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 Update for Week Ending October 2, 2016

October 5, 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:             Koch v. Koch
Court:            First District Court of Appeal.
Trial Judge: Stanley H. Griffis, III.
Attorneys:     S. Scott Walker.
Issues:           Parenting.

Holding: Restrictions upon a noncustodial parent’s right to expose his or her child to his or her religious beliefs have consistently been overturned in the absence of a clear, affirmative showing that the religious activities at issue will be harmful to the child. However, Florida Statutes (2015) requires Florida courts to determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child. Religiously-motivated behavior with an impact on a child’s welfare cannot be ignored. The welfare and best interests of the children must prevail. In this case, the trial court did not err in restricting parenting and timesharing of the parties’ children and, in particular, in its injunction of the Father discussing any religious matters with his children during visitation, as he used religion against the Mother. The Father’s use and/or leverage of religious views was abusive to the children. The appeals court affirmed.

Case:             T.M. v. D.C.F.
Court:   Second District Court of Appeal.
Trial Judge: James V. Pierce.
Attorneys:   Ita M. Neymotin, David C. Chafin, Bernie McCabe, Leslie M. Layne.
Issues: Guardianship, Supervision.

Holding: Florida Statutes (2015) require a trial court placing child in a permanent guardianship to make specific considerations as to the child, the placement and the permanent guardian(s). The trial court’s order must be written and specify why the child's parents are not fit to care for the child and why reunification is not possible by referring to specific findings of fact. It must also give reasons why, among other things, a permanent guardianship is being established instead of adoption; specify the frequency and nature of visitation or contact between the child and his or her parents, grandparents and his or her siblings and order the permanent guardian not to return the child to the parent’s physical care and custody without the approval of the court. In this case, the trial court erred as its order placing the Mother’s children in permanent guardianship failed to make the findings required by law. Specifically, the trial court's order made no specific findings as to why the Mother was not fit to care for her children; why reunification was not possible; why the court ordered permanent guardianship rather than adoption; and it failed to order the permanent guardian not to return the children to her physical care and custody without approval of the court. The trial court did not conduct an evidentiary hearing on the motion for permanent guardianship and did not have before it competent and substantial evidence to support the findings. The appeals court reversed and remanded.

Case:             M.S. v. D.C.F.
Court:            Second District Court of Appeal.
Trial Judge: Emily A. Peacock.
Attorneys:    Scott L. Robbins, Pamela Jo Bondi, Christopher Lumpkin, Mary Soorus, Laura E. Lawson.
Issues:            Termination.

Holding: Florida Statutes (2014) provide that grounds for termination of parental rights may be established when the parent or parents engaged in conduct toward the child (or other children) that demonstrates continuing the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child. Florida Statutes also permits termination based upon incarceration if the court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and that termination is in the child's best interest. The trial court must consider to assist it with this determination: 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 did not err in its denial of the Mother’s motion seeking a new adjudicatory hearing based upon the alleged ineffective assistance of her court appointed counsel. Although 4 of the 5 grounds found by the trial court for termination were not supported by competent, substantial evidence, the trial court was correct in its finding that it would be harmful to the child to continue the relationship with the Mother, an incarcerated parent, under Florida Statutes (2014). The appeals court affirmed.

Case:             Guerra v. Guerra
Court:            Second District Court of Appeal.
Trial Judge: Mary C. Evans.
Attorneys:     Lisa P. Kirby.
Issues:           Attorney’s Fees.

Holding: It is error for a trial court to make prospective determinations purporting to decide whether support obligations will be dischargeable in bankruptcy. In this case, the trial court erred when it included in its order a provision characterizing the award of attorney's fees and costs as a form of support not dischargeable in bankruptcy or by any other means. The entry of the award was appropriate on the facts, but prospective determinations purporting to decide whether support obligations will be dischargeable in bankruptcy are improper. The appeals court reversed the relevant portion of the order and remanded.

Case:             N.G. v. D.C.F.
Court:            Fifth District Court of Appeal.
Trial Judge: Timothy R. Shea.
Attorneys:     David B. Falstad, Rosemarie Farrell, Richard S. Dellinger.
Issues:           Termination.

Holding: If a trial court terminates parental rights, it shall enter a written order of disposition briefly stating the facts upon which its decision to terminate the parental rights is made. In this case, the trial court erred as the final judgment terminating the Mother’s parental rights did not contain the findings of fact required by law. The appeals court reversed and remanded.

Case:             B.R. v. D.C.F.
Court:            Fifth District Court of Appeal.
Trial Judge: Timothy R. Shea.
Attorneys:     Aaron S. Baghdadi, Rosemarie Farrell, Richard S. Dellinger.
Issues:           Termination.

Case:             Coleman v. Bland
Court:            Fifth District Court of Appeal.
Trial Judge: Sally D.M. Kest.
Attorneys:     Carlton Pierce.
Issues:           Equitable Division, Attorney’s Fees.

Holding: Equitable Distribution

In this case, the trial court did not err when it denied the Former Wife’s claims regarding the Former Husband’s pension, and prior appeals had resolved the matter. Specifically, the trial court was correct as the Former Wife’s claims were: (1) barred by res judicata as they could have been raised in a prior appeal; (2) beyond the scope of remand on a prior appeal; (3) beyond the scope of the pleadings; and (4) lacked justification or supporting evidence. The appeals court affirmed.

Attorney’s Fees

The trial court erred in finding that the Former Husband was unable to pay appellate attorney’s fees. This finding contradicted its prior attorney’s fee award without any additional evidence or hearing. It was also unsupported by the record showing a large disparity in the parties’ incomes and the fact that the Former Wife prevailed on the significant issue on appeal and filed a timely motion for costs. The appeals court reversed and remanded.

Case:             D.R. & D.C.F. v. J.R., S.R., D.R. & G.A.L.
Court:            Fifth District Court of Appeal.
Trial Judge: Susan W. Stacy.
Attorneys:   H. Kyle Fletcher, Jr., Rosemarie Farrell, Eddie J. Bell, Heather Morcroft, Sara E. Goldfarb.
Issues:            Dependency, Guardianship.

Holding: The standard of review for a question of law in dependency proceedings is de novo. The Interstate Compact on the Placement of Children (ICPC) applies to out-of-state placements with natural parents. The ICPC was to ensure that a child is placed in a suitable environment. Once a court has legal custody of a child, it would be negligent to relinquish that child to an out-of-state parent without some indication that the parent is able to care for the child appropriately. In this case, the trial court erred in failing to comply with the requirements of the ICPC when it placed two of the parties’ minor children in the Father's custody (removing them from the Mother’s custody after issues of violence and abuse), in Massachusetts, without complying with the ICPC. However, the children were not required to be immediately returned to Florida. The appeals court reversed the portion of the final order terminating the trial court’s jurisdiction and remanded with instructions for the trial court to determine whether it would be in the children’s best interest for them to remain in the father's custody pending the completion of the ICPC process.

Case:             Clemens v. Clemens
Court:            Fifth District Court of Appeal.
Trial Judge: Dawn D. Nichols.
Attorneys:      Mark A. Skipper.
Issues:            Alimony.

Holding: Permanent alimony is used to provide for the needs and necessities of life for a former spouse as they were established during the marriage of the parties. For long-term marriages, an initial presumption in favor of permanent alimony exists. The can be rebutted by sufficient evidence. In this case, the trial court did not err in its denial of the Former Wife’s rehabilitative alimony. However, the trial court erred (abused its discretion) in denying her permanent alimony, specifically, when it found that she did not have a need for alimony based on the figures set forth in her most recent financial affidavit (based on her current living arrangements, where she was renting a single room in a friend’s residence). The trial court should have considered the necessities as they were established during the marriage of the parties. Further, as this was a long term marriage (19 years), there was an initial presumption of permanent alimony which the Former Husband did not rebut on the evidence. The appeals court reversed and remanded.

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Florida Divorce and Family Law Update for Week Ending August 21, 2016

August 24, 2016

Case:             Ketcher v. Ketcher
Court:            First District Court of Appeal.
Trial Judge: Linda F. McCallum.
Attorneys:     Brian P. North, Summer N. Boyd.
Issues:           Alimony.

Holding: Where a final judgment is reversed and remanded with specific instructions, the lower court has authority to conduct further proceedings in conformity with the instructions but the court cannot exceed the specific bounds of that instruction. The appellate court has inherent authority to enforce a mandate issued in a matter. In this case, the trial court erred when it, on remand, entered an amended final judgment that exceeded the scope of its mandate by changing the type of alimony awarded from permanent to durational. The prior opinion of the appellate court specifically and unambiguously directed the trial court to make additional findings concerning the parties’ incomes and expenses, and if necessary, to reconsider the amount of the alimony award. The opinion did not authorize the trial court to reconsider the type of alimony awarded. By changing the type of alimony awarded from permanent to durational, the trial court impermissibly exceeded the scope of the mandate. The appeals court granted the motion to enforce the mandate, quash the amended final judgment, and remanded for further proceedings consistent with its prior opinion.

Case:             Reider v. Reider
Court:   Second District Court of Appeal.
Trial Judge: Neil A. Roddenbery.
Attorneys:     Debra J. Sutton.
Issues:           Alimony.

Holding: Under Florida Statute, trial courts have the authority to enforce alimony payments with injunctions. Injunctive relief must be presented to the court for decision. The evidentiary record must be sufficient to support such injunctions and the injunctive order must contains a statement of the reasons why the injunctions were entered. In this case, the trial court erred in ordering certain measures to enforce the Former Husband's obligations under the parties’ judgment and Marital Settlement Agreement that expressly, or substantively, enjoin him to take, or refrain from taking, certain actions with respect to his non-marital property. These measures were not part of the claim for relief or set out in the pleadings. Furthermore, the evidentiary record was not sufficient to support these injunctions and the order on appeal contains no statement of the reasons why these injunctions were entered. One such provision threatens incarceration if he failed to sell a home he maintained in another state and use the resulting proceeds to satisfy an alimony arrearage. Another enjoins him from transferring any of the property listed on his financial affidavit except for purposes of satisfying the alimony arrearage. The appeals court reversed on point.

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

Holding: When ordering a party to pay toward child support arrears, the trial court must specify the amount of retroactive support owed in the final judgment or elsewhere. In this case, the trial court erred in ordering the Former Husband to pay a set monthly amount toward arrearage in child support when the final judgment (or the magistrate’s report, which the trial court approved) failed to state the amount of the retroactive child support owed. The appeals court reversed and remanded.

Case:             Manubens v. Manubens
Court:            Fifth District Court of Appeal.
Trial Judge: Mike Murphy.
Attorneys:     Mark A. Skipper, Sherri K. DeWitt.
Issues:           Parenting.

Holding: Certiorari jurisdiction lies to review an order compelling a mental examination. However, certiorari relief can only be granted if the trial court's order amounts to a departure from the essential requirements of the law, resulting in a miscarriage of justice. Florida Family Law Rules of Procedure govern the examination of persons in family law matters as to mental conditions. Under the Rules, a party may request any other party to submit to examination by a qualified expert when the condition that is the subject of the requested examination is in controversy. An examination is authorized only when the party submitting the request has good cause for the examination. The party submitting the request has the burden of showing that both the “in controversy” and “good cause” prongs have been satisfied. The burden of proof is heightened when the party to be examined has not voluntarily placed that issue in controversy. An order for examination must specify the manner, conditions, and scope of an examination. Failure to do so effectively gives the psychologist “carte blanche” to perform any type of testing and analysis. Such an open-ended order departs from the essential requirements of the law, resulting in a miscarriage of justice.

In this court, the trial court erred in ordering the Former Wife to undergo psychological counseling. Specifically, (1) the trial court made no findings that her mental health was in controversy; and (2) the language of the order was too broad because it did not identify the length of the examination, the type of testing, or limits of the testing. The trial court's order did not address either the “in controversy” or the “good cause” requirements of the Rules. The appeals court quashed the order.

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

June 14, 2016

Case:             McWilson v. McWilson
Court:            First District Court of Appeal.
Trial Judge: Gary L. Bergosh.
Attorneys:     Stephen A. Pitre.
Issues:           Child Support, Parenting, Equitable Distribution.

Holding: Visitation travel expenses should be allocated in the same guidelines ratio as governs allocation of the other child care expenses, unless the trial court makes findings explaining why a different allocation is needed to achieve an equitable result. In this case, the trial court erred as the gross income used on the child support guidelines worksheet did not match the figures on the parties’ most recent financial affidavits and it made no findings explaining its decision which departed from the normal process. The appeal court could not determine whether the award was made in accordance with Florida statutes, and reversed and remanded.

Case:             Lopez v. Lopez
Court:            Third District Court of Appeal.
Trial Judge: David C. Miller.
Attorneys:     Geoffrey B. Marks, G. Bart Billbrough, David M. Gersten, Joseph A. Sacher, Christopher A. Noel.
Issues: Divorce.

Holding: To prevail on a petition for a writ of certiorari, a party must demonstrate that the contested order constitutes (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case, (3) that cannot be corrected on post-judgment appeal. As a condition precedent to invoking a district court’s certiorari jurisdiction, the petitioning party must establish that it has suffered an irreparable harm that cannot be remedied on direct appeal. In this case the trial court did not err when it found no material injury which could not be corrected on post-judgment appeal and the parties’ respective claims to immediate possession remain subject to determination. The appeals court affirmed.

Case:             A.D.A. & M.J.L. v. D.M.F.
Court:            Fourth District Court of Appeal.
Trial Judge: Howard H. Harrison.
Attorneys:     Andrew A. Harris, J. Mark Maynor.
Issues: Paternity.

Holding: Under Florida statutes when the unmarried parents a child file a voluntary acknowledgement of paternity, such acknowledgement creates a rebuttable presumption of paternity. This is subject to the right of any signatory to rescind the acknowledgement within 60 days after it was signed or the date of an administrative or judicial proceeding relating to the child, whichever is earlier. Further, if the mother and the reputed father get married, any time after the child is born, the child is deemed and held to be the child of the husband and wife. However, the presumption of paternity cannot rest on false assertions by the parents. In this case, the trial court erred when it denied a motion for paternity testing filed by a man who sought to establish himself as the biological father of a child after the Mother married a different man when the Mother had presented false affidavits to create the presumption of paternity for her current husband when both knew the other man could have been the father of the child. There was no presumption and his rights were infringed by being prevented from seeking a paternity declaration. The appeals court reversed and remanded.

Case:             Powers v. Powers
Court:            Second District Court of Appeal.
Trial Judge: Keith Meyer.
Attorneys:     Jane H. Grossman, K. Dean Kantaras.
Issues:           Attorney’s Fees.

Holding: Florida statutes (2014), govern attorneys' fee and cost awards in post dissolution enforcement proceedings. The appropriate inquiry for entitlement to fees and costs is each spouse's need for suit money versus each spouse's respective ability to pay. The court must make findings of fact sufficient to permit appellate review of its decision to award or deny a party's request for attorneys' fees and costs under statute. In this case, the circuit court erred in its denial of the Former Wife's request for attorneys' fees and costs as it found no basis upon which to award either party fees or costs as requested. The appeals court reversed and remanded.

Case:             D.A.D. v. J.S.
Court:            Second District Court of Appeal.
Trial Judge: R. Thomas Corbin.
Attorneys:     Robert L. Donald, Joseph P. Hoffman.
Issues:           Paternity.

Holding: Once a foreign judgment is domesticated in Florida, it is to be treated as an original Florida decree. An order adjudicating issues not presented by the pleadings, notice to the parties, or litigated below denies fundamental due process. In this case, the circuit court erred when it improperly modified a domesticated paternity judgment in ways that were not pleaded in the modification petition. The appeals court reversed.

Case:             Levesque v. Levesque
Court:            Second District Court of Appeal.
Trial Judge: Amy M. Williams.
Attorneys:     Christin C. Brennan, Jane H. Grossman.
Issues:            Alimony.

Holding: In this case, the trial court abused its discretion in awarding durational instead of permanent periodic alimony when the trial court found that the Former Wife was disabled and the undisputed evidence established that she was unable to return to work. The appeals court reversed.

Case:             Durst v. Durst
Court:            Fifth District Court of Appeal.
Trial Judge: Mike Murphy.
Attorneys:     Melanie M. Demps.
Issues:            Alimony.

Holding: Failure to give notice of a hearing to the opposing party, absent a true emergency, deprives the opposing party of its right to procedural due process. In this case, the trial court erred when the Former Husband was not afforded due process. Specifically, despite the lack of a hearing, the trial court entered an order granting the Wife’s motion. The failure to afford the Husband an opportunity to present evidence and be heard deprived him of his right to procedural due process. The appeals court reversed.

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Florida Divorce and Family Law Update for Week Ending May 22, 2016

May 26, 2016

Case:             Watford v. Watford
Court:            Fourth District Court of Appeal.
Trial Judge: Krista Marx.
Attorneys:      J. Harley Toufanian, Joseph J. Mancini.
Issues:            Alimony, Equitable Distribution, Attorney’s Fees.

Holding: A final judgment awarding alimony must include findings of fact to support the award, based on the listed statutory factors. Net income is used to calculate alimony. In ordering attorney’s fees, a trial court shall make findings as to the parties’ respective ability to pay, the reasonableness of the hourly rate and the hours expended. In this case, the trial court erred as the final judgment on alimony did not include factual findings regarding the statutory factors and the trial court erroneously relied on the Former Husband’s gross income, not his net income, in calculating alimony. Nor was there evidence that the Former Husband’s alleged dissipation of assets resulted from intentional misconduct. Finally, while the trial court found the Former Wife had the need for attorney’s fees, it did not make any findings as to Former Husband’s ability to pay, or the reasonableness of the hourly rate and hours expended. The appeals court reversed.

Case:             Henry v. Henry
Court:            Fourth District Court of Appeal.
Trial Judge: Jeffrey Dana Gillen.
Attorneys:      Bruce S. Rosenwater, Anne M. Lynch. Eddie Stephens.
Issues:            Alimony, Equitable Distribution, Attorney’s Fees.

Holding: Alimony and child support awards must be based on the parties’ net income, properly calculated. In this case, the trial court erred in making awards of child support, alimony, retroactive child support and retroactive alimony based on miscalculated incomes of the parties. The trial court also erred in calculating retroactive child support using a 60/40 timesharing split (which applies to prospective child support despite) the evidence showing a 50/50 split during the retroactive period. Nor did the trial court make specific findings of the Former Wife’s need and the Former Husband’s ability to pay during the relevant period. The appeals court reversed.

Case:            Gonzalez v. Walker
Court:            Fourth District Court of Appeal.
Trial Judge: Amy L. Smith.
Attorneys:      Leonel R. Plasencia, Curt Sanchez, Robin Bresky, Jonathan Mann.
Issues:            Paternity, Timesharing, Child Support.

Holding: A party is entitled to adequate notice of proceedings and the claims faced. Competent evidence is required to show that the parties would not be able to work together effectively for their child’s best interests. In this case, the trial court erred in granting ultimate decision-making authority to the Former Husband when: (a) the pleadings did not provide the Former Wife adequate notice of what was being claimed; and (b) there was no evidence of a continuing pattern of hostility showing that the parties would not be able to work together for their child’s best interests.

Case:             N.H. v. D.C.F.
Court:            Second District Court of Appeal.
Trial Judge: Lee A. Schreiber.
Attorneys:      Michael Mummert, Laura J. Lee, Meredith K. Hall.
Issues:            Certiorari.

Holding:         Under Florida Statutes (2015), a trial court may shelter a child if probable cause exists to believe that the child has been abused, neglected, abandoned, or is in imminent danger of illness or injury as a result of abuse, neglect, or abandonment. The connection between the unexplained abuse of a child and the substantial risk of significant harm to a sibling can warrant the removal of both children, even though one child has yet to be abused. In this case, the trial court erred when it found probable cause to shelter only one of four minor children (siblings) based on the parents' alleged physical abuse, concluding that the other siblings were not at risk of potential harm. Specifically, the trial court departed from the essential requirements of law when it failed to shelter similarly situated siblings and required actual evidence of actual physical harm. The appeals court reversed.

Case:            Lucas v. Lucas
Court:            Fifth District Court of Appeal.
Trial Judge: David B. Beck.
Attorneys:      Corrine A. Bylund, Armistead W. Ellis, Jr..
Issues:            Equitable Distribution, Alimony.

Holding: In determining eligibility and liability for alimony, the trial court shall first make a specific factual determination as to the respective parties’ need and ability to pay. In this case, the trial court erred in failing to make specific factual findings as to the Former Wife’s claim. It further erred by incorrectly valuing the Former Wife’s IRA account (the distribution should reflect the actual value of the account) and distributed the parties’ credit-card debts as marital debt without making a specific finding as to the value. The appeals court reversed and remanded.

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Florida Divorce and Family Law Update for Week Ending May 15, 2016

May 16, 2016

Case:             Bellant v. Bellant
Court:            Second District Court of Appeal.
Trial Judge: Edward Nicholas.
Attorneys:     Susan J. Silverman, Melton H. Little, Peter J. Mackey, Drew F. Chesanek.
Issues:            Attorney’s Fees.

Holding: In this case the trial court erred in awarding attorney’s fees to the Former Husband based, in part, on its finding of bad faith conduct by the Former Wife and her legal counsel absent it explaining what constituted said bad faith. The appeals court remanded with directions.

Case:            B.B.S. et al v. Rodriguez-Murguia
Court:            Fourth District Court of Appeal.
Trial Judge: Barbara W. Bronis.
Attorneys:      Charles E. Jarrell.
Issues:            Maternity.

Holding: Florida Statutes (2014), provide that circuit and county courts have jurisdiction to declare rights, status, and other equitable or legal relations. No action or procedure is open to objection on the ground that a declaratory judgment is demanded. The United States Supreme Court and the Florida Supreme Court have recognized the fundamental rights of parents. In this case, the trial court erred in dismissing the Children’s cause of action to determine maternity when it should have allowed them to do so by way of a declaratory action under Florida Statutes. The Mother signed their birth certificates using a false name because she was not in the country legally. When she tried to amend the birth certificates to correctly identify herself as their mother, each state where the Children were born would not authorize the change without a court order. The Children brought the action to establish maternity in conjunction with a request for child support and a parenting plan. The trial court was required to adjudicate to determination of existing rights or duties. The appeals court reversed and remanded.

Case:            Steinman v. Steinman
Court:            Fourth District Court of Appeal.
Trial Judge: Howard K. Coates, Jr..
Attorneys:     Amy D. Shield, Roger Levine, Charles D. Jamieson.
Issues:           Contempt.

Holding: A trial court cannot preclude the custodial parent of one religious faith from actively influencing the training of the child inconsistently with the different religious faith of the other parent. Nor can it require the custodial parent to raise the child in the other parent’s faith and cooperate with the other parent in effecting the result. In this case, the trial court erred in holding the Mother in contempt for unilaterally changing the religious care of the children when, in fact, the Father’s principal concern was with afterschool care and the Father led no evidence that the children were harmed by exposure to the Mother’s religious beliefs or practices. The appeals court reversed.

Case:             D.H. v. T.N.L. and Guardian ad litem
Court:            Fourth District Court of Appeal.
Trial Judge: Gary L. Sweet.
Attorneys:      Lori D. Shelby, Linda L. Weiksnar.
Issues:            Contempt.

Holding: In order to find an individual in contempt, the trial court must find that the contemnor had the ability to comply with the previous court order. Florida Rules of Juvenile Procedure codifies this and sets out detailed procedures that must be followed before a person can be found in civil contempt. An order finding a person in contempt must contain specific findings, including a finding that the alleged contemnor had the ability to comply with a prior court order and willfully failed to do so. In this case, the trial court erred in finding the Father in contempt without finding that he had the present ability to pay the amounts ordered. While this issue was not preserved, the court departed from the essential requirements of law and committed fundamental error. The appeals court reversed and remanded.

Case:             Moore v. Yahr
Court:            Fourth District Court of Appeal.
Trial Judge: Timothy L. Bailey.
Attorneys:      Gerald W. Adams, Catherine L. Roselli.
Issues:            Paternity.

Holding: When restricting or preventing timesharing, a trial court must set forth any specific requirements or standards to remove or alleviate the restrictions. Failure to do so is error. The court must give the parent the key to reconnecting with his or her children. The costs of supervision should be considered as part of the child support calculations. In this case, the trial court erred as it failed to set forth specific steps by which the Father could establish unsupervised timesharing and improperly ordered him responsible for the costs of supervision. The appeals court reversed.

Case:              Songur v. Songur
Court:            Fifth District Court of Appeal.
Trial Judge: Mike Murphy.
Attorneys:     Christie L. Mitchell.
Issues:            Parenting, Time-sharing, Contempt.

Holding: A trial court must make specific findings as to educational decisions and parents’ ultimate responsibilities. Imputations of income must be made on evidence and explanation for related findings. In this case, the trial court erroneously granted ultimate decision-making authority over a child’s education to the Former Husband absent a finding that shared parental responsibility would be detrimental to the child or that ultimate responsibility over the child’s education was in the child’s best interest. The trial court also erred in imputing income to both parents without any evidentiary basis and without explanation for these findings. The appeals court reversed and remanded

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Florida Divorce and Family Law Update for Week Ending May 1, 2016

May 3, 2016

Case:              Ketcher v. Ketcher
Court:            First District Court of Appeal.
Trial Judge: Linda F. McCallum.
Attorneys:     Brian P. North, Summer N. Boyd.
Issues:            Procedure.

Holding: An alimony award must be supported by sufficient findings to demonstrate that the payee spouse has a need for the amount of alimony awarded and the payer spouse has the ability to pay that amount. A trial court has the authority to require a payor spouse to obtain and maintain a life insurance policy naming the payee spouse as the beneficiary in order to secure his or her obligation to pay a marital debt. The amount of the life insurance policy must be related to the extent of the obligation being secured. In this case, the trial court erred regarding:

1. the adequacy of the alimony award because the final judgment contained insufficient findings to permit meaningful review of the award; and

2. the requirement that the Former Husband obtain life insurance to secure his obligation as part of the equitable distribution scheme because the amount of life insurance ordered exceeded the amount of his liability, without explanation. The appeals court reversed.

Case:              Minda v. Minda
Court:            Second District Court of Appeal.
Trial Judge: Walt D. Logan, Thomas Ramsberger.
Attorneys:     Jonathan Jonasz, Cristiana Esteves, Sarah M. Chaves.
Issues:            Alimony.

Holding: A motion for relief from judgment should not be summarily dismissed without an evidentiary hearing unless the allegations and affidavits fail to allege colorable entitlement to relief. In this case, the trial court erred in dismissing the Former Wife's motion to vacate a default judgment as it was facially sufficient and alleged a colorable entitlement to relief. The appeals court reverse and remanded for a formal evidentiary hearing on the motion.

Case:              D.M.J. v. A.T.J.
Court:            Second District Court of Appeal.
Trial Judge: Martha J. Cook.
Attorneys:
Issues:            Parenting, Child Support, Time-sharing.

Holding: A time-sharing schedule may not be modified without a substantial, material, and unanticipated change in circumstances and a finding that the modification is in the best interests of the child. The petitioning party has the burden of proof. Relocation is not a substantial change if the move is not a significant distance away from the child's current location. A child’s best interests must be considered by the court. A 45-mile move has been found to not constitute a substantial change warranting modification.

In this case, the trial court erred as it failed to consider the statutory best interests of the child in entering the orders on appeal. It did not find that a substantial change, regarding the Father’s relocation, occurred. Nor did it indicate that its findings and modification of the time-sharing plan were based upon the Father's move. The appeals court reversed and remanded for an evidentiary hearing to consider the statutory best interests of the child.

Case:              Dillion v. Dept. of Revenue (Child Support)
Court:            Fourth District Court of Appeal.
Trial Judge:
Attorneys:      Pamela Jo Bondi, Toni C. Bernstein.
Issues:            Child Support.

Holding: A noncustodial parent’s child support obligation is calculated based on the financial affidavits submitted by the parties along with any other information available to the Department. Where a child spends a substantial amount of time with the noncustodial parent under a timesharing arrangement, a reduction in that parent’s child support obligation is mandated. If an agency enters an order on undisputed evidence, the order must be upheld by this court if it is supported by competent, substantial evidence. In this case, the Department erred when it failed to conduct an evidentiary hearing because the financial affidavits submitted by the parties presented disputed facts which affected the calculation of the Father’s support obligation. The appeals court vacated and remanded.

Case:              Turk v. Turk
Court:            Fourth District Court of Appeal.
Trial Judge: Charles E. Burton.
Attorneys:     Craig A. Boudreau, Gary D. Weiner, Scott M. Weiss.
Issues:            Contempt, Time-sharing.

Holding: A person cannot be held in contempt for failure to comply with something that a judicial order does not say. In this case, the trial court erred in granting the Mother’s motion for contempt alleging that the Father knowingly and intentionally withheld the children from her for one day in violation of a specific provision of their time-sharing agreement. The noted provision, however, on reasonable interpretation, did not require him to permit visitation on the date he allegedly violated the agreement. The appeals court reversed.

Case:              Mills v. Mills
Court:            Fifth District Court of Appeal.
Trial Judge: Morgan Laur Reinman.
Attorneys:     Amy D. Shield, Roger Levine, Philip Fougerousse.
Issues:            Equitable Distribution.

Holding: Liabilities incurred by forgery or unauthorized signature of the other spouse's name are nonmarital liabilities and are the sole burden of the spouse committing the fraud unless the liability was subsequently ratified by the other spouse. In this case, the trial court erred in concluding that the Former Husband made numerous investments on behalf of the parties which were profitable in the past despite his admission that he forged her signature on a loan (and there was no evidence to suggest she ratified the loan). The loan was a nonmarital liability of Former Husband. However, the loan was paid off using marital funds from his retirement accounts. Therefore, the trial court should have classified a portion of the loss as the nonmarital liability of Former Husband. The appeals court reversed and remanded.

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