation.

Holding: Retroactive child support begins to run from the date the petition for modification is filed. In this case, the trial court erred when it set as the accrual date for retroactive child support, a date prior to that on which the Father’s supplemental petition for modification was filed. The appeals court remanded for recalculation of child support arrearages.

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Florida Divorce & Family Law Update for Three Weeks Ending May 10, 2015

May 12, 2015

Case:              Santos v. Santos
Court:             Second District Court of Appeal.
Trial Judge: Amy Smith.
Attorneys:     Christine Greider, Justin C. Carlin, James W. Chandler.
Issues:            Parenting, Child Support.

Holding: The use of outdated financial information in calculating a child support award can constitute reversible error. In this case, the trial court erred in its modification of the child support plan in the final judgment when it used outdated financial information from both the Former Wife and the Former Husband in calculating the amount of child support. The appeals court reversed the final judgment with respect to the child support modification and remanded for the trial court to reconsider the support award in light of the parties' updated financial information.

Case:              Robertson v. Robertson
Court:             Fourth District Court of Appeal.
Trial Judge: Merrilee Ehrlich.
Attorneys:     John T. David, Rhoda Sokoloff.
Issues:            Injunction for Protection.

Holding: Florida Statutes (2013), criminalizes a person who wilfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person. To harass, is to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose. This “course of conduct” includes “a series of acts over a period of time, however short, which evidences a continuity of purpose.” In this case, the trial court did not err in entering the injunction insofar as surveillance-based evidence showed three incidents, which were further verified by Appellant’s e-mail to Appellee admitting to being at her residence, established a course of conduct sufficient to support the trial court’s entry of the injunction against Appellant.

Case:              Plummer v. Forget
Court:             Fifth District Court of Appeal.
Trial Judge: Dan Traver.
Attorneys:      Patrick Michael Megaro, Jennifer M. Manyen.
Issues: Injunction for Protection.

Holding: A person commits the act of stalking by wilfully, maliciously, and repeatedly following, harassing, or cyberstalking another person. To harass another person means to engage in a course of conduct directed at that specific person which causes substantial emotional distress to him or her and serves no legitimate purpose. A course of conduct is a series of actions, over a period of time, which evidences a continuity of purpose. Each incident of stalking must be proven by competent, substantial evidence. When evaluating whether competent, substantial evidence supports a trial court's ruling, legal sufficiency, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal. In determining whether each incident of harassment causing substantial emotional distress has been established to support a finding of stalking, courts use a reasonable person standard, not a subjective standard. In this case the trial court erred in entering the injunction for protection as the evidence was legally insufficient to support doing so. The appeals court reversed.

Case:              Beckstrom v. Beckstrom
Court:             Fourth District Court of Appeal.
Trial Judge: Amy Smith.
Attorneys:      Betty C. Resch, Sean P. Sheppard.
Issues:            Alimony, Attorney’s Fees.
Holding: Attorney’s Fees

Despite the lack of a transcript and an adequate record, when the error appears on the face of the judgment, it should be corrected. A trial court may order a party to pay a reasonable amount for attorney’s fees. The trial court is required to consider the financial resources of both parties and make findings regarding their respective financial needs and abilities to pay. Failure to do so requires reversal. The trial court also has discretion to allow payment of an award of attorney’s fees over time, but it must set out a factual basis for imposing the specific payment plan selected. In this case, the trial court found the Former Wife was in need of attorney’s fees, but did not make a finding as to the Former Husband’s ability to pay and did not set forth any factual basis for imposing this specific payment plan. The appeals court reversed the judgment on this issue and remanded the case to the trial court to make the requisite written findings.

Life Insurance Policy

Under the invited error rule, a party cannot successfully complain about an error for which he or she is responsible or of rulings that he or she invited the court to make. In this case, the trial court did not err in ordering the Former Husband to purchase a life insurance policy and include such a provision in his proposed final judgment when the Former Husband so agreed earlier in the proceedings. The appeals court affirmed on this point.

Case:              Gilroy v. Gilroy
Court:             Second District Court of Appeal.
Trial Judge: Amy M. Williams.
Attorneys:     Jane H. Grossman, Peter N. Meros.
Issues:            Time-sharing, Child Support.

Holding: Florida Family Law Rules of Procedure require the filing of a financial affidavit in supplemental dissolution proceedings, with service within 45 days of service of the initial pleading on the respondent. The Rules provide a continuing duty to supplement financial affidavits upon a material change in financial circumstances. The requirement to provide a financial affidavit in supplemental proceedings is mandatory and cannot be waived by the parties. As well, a request for a continuance must be entertained, in order to properly present evidence regarding the relevant issues. In this case, the trial court erred in denying the Former Husband's request for a continuance when the Former Wife did not serve and file her financial evidence in compliance with the Rules and giving the Former Husband sufficient time to properly review it and prepare. The appeals court reversed and ordered a new hearing on the issue of child support and directed that discovery be conducted prior to the final hearing on remand.

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

Holding: In termination of parental rights cases, the standard of review is highly deferential. The trial court's findings must be supported by competent substantial evidence. In order for parental rights to be permanently and involuntarily severed, the state must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child. As parental rights constitute a fundamental liberty interest, the state must establish in each case that termination of those rights is the least restrictive means of protecting the child from serious harm. Florida statutes provide that the availability of a placement with a relative may not be considered as a ground to deny the termination of parental rights. However, in this case the applicable test was whether termination was the least restrictive means of protecting a child from serious harm. In this case, the trial court erred as it found the least restrictive means of achieving permanency and held that termination was the least restrictive means of protecting the children from harm. The appeals court reversed.

Case:              Sisca v. Sisca
Court:             Fourth District Court of Appeal.
Trial Judge: Thomas H. Barkdull, III.
Attorneys:      Roger Levine, Amy D. Shield, Jonathan M. Streisfeld, Michael B. Gilden.
Issues:            Alimony, Attorney’s Fees.

Holding:    Under Florida statute, awards of attorney’s fees must be based on evidence that demonstrates the requisite need and ability to pay. An obligor should not be made to invade certain assets and investments if there is evidence the obligee has their own assets upon which he or she could rely. In this case, the trial court erred in ordering the Former Wife to pay the Former Husband’s attorney’s fees despite evidence showing her net income was lower than his. Rather, the trial court based its decision on financial evidence showing her investments, liquid assets, were worth more than his. However, based on their respective net monthly incomes, to pay his fees, the Former Wife would have to invade the liquid assets, while his financial evidence showed he had investments and other assets on which he could rely. Under these circumstances, it was an abuse of the trial court’s discretion to require the Former wife to pay the Former Husband’s fees. The appeals court reversed the fee awards.

Case:              D.S. v. D.C.F.
Court:             Fourth District Court of Appeal.
Trial Judge: Hope Bristol.
Attorneys:   Antony P. Ryan, Paulina Forrest, Pamela Jo Bondi, Carolyn Schwarz, Patricia Murphy Propheter.
Issues:            Termination.

Holding: Termination of parental rights by the state requires clear and convincing evidence establishing one of the enumerated statutory grounds including risk to the child; that termination is in the manifest best interest of the child; and that termination is the least restrictive means of protecting the child from harm. Grounds for establishing termination can include the incarceration of a parent and whether the period of time for which the parent will be incarcerated will constitute a significant portion of the child’s minority. In 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. The court must look both at the length of the incarceration as well as its effect on the child’s need for permanency. The state must prove that termination is in the best interest of the child and the least restrictive means of protecting him or her from harm. In this case the trial court was correct in terminating for the minor child who had been in foster care, the foster parents anticipated adopting him and he did not wish to see his father. The state proved same by clear and convincing evidence. That child’s need for permanency (being adopted) was paramount, supported by competent substantial evidence, in the manifest best interest of the child and was the least restrictive means to prevent harm to him.

As for the children living with a relative, the trial court erred in terminating as the state did not establish grounds for same. The children were living with a relative, and the Father maintained as close a relationship as his incarceration has allowed and the finding that his incarceration amounted to a significant portion of the children’s minorities was not supported by substantial and competent evidence. Nor was it shown that termination was in the children’s best interest nor the least restrictive means to prevent harm to the children. The appeals court affirmed the termination regarding the one child parental but we reversed the termination as to the other children.

Case:              Brandon-Thomas v. Brandon-Thomas
Court:             Second District Court of Appeal.
Trial Judge: John E. Duryea, Jr..
Attorneys:     Luis E. Insignares, Brian J. Kruger, Michael E. Chionopoulos, Pamela Jo Bondi, Allen Winsor, Adam S. Tanenbaum.
Issues:             Same-Sex Marriage.
Holding: The trial court was reversed for dismissing a same-sex divorce case based on lack of jurisdiction. The appellate court remanded to the trial court to consider the merits of the divorce petition.

Like those federal court decisions recognizing same-sex marriages, a same-sex divorce must be analysed principally for compliance with the Equal Protection and Due Process Clauses of the federal constitution to the extent that the trial court's order denied relief to the appellant. The application of the constitutional principles of equal protection and due process apply to the dissolution of same-sex marriages. The issues at hand require key focus. The primary issues at hand involve the rights of a same-sex couple, validly married in another state and now living in Florida, to seek a dissolution of marriage in Florida. A heterosexual couple under similar circumstance could easily invoke a Florida trial court's jurisdiction. More precisely defining the issue and the right enables easier application of the constitutional principles of equal protection and due process.

In this case, the court is petitioned to assist in returning the parties to single status – to adjust the parties' financial and property relationships and provide some judicial direction concerning child custody. The parties are not asking a Florida court to form a marital union, they seek disengagement from a broken relationship. Upon dissolution of marriage, the parties will each be single. Apart from the mandates of any final judgment, any state or federal obligations or benefits attendant to marriage presumably will cease. A well-settled general framework is utilized for the constitutional analysis. The substantive component of the Due Process Clause checks state authority to enact untenable measures, even if enacted with appropriate procedural safeguards. Substantive due process protects fundamental rights. As the Florida Constitution and legislation classify same-sex couples differently than heterosexual couples for purposes of dissolution of marriage, the proper definition of the right sought plays a leading role. In this case, the state failed to identify and argue the proper right. Rather, it pursued analysis and argument related to Florida’s ban of same-sex marriage and regarding Florida laws, under which, sexual orientation is not a protected class entitled to strict-scrutiny analysis. As the state bears the burden of presenting only a rational basis for its legislation, on the arguments presented, it fell short and tied the analysis to the need to promote procreation and have children raised in a particular family situation. The state made this a same-sex issue when it is not. Once the real issues are defined that becomes apparent. However, even if Florida's purported interest in procreation and having children raised in a heterosexual household were rational reasons to ban same-sex marriage, the state did not establish why or how prohibiting a validly married same-sex couple from seeking a divorce in Florida advances either of these interests. The state has not articulated how prohibiting a trial court from dissolving a same-sex marriage, validly entered into in another state, will promote a rise in procreation. Nor does the state explain how denying a couple a divorce will optimize what it sees as an ideal environment for raising children. Indeed, in the context of a marriage dissolution, the trial court will be in an ideal situation to protect the best interest of the child parented by this couple. The appeals court did not discount the state's reason for enacting its laws and noted that a court should defer to the state when it has provided a basis for its statutory and constitutional classifications. However, such deference presupposes that the state has a rational basis for its position, which in this case, was not established.

Case:              Gilliard v. Gilliard
Court:             Fifth District Court of Appeal.
Trial Judge: Linda Schoonover.
Attorneys:      David L. Robold, Shannon L. Akins, Nicholas A. Shannin, Patrick John McGinley.
Issues:            Alimony, Equitable Distribution, Attorney’s Fees.
Holding: Alimony
In order to award alimony, a court must make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. The burden to show his or her financial need and the spouse’s ability to pay is on the party requesting alimony. A marriage having a duration of greater than 7 years but less than 17 years is considered a moderate-term marriage and there is no presumption for or against permanent alimony. Permanent alimony may be awarded following a moderate-term marriage if such an award is appropriate based upon clear and convincing evidence after consideration of the factors set out by statute. The purpose of permanent alimony is 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 ability to pay alimony should be based on the party’s net, not gross, income.

In this case, the trial court erred in awarding alimony based on the Former Husband’s gross income. The trial court also erred in considering Former Husband’s future retirement benefits as both current income and a marital asset, included in its distribution of the parties’ marital assets when the future retirement benefits should be considered in the division of marital assets. The trial court erred further when it failed to make specific written findings regarding the standard of living established during the marriage, the contributions of each party to the marriage, or the tax treatment and consequences of awarding alimony.

Equitable Distribution

Under Florida statute, in distributing marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal. Although a trial court may distribute marital assets and liabilities unequally, it is required to justify such an award based on all relevant factors under statute. A court should make enumerated findings related to each factor under statute. While parties may agree to a specific distribution of some of their assets and liabilities in a mediated or other settlement agreement, the court should placed values on the various items of personal property because each division and distribution of a marital asset and liability is interrelated to form an overall scheme fair to both parties.

The trial court erred in awarding an asset to the Former Wife firstly in the equitable distribution scheme and then a second time in the attorney’s fees. The trial court erred in failing to place a value on the parties’ automobiles, furniture, and furnishings distributed pursuant to the partial mediation agreement and erred when it ordered the Former Husband to make mortgage payments if he failed to make his alimony payments. Proper recourse there would have been to impose sanctions for wilfully failing to comply with a court order. The trial court also erred in failing to consider the consolidation loan as a marital liability.

Attorney’s Fees

An award of attorney’s fees must be based on clear and cogent evidence of the parties’ respective need and ability to pay. Such findings must be housed in specific factual findings which also include those regarding the attorney’s work (ie: reasonable number of hours spent and the reasonable hourly rate.) In this case, the trial court did not err in that regard, but did improperly include an asset that was already distributed when it conducted the ability to pay analysis.

The appeals court reversed the entire distribution plan and remanded for reconsideration.

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Florida Divorce & Family Law Update for the Week Ending January 18, 2015

January 19, 2015

Case:               D.C.F. & Guardian ad litem v. T.S. & A.B.
Court: First District Court of Appeal.
Trial Judge: David M. Gooding.
Attorneys:      Ward L. Metzger, Kelley Schaeffer, Crystal McBee Frusciante.
Issues:            Termination.
Holding:     In ordering termination, a trial court must find, on sufficient and cogent evidence, that the requirements under Florida statute are met and that termination of parental rights is in the manifest best interest of the child or children. Further, it is not appropriate to create an unsolicited permanent guardianship for the sole purpose of avoiding a least restrictive means outcome. Nor is it proper to rely on the availability of a non-adoptive placement with a relative in assessing the least restrictive means of addressing a situation.

In this case, the trial court erred in finding that the Department of Children and Families had both established the statutory factors for termination and that termination was in the best interests of the child. Specifically, the trial court improperly relied on the availability of a non-adoptive placement with a relative when it assessed the least restrictive means of addressing the matter, which is expressly prohibited by statute. The appeals court remanded for the trial court to determine whether termination was appropriate, using the correct legal factors, and directed to re-evaluate the availability of least restrictive means without considering the non-adoptive placement with a relative.

Case: Feuer v. D.C.F.
Court: Third District Court of Appeal.
Trial Judge: Not stated in opinion.
Attorneys: Leslie Hinds St-Surin.
Issues: Procedure.

Holding: A party is presumed to have received sufficient notice of a proceeding if it was mailed to him or her in conformity with the systematic business practice of the Office of Appeal Hearings. However, this is a rebuttable presumption, and a party is entitled to an evidentiary hearing on the issue of whether he or she received notice of procedural matters, including the issuance of an order. In this case, the issue is required to be considered by the trial court. The appeals court reversed the trial court’s decision and remanded for further proceedings.

Case:               D.C.F. v. J.B.
Court:             Third District Court of Appeal.
Trial Judge: Maria I. Sampedro-Iglesia.
Attorneys:      Javier Ley-Soto, Leslie Hinds St-Surin, Angela Vigil.
Issues: Costs.

Holding:    Unless a statute or a constitution authorizes the court to do so, it is a violation of Florida’s doctrine of separation of powers for a court to direct an executive department on how to expend funds appropriated to the department. A court may order an executive department to spend funds when a statute or constitution authorizes a court to do so. However, courts have rejected the idea that there is a doctrine of inherent judicial power that allows a court to direct how an executive department exercises its discretion to spend funds appropriated to the department. Rather, the courts have repeatedly held that the judicial branch may neither interfere with the legislative branch by requiring funds to be spent by an executive agency in a manner not authorized by statute, nor interfere with an executive agency’s discretion in the spending of appropriated funds.

In this case, the trial court erred because no statute authorized the trial court to order the Department to pay for the travel of the pro bono Attorney Ad Litem for the purpose of facilitating the minor child’s therapy. The order violated the doctrine of separation of powers. Florida’s Constitution provides for the separation of powers between the three branches of state government. Under this doctrine, the judicial branch must not interfere with the discretionary functions of the legislative or executive branches of government absent a violation of constitutional or statutory rights. The appeals court quashed the order.

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Florida Divorce & Family Law Update for the Three Weeks Ending December 26, 2014

December 27, 2014

Case:      Geraci v. Geraci
Court: Second District Court of Appeal
Trial Judge:   Richard A. Weis, Cheryl K. Thomas
Attorneys:    Patricia K. Kuhlman, David A. Maney, Mark A. Linsky, Raymond T. Elligett, Jr., Amy S. Farrior, David M. Carr, Matias Blanco, Jr.
Issues:            Property Distribution, Alimony, Antenuptial Agreement

Holding: A court may determine that an antenuptial agreement was abandoned or rescinded by the conduct of the parties during their marriage. This determination must be based on competent, substantial evidence of the parties’ conduct during the marriage. In this case, the trial court did not err in holding that, after reviewing all the evidence as to the parties’ conduct, the antenuptial agreement did not apply to an alimony or equitable distribution upon dissolution. However, the trial court was unclear as to its consideration regarding a certificate of deposit the Former Wife allegedly removed prior to the property division. As such, the appeals court affirmed on the issues of division and distribution and remanded the issue the certificate of deposit for consideration and an amended judgment.

Case:              Porter v. Porter
Court:             Second District Court of Appeal
Trial Judge: Marion L. Fleming
Attorneys:     Joseph J. Registrato, Seth R. Nelson, Kathryn M. Ashley
Issues:            Equitable Distribution, Parenting, Support.

Holding: If parties to a dissolution properly enter into stipulations regarding equitable distribution, then the stipulations bind the parties and also the court. In this case, the trial court erred in refusing to enforce the parties' stipulation regarding a vehicle and associated debt. In the final equitable distribution scheme the parties' debt, which exceeded their assets, was equally distributed between the parties. The trial court later made a further distribution based on a later unsworn representation by the Former Wife's counsel. No one disputed that the parties properly entered into the stipulations. The appeals court reversed the equitable distribution award and remanded with directions for the court to distribute the particular asset and its associated debt to the Wife. The trial court was also directed to refashion the portions of the equitable distribution scheme to which the parties did not stipulate in order to effect an approximately equal a distribution of the parties' debt.

Case:              Brummer v. Brummer
Court:             Fifth District Court of Appeal
Trial Judge: Willard Pope
Attorneys:   Robert H. McLean, Henry G. Ferro
Issues:            Parenting, Property Distribution, Child Support

Holding: Ordering Psychological Evaluations & Obligations to Pay: When formulating a time-sharing plan, a court may order a psychological evaluation of the parties and the children in concert with findings that this is in the best interests of the children. The court may also order one of the parties to pay for the evaluation, but it must find that the party has the ability to do so. In this case, the trial court determined the psychological evaluation of the parents and children was required and the Father was obligated to pay for it. However, the trial court did not make the necessary findings as to the children’s best interests and the Father’s ability to pay. The appeals court reversed the portion of the Final Judgment addressing the evaluation and its payment and remanded to make determinations on those issues.

Non-Marital Property Determinations:

The determination and valuation of non-marital property must be done on competent and substantial evidence. In this case, the trial court erred in that it failed to properly consider the non-marital assets of the Former Husband and their characterization prior to distribution. The relevant portion of the equitable distribution plan was reversed, and on remand, the trial court was directed to award to the Father his non-marital assets and properly determine the value of the firearm collection.

Imputation of Income:

Finally, the imputation of income in the Final Judgment for purposes of child support determinations must be supported by competent, substantial evidence. In this case, the trial court erred in imputing income to the Father in the absence of competent, substantial evidence. Accordingly, that part of the final judgment is reversed, and on remanded.

Case:              Assimenios v. Assimenios
Court:             First District Court of Appeal
Trial Judge: Linda F. McCallum
Attorneys:     William S. Graessle, Jonathan W. Graessle, Barry S. Sinoff, Michael J. Korn
Issues:            Child Support, Parenting.

Holding: Imputing income to a party, or making a finding that they are voluntarily unemployed or underemployed, must be done in reliance on sufficient evidence. Notice and an opportunity to be heard is required when facing proceedings for breaching a parenting or support order. In this case, the trial court erred in ordering the Former Wife responsible for the full cost of missed or cancelled appointments required under a parenting plan without affording her the opportunity to be heard and present evidence on point. In so doing, the trial court did not assess if her conduct was intentional or not, which is improper. The appeals court reversed the portion of the order imputing income to the Former Wife and remanded the case to the trial court to reconsider the issues.

Case:              Winder v. Winder
Court:             First District Court of Appeal
Trial Judge: Elzie S. Sanders
Attorneys:     Justin D. Jacobson, J. Mark Dubose, Jr., Karen S. Yochim
Issues:           Equitable Distribution, Alimony, Attorney’s Fees

Holding: It is improper to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings. However, if a spouse dissipates a marital asset during dissolution, resulting in a finding of misconduct by the trial court, then that asset is assigned to the spending spouse. In determining such misconduct and that a spouse has dissipated marital assets, the trial court must find the spouse acted intentionally. Such a finding is based on evidence showing that the marital funds were used for one party's own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown. Misconduct is not shown simply by mismanagement or by the squandering of marital assets in a way of which the other spouse disapproves. A trial court’s ruling on equitable distribution is reviewed for an abuse of discretion.

In this case, the trial court erred in finding dissipation when it did not find misconduct on the part of the Former Husband in his handling of two marital assets. The evidence showed that certain funds were dissipated, but not improperly. Rather, the funds were used to pay marital expenses, including temporary support for the Former Wife, while the dissolution was pending. On remand, the trial court was directed to exclude the funds received from the assets from the equitable distribution scheme.

Alimony

A trial court’s award of permanent alimony is reviewed for an abuse of discretion. In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in Florida statute supporting an award or denial of alimony. The test for determining an award of alimony is whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance, as based on the evidence. The purpose of permanent periodic alimony is not to divide future income to establish financial equality. Marriages of less than 17 years in duration are of moderate duration (“grey-area” marriages) in which there is no presumption for or against permanent alimony. Permanent alimony may be awarded following a marriage of moderate duration, if such an award is appropriate based upon clear and convincing evidence related to the enumerated factors (including but not limited to the financial resources of each party, the value of marital and non-marital assets and liabilities distributed to each, the standard of living established during the marriage, the contribution of each party to the marriage, and the sources of income available to either party.) Finally, 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 erred in ordering permanent periodic alimony for the parties’ 10-year marriage in the absence of adequate factual findings as to the financial resources of each party and other relevant factors under statute. As this was a “grey-area” marriage, such findings in the final judgment of dissolution of marriage were required. The trial court’s failure to make such factual and written determinations precluded meaningful appellate review. In addition, the alimony award was reversed because the trial court failed to expressly find that no other form of alimony would be appropriate before awarding permanent alimony. On remand, the trial court was directed to take into consideration the effect of the appeal court’s holding regarding the exclusion of the funds from the two dissipated marital assets, as it would impact the financial resources of both parties. Further, given that the Former Husband’s current ability to pay alimony is at issue, the trial court was directed that, should it be faced with a situation where the Former Wife has a clear need for permanent alimony in the absence of his current ability to pay, then a nominal award of permanent alimony would preserve the trial court’s jurisdiction to revisit this matter, until a substantial change in the parties’ respective financial circumstances arises.

Attorney’s Fees

An award of attorney’s fees is based on the need of the party seeking the fees and the ability of the other party to pay the fees. The trial court must also make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors. A dissolution order directing a party to pay the other party’s fees and costs, which recites simply that the total amounts ‘are reasonable time spent and hourly rates,’ is insufficient.

In this case, the trial court erred as it made an award of attorney’s fees for the Former Wife when it did not make specific findings as to her need, the Former Husband’s ability to pay, and the reasonableness of her attorney’s fees and costs. As such, the appeals court was unable to accurately evaluate the propriety of the award. The appeals court therefore reversed the order on attorney’s fees and remanded to the trial court for reconsideration in light of the changes in the parties’ relative financial resources following the trial court’s ultimate ruling.

Case:              Wood Jr. v. Wood
Court:             First District Court of Appeal
Trial Judge: Mark J. Borello
Attorneys:   Denise Watson, William S. Graessle, Michael J. Korn
Issues:            Child Support, Imputing Income

Holding: Florida statute requires imputation of income to an unemployed or underemployed parent if such status is found by the court to be voluntary on that parent’s part. The trial court must undertake a two-step analysis of the circumstances and make findings based on cogent and substantial evidence. First, the trial court must conclude that the termination was voluntary; second, the court must determine whether the individual’s subsequent unemployment or underemployment resulted from the spouse’s pursuit of his or her own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received. While a parent’s motive in voluntarily quitting a job is relevant, it is simply one factor to be considered.

The party seeking a downward modification in their child support obligation bears the “heavier burden” where the original child support amount was by agreement of the parties.

The standard of review governing a trial court’s decision to modify child support and also to impute income for the purposes of calculating child support obligations is abuse of discretion.

In this case, the trial court erred when it abused its discretion when it granted the Former Husband’s motion to reduce his child support obligation; eliminate his arrearages; remove the security requirement for his payments; and impute income to the Former Wife when the evidence before it was insufficient and when it failed to undertake the required two-step analysis for imputing income. The trial court improperly imputed income to the Former Wife solely because she voluntarily left her new employment and its order contained no particularized findings related to the current job market, her recent (5 years) work history, occupational qualifications, or the prevailing earnings level in the local community. As well, the Former Husband’s motion to reduce his child support obligation was not supported by evidence sufficient to discharge his burden to establish grounds for a reduced child support obligation. He simply relied on a chart/child support worksheet indicating a reduction in his net income. The appeals court reversed and remanded with instructions for the trial court to reconsider the matters on proper evidence.

Case:              Caine v. Caine
Court:             First District Court of Appeal
Trial Judge: Mary Polson.
Attorneys: James M. Levy, E. Jane Brehany.
Issues:            Equitable Distribution.

Holding: Florida law holds that a party is not entitled to any credits or setoffs upon the sale of the marital home unless the parties' settlement agreement, final judgment of dissolution of marriage, or final judgment equitably distributing assets or debts specifically provides that certain credits or setoffs are allowed or given at the time of the sale. If the parties do not have a settlement agreement involving the marital home, then the court shall consider specific factors before determining credits or setoffs in the final judgment. These include, but are not limited to; exclusive use and possession of the marital home is being awarded; alimony and child support awards and if such awards are being awarded to address expenses related to the marital home; value of the marital home to the party in possession and any other factor necessary to bring about equity and justice between the parties.

In this case, the trial court erred when it denied the Former Husband’s request for a set off of the amount of the fair rental value of the former marital home given that the final judgment was silent concerning his entitlement to a credit or setoff in the marital home. The final judgment provided that all proceeds from the sale of this residence shall be equally divided by the parties after accounting for the expenses allocated to each party as stated above. The trial court failed to consider the required factors under statute. The appeals court remanded the credit/setoff issue for further proceedings.

Case:              Topel v. Topel
Court:             Fifth District Court of Appeal.
Trial Judge: Sally D.M. Kest.
Attorneys:      Sherri K. Dewitt, Marcia K. Lippincott.
Issues:            Child Support, Spousal Support.

Holding: Although trial judges have broad discretion in setting temporary alimony awards, any such award must be supported by competent, substantial evidence that demonstrates the need for support and the paying spouse's ability to pay. The determination of the ability to pay alimony should be based on the party's net income. In this case, the trial court erred in relying on the gross income figure for the Former Husband, and ordering a temporary support award which exceeded his ability to pay. The appeals court vacated the temporary relief order and remand for reevaluation of all issues and the Former Husband making full and current disclosure of his income and expenses.

Case:              Berry v. Berry
Court:             First District Court of Appeal.
Trial Judge: Angela C. Dempsey.
Attorneys:      William E. Whitlock, III, Ethan Andrew Way.
Issues:            Dissolution, Procedure.

Holding: Florida Rules of Judicial Administration provide that prior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration. Such a motion must be filed within 20 days of the order of disqualification, unless good cause is shown for a delay in moving for reconsideration or other grounds for reconsideration exist. In this case, the trial court erred in granting further relief for the Former Wife while the appeal was pending. Specifically, the Former Wife appealed an order denying her motion to vacate the final judgment of dissolution of marriage and set aside the parties’ martial settlement agreement. Then, while the appeal was pending, the trial court granted her petition for writ of prohibition upon finding that an ex parte conference held during a hearing on her motion to vacate constituted a legally sufficient basis for the judge’s disqualification. The appeals court held that, pursuant to the Florida Rules of Judicial Administration, the proper procedure would be for the Former Wife to seek relief by filing a motion requesting the successor judge to reconsider the disqualified judge’s order. However, since she was precluded from filing such a former motion pending the appeal, the court remanded with directions that she be enabled to file her motion within twenty days of the issuance of the appeals court ruling.

Case:              Oliver v. Stufflebeam
Court:             Third District Court of Appeal.
Trial Judge: George A. Sarduy.
Attorneys:      Cristina Alonso, Elizabeth F. Schwartz, Daniel B. Rogers, Shannon P. Minter.
Issues:            Dissolution, Same-Sex Marriage.

Holding: Florida law does not recognize the validity of same-sex marriages. As such, in Florida, a petition for dissolution of marriage lacks a case or controversy, and therefore standing before the courts. Given Florida’s exclusive right, subject only to the confines of the Federal Constitution, to define both marriage and its dissolution, and the state of Florida’s recognition of marriage as only between a man and a woman, then same-sex couples do not have standing to seek the dissolution of a marriage that, by Florida law, does not exist. An action for annulment may lie insofar as, in granting an annulment, Florida typically determines the validity of a marriage in accordance with laws of the place where the marriage occurred. However, a court need not recognize as valid marriage which is valid in the jurisdiction where consummated if such recognition would affront the public policy of the forum state. In this case, the trial court was correct in determining that a petition for dissolution of marriage lacks a case or controversy requiring the expenditure of judicial labor. The appeals court affirmed the dismissal of the petition for dissolution.

Case:   In Re: the adoption of K.A.G
Court:             Fifth District Court of Appeal
Trial Judge: Alicia Latimore
Attorneys:     Mark M. O’Mara, Lorna M. Truett, Alyssa Flood, Bryan S. Gowdy, Jessie L. Harrell, Thomas Wade Young, John R. Hamilton, Jamie Billotte Moses
Issues:            Adoption, Termination of Parental Rights

Holding: Under Florida statute, a child’s best interests are the paramount consideration when the court considers an adoption. The standard of review in a termination of parental rights case is highly deferential. The appeals court will review a judgment of adoption for substantial, competent evidence. A trial court’s finding of clear and convincing evidence will not be overturned unless it may be said that, as a matter of law, no one could reasonably find such evidence to be clear and convincing.

Additionally, Florida statute allows the trial court to terminate parental rights pending adoption if it determines, by clear and convincing evidence, and supported by written findings, that the parent has executed a valid consent to adoption. Such consent shall be obtained under and according to the requirements of relevant Florida statute. Therefore, before the trial court can consider the best interests of the child, it must first determine that the parent’s consent was properly given. A court may consolidate as many issues as is practical in adoption and dependency/termination proceedings and to conduct joint hearings or trials of any issues in related family cases.

Finally, a trial court is authorized, in its sound discretion, to appoint a guardian ad litem for a child in an adoption proceeding. Courts have the inherent authority to protect children by appointing guardians ad litem when appropriate.

In this case, the trial court erred when it dismissed the adoption petition of the child’s Grandmother as it failed to find that Father’s consent to the adoption was, or was not, valid. If the trial court determined Father’s consent was valid, it should have then determined, in the same proceeding, whether the Grandmother should be allowed to adopt the Child. The trial court had before it two separate questions: (1) whether the Father’s parental rights could be terminated based upon his consent; and (2) if so, was adoption by the Grandmother in the Child’s best interests. Different evidentiary burdens of proof apply to each determination. The termination of parental rights must be proven by clear and convincing evidence. The best interests determination is to be proven by a preponderance of the evidence. The trial court further erred in its determination that it was not authorized to appoint a guardian ad litem for the Child. In fact, the relevant statute authorizes the trial court, in its sound discretion, to appoint a guardian ad litem for a child in an adoption proceeding. In addition, courts have the inherent authority to protect children by appointing guardians ad litem when appropriate. However, the trial court was correct in its determination that the Father’s consent to termination of his parental rights was not unconditional, but rather, was conditioned on the trial court granting Grandmother’s petition to adopt Child.

The matters were remanded with directions that, if the trial court concludes that the adoption by the Grandmother is not in the Child’s best interests, then the Father’s consent to the termination of his parental rights is deemed withdrawn. Finally, the recent adoption of Florida Family Law Rule of Procedure amendments allow a court to consolidate as many issues as is practical in adoption and dependency/termination proceedings and to conduct joint hearings or trials of any issues in related family cases.

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