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 September 25, 2016

September 28, 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:             Flynn v. McCraney & McCraney
Court:            First District Court of Appeal.
Trial Judge: Jan Shackelford.
Attorneys:     Autumn O. Beck.
Issues:           Paternity, Time-sharing.

Holding: A child born to an intact marriage cannot be the subject of a paternity proceeding brought by a biological father. It is a fundamental error for a trial court to grant relief pursuant to a nonexistent cause of action. In this case, the trial court did not err in dismissing Mr. Flynn’s petition the minor child was born to the intact marriage of Mr. and Mrs. McCraney. The appeals court affirmed.

Case:             Browne v. Blanton-Browne
Court:            First District Court of Appeal.
Trial Judge:
Attorneys:     Shelley L. Thibodeau.
Issues:           Certiorari, Child Support, Attorney’s Fees.

Holding: Under Florida Family Law Rules of Procedure, a notice of hearing on a motion for civil contempt related to family support matters must specify the time and place of the hearing and contain specific language. If an alleged contemnor fails to appear for the hearing after proper notice, the hearing is to proceed simply to allow the movant to make a prima facie case of contempt in accordance with the Rules. If they meet this burden, the court is required to set a reasonable purge amount based on the individual circumstances of the parties. The court may issue a writ of bodily attachment to have the alleged contemnor brought in to answer the motion. After the court hears from both parties, it may grant or deny the motion for contempt. If the order grants the motion, it must find that the contemnor had the present ability to pay support and willfully failed to do so. The court must make a finding that the contemnor has the present ability to comply with the purge provision and state the factual basis for that finding.

In this case, the trial court erred when it failed to follow Florida Family Law Rules of Procedure when it found the Former Husband in contempt for failure to pay his child support arrearage and the attorneys’ fees. The trial court failed to warn the Former Husband that his failure to appear at the initial hearing for contempt could result in a writ authorizing his arrest. The appeals court granted the petition and quashed the order of contempt and related writ of bodily attachment.

Case:            Z.R. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge: Cindy S. Lederman.
Attorneys:     Albert W. Guffanti, Rosemarie Farrell, Laura J. Lee (Sanford).
Issues:           Termination.

Holding: A trial court record must reflect whether a party’s parental rights have been terminated. Under Florida Statutes, the termination of the rights of one parent must generally be accompanied by the termination of the rights of the other. In this case, the trial court erred because, while the record supportedtermination of the Mother’s rights, the record did not reflect whether the Fathers’ parental rights were also terminated. Nor did the trial court’s order discuss the factors under Florida Statutes, which limit the court’s power to terminate the rights of one parent without terminating the rights of the other. Given this, and the additional fact that the children for adoption, the appeals court affirmed in part, reversed in part and remanded.

Case:            Koscher v. Koscher
Court:            Fourth District Court of Appeal.
Trial Judge: Tim Bailey.
Attorneys:     Terrence P. O’Connor, Michelle Ralat Brinner.
Issues:           Imputation, Alimony, Attorney’s Fees.

Holding: Imputation

A trial court’s can impute income to a Former Spouse it is shown he or she is earning less than he could, based on a showing that he or she could earn more if they exercised best efforts, based on competent substantial evidence. The trial court engages in a two-step process. First, the court must conclude that the termination of income was voluntary. If so, the court must determine whether the unemployment resulted from the Former Spouse’s pursuit of his or her own interests or through inadequate efforts to find employment at a level of pay equal to or better than that formerly received. A Former Spouse bears the obligation to be diligent in finding replacement income even if he or she is initially involuntarily unemployed; is physically and mentally capable and otherwise employable. severance for over a year). Then, the Former Spouse claiming income should be imputed to the unemployed or underemployed spouse bears the burden of showing both employability and that jobs are available. The trial court must set forth factual findings as to the probable and potential earnings level, source of imputed and actual income, and adjustments to income. The trial court may only impute a level of income supported by the evidence of employment potential and probable earnings based on history, qualifications, and prevailing wages.

In this case the trial court erred in its analysis of the issue of imputing income to the Former Husband. The evidence showed he was involuntarily terminated from his last job, his continued unemployment was voluntary, and he did not make any diligent efforts to seek comparable employment. The trial court should have performed the necessary steps to calculate an actual value for the imputed income. The appeals court reversed and remanded for the trial court to take additional evidence to determine the amount of income it should impute to the Former Husband.

Alimony

This Court reviews an alimony award with the abuse of discretion standard. Where the record does not contain substantial, competent evidence to support the trial court’s findings regarding the amount of alimony awarded, the appellate court will reverse. When one party is entitled to permanent periodic alimony but the other spouse has no current ability to pay, the trial court should award a nominal sum of permanent periodic alimony, which will give the court jurisdiction to reconsider the award should the parties’ financial circumstances change. The purpose of imputed income is to determine the amount that a spouse is able to earn, above and beyond what the spouse actually earns. Nominal alimony is therefore inappropriate in a situation where the paying spouse has the ability to pay more if he/she was to earn the amount the court has determined could be earned through diligent efforts. The appeals court reversed and remanded. Upon remand, the trial court is to impute income to the Former Husband and revisit the amount of permanent periodic alimony to be awarded to the Former Wife, commencing with the date of initial dissolution of marriage.

Attorney’s Fees

The court may, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees . . . to the other party of maintaining or defending any proceeding under this chapter. A trial court may also consider other factors, including the parties’ behaviors and earning potential. In deciding whether an award of attorney’s fees is justified, a trial court may impute income to a voluntarily unemployed or voluntarily underemployed party. The trial court denied the Former Wife’s request for attorneys’ fees because it found the parties to be equal based on their net worth and income. However, there was no evidence of her having any income and the Former Husband conceded she was unemployable for medical reasons. On the other hand, the evidence presented showed that the husband was an experienced business executive with significant earning potential. Therefore, the parties were not in similar circumstances. The appeals court reversed and remanded.

About DivorceCourtAppeals.com and Bruce Law Firm, P.A.

The Bruce Law Firm, P.A. is limited to the resolution of marital and family la w matters in Florida’s trial and appellate courts. The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts. The firm paysreferral fees in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.

Florida Divorce and Family Update for Week Ending September 11, 2016

September 14, 2016

Case:              Cherry v. Viker
Court:            First District Court of Appeal.
Trial Judge: Robert Wheeler.
Attorneys:     M. Stephen Stanfield, Emilian “Ian” Bucataru.
Issues:           Attorney’s Fees.

Holding: An award of attorney’s fees pursuant to Florida Statutes must be based on the need of the party seeking the fees and the ability of the other party to pay the fees, based on competent substantial evidence. Further, an award of temporary fees must be properly based on evidence to support the award because a temporary award does not create vested rights. In this case, the trial court erred as its order for temporary attorney’s fees to the Former Wife was not supported by competent, substantial evidence. Specifically, the trial court’s findings regarding the parties’ financial resources were not supported by evidence (only argument of counsel was presented at the hearing below). The trial court could not have properly determined the need of the party seeking fees or the ability of the other party to pay. The appeals court reversed.

Case:              Bork v. Bork
Court:            First District Court of Appeal.
Trial Judge: David Rimmer.
Attorneys:     Ross A. Keene, Brian P. North.
Issues:           Alimony.

Holding: In making an alimony award, a trial court’s award must be based on proper findings concerning the respective incomes of the parties, which must be based on proper record evidence. In this case, the trial court erred as it calculated the alimony award based on the Former Husband’s net income after it had been reduced by the amount of a prior, temporary alimony award to the Former Wife. The record therefore reflected a clear error in the financial information utilized by the trial court in setting the permanent alimony amount. Since the temporary alimony award was in place only until the final hearing, the Former Husband’s net monthly income should have been adjusted and increased by the temporary award amount before calculating the Former Wife’s alimony amount. The trial court’s finding concerning the former husband’s net monthly income was not supported by the evidence. The appeals court reversed and remanded.

Case:              Trainor v. Trainor
Court:            Fourth District Court of Appeal.
Trial Judge: Scott Suskauer.
Attorneys:     Christine Deis, Jenna D. Wickenhauser, Kendrick Almaguer, Yvette B. Reyes.
Issues:           Alimony, Attorney’s Fees.

Holding: The standard of review for an award of attorneys’ fees is abuse of discretion. While a trial court has broad discretion in making an award of temporary attorney’s fees, the trial court must make sufficient factual findings as to the reasonableness of the time expended and the hourly rates. In this case, the trial court erred when it failed to address the reasonableness of the Former Wife’s attorneys’ fees, regarding the number of hours expended and the hourly rate. The appeals court reversed and remanded.

Case:              Brezault v. Brezault
Court:            Fourth District Court of Appeal.
Trial Judge: Dennis D. Bailey.
Attorneys:     May L. Cain.
Issues:           Alimony.

Holding: Florida Statutes provide a specific, non-exhaustive list of factors for the court to consider in making such awards. While the nature and amount of an alimony award is in the discretion of the trial court, it must be supported by competent substantial evidence. Findings must be made regarding the statutory factors, based on the evidence. Absent special circumstances which do not appear in the judgment, an alimony award should not exceed a spouse’s need. In this case, the trial court erred in the amount of alimony awarded to the Former Husband as the decision was not supported by the evidence. Specifically, the recipient spouse’s need was not supported by competent substantial evidence. Further, the trial court failed to make the required findings to support the award. The appeals court reversed and remanded.

Case:              Street v. Street
Court:            First District Court of Appeal.
Trial Judge: Michael Flowers.
Attorneys:     David A. Carroll, David J. Oberliesen, Tonya Holman.
Issues:           Timesharing, Procedure.

Holding: A scrivener’s error on the final order can be grounds for reversal. In this case, the trial court erred as the final order erroneously reflected the timesharing split. The appeals court reversed the portions of the final order reflecting the (scrivener’s) error and remanded for recalculation of the Former Husband’s child support payment to reflect the appropriate timesharing split.

Case:              Liguori, Jr. v. Liguori
Court:            Second District Court of Appeal.
Trial Judge: John S. Carlin.
Attorneys:     Kathryn F. Pugh, Bernard T. King.
Issues:           Child Support, Alimony, Parenting.

Holding: Child Support

The court has discretion to award child support retroactive to the date when the parents no longer lived in the same household with the child. The standard of review for a trial court's imputation of income is whether competent substantial evidence supports it. A final judgment must allocate responsibility for the child/children's uncovered medical and dental costs if applicable. The court may adjust a child support award when the children spend a significant amount of time with the noncustodial parent.

In this case, the trial court erred when it recalculated the award of temporary child support to the extent it calculated the support from the date of filing the petition rather than the date the Former Husband moved out of the marital residence. Further, while the record supported imputation of income, the final judgment failed to allocate responsibility for the children's uncovered medical and dental costs and did not provide for the children's health and dental insurance. Finally, the trial court's calculation regarding the number of overnights allocated to each parent was incorrect. The appeals court reversed and remanded.

Timesharing

A trial court's timesharing plan must be affirmed if it is supported by competent substantial evidence. When forming a parenting plan, the trial court must consider the best interest of the child. In this case, the trial court did not err as the Former Husband did not ask the trial court to continue the plan that had been in place. Instead, he offered a timesharing proposal which the trial court declined but, instead, gave him a temporary plan with more after school time. There was no abuse of discretion in the trial court's decision not to adopt either parent’s proposal and set out a different schedule because the best interests of the children were considered. The appeals court affirmed.

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

Holding: An appellate court will affirm an order terminating parental rights if, upon the pleadings and evidence before the trial court, there was a theory or principle of law which would support the trial court's judgment in favor of termination. Abandonment under Florida Statutes requires strict findings of fact that there was, among other things, no contact between Parent and Child for a period of time. In this case, the trial court did not err in terminating parental rights because it was substantiated by the pleadings and evidence. However, the trial court erred in finding abandonment, because the record reflected the Mother regularly visited with the child, provided toys and clothing for the child, and the child appeared happy to see her during the scheduled visits. The appeals court affirmed as to termination and reversed as to the finding of abandonment.

About DivorceCourtAppeals.com and The Bruce Law Firm, P.A.

The Bruce Law Firm, P.A. is limited to the resolution of marital and family la w matters in Florida’s trial and appellate courts. The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts. The firm pays in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.

Florida Divorce and Family Update for Week Ending September 4, 2016

September 7, 2016

Case:             Sweeney v. Sweeney
Court:            Second District Court of Appeal.
Trial Judge: G. Keith Cary.
Attorneys:     Luis E. Insignares, Rana Holz.
Issues:           Equitable Distribution.

Holding: In this case, the trial court erred in awarding an excessive credit to the Former Wife for tax payments she made on real estate commissions that were divided in equitable distribution. Specifically, the trial court erred in crediting her for taxes she paid on the marital commissions when it had already allowed her to deduct a cash amount for the same marital taxes. The appeals court reversed and remanded.

Case:             D.C.F. v. M.N. and O.C.S.
Court:            Third District Court of Appeal.
Trial Judge: Martin Zilber.
Attorneys:     Karla Perkins, Eugene F. Zenobi, Kevin Coyle Colbert.
Issues:           Dependency.

Holding: Determinations regarding the transfer of a case to another jurisdiction based on the “inconvenient forum” provisions of the UCCJEA are a matter of the trial court’s discretion. Once the DCF commenced the dependency proceedings in the children’s home state, the trial court had continuing jurisdiction under the statute. That jurisdiction carries with it the duty to ensure that the best interests of the children are advanced; a duty that exists during dependency proceedings, and continues through adoption proceedings. This duty exists to carry out the legislature’s goal that all dependency proceedings are to seek to achieve permanency for the children. A Florida trial court does have the ability to transfer a case when it determines that another forum is more convenient. In this case, the trial court erred in ordering termination of the DCF’s supervision over two minor children and closing the file. Specifically, the record established that the trial court acquired, and had continuing, jurisdiction over the case and children because Florida was the children’s home state under the UCCJEA. (The older child had lived in Florida for 6 consecutive months, and the infant child been born there). As the DCF commenced proceedings in Florida, the home state, the trial court had continuing jurisdiction under the statute. Its dismissal without the children having reached permanency was improper. While the trial court concluded that the children were in Puerto Rico and the parents could not be located in Florida a “transfer” of the case to Puerto Rico was warranted. The trial court was required to comply with certain statutory factors and make the necessary statutory findings, which it failed to do. The appeals court reversed and remanded.

Case:             Medina v. Haddad
Court:            Third District Court of Appeal.
Trial Judge: Marcia B. Caballero.
Attorneys:     Theodore H. Uno, Lauren M. Alperstein, Stephanie Matalo.
Issues:           Timesharing.

Holding: In this case, the trial court erred when it failed to comply with Florida Rules of Civil Procedure and Family Law Rules when ordering a child undergo a compulsory psychological evaluation. Specifically, although the trial court attempted to characterize what was effectively a psychological evaluation as a “therapeutic consultation,” the Mother was required to comply with Florida Rules of Civil Procedure and Family Law Rules and prove that the child’s mental condition was “in controversy” in the litigation; and “good cause” existed for the compulsory psychological evaluation. As the Mother was not able to establish either, the appeals court quashed the trial court’s order.

Case:             Schufelt v. Schufelt
Court:            Fifth District Court of Appeal.
Trial Judge: Edward J. Richardson.
Attorneys:     Elizabeth Siano Harris.
Issues:           Equitable Distribution.

Holding: Generally, when a party submits a proposed final judgment, it is error for a trial court to enter the judgment without providing the other party an opportunity to review the proposed judgment and make objections. Such issues raise questions of fairness and are subject to appellate review. An appellant bears the onus of demonstrating reversible error. An alleged defect must be brought to the trial court's attention by the timely filing of a motion for rehearing which raises issue or arguments regarding the alleged unequal distribution. In this case, the Appellant (Former Husband) was required to demonstrate reversible error but failed as there was no sufficient record of the hearing on point. As such, he could not show that the trial court's oral findings at the hearing was not supported by competent substantial evidence. Further, while the trial court's findings of fact in the final judgment were inadequate to support the unequal distribution of this marital asset, the Former Husband’s motion was not filed on time. Even if it were, he raised no issue or argument in the motion regarding the trial court's unequal distribution of the marital home. He failed to preserve the key issue for appellate review. The appeals court affirmed.

About DivorceCourtAppeals.com and Bruce Law Firm, P.A.

The Bruce Law Firm, P.A. is limited to the resolution of marital and family la w matters in Florida’s trial and appellate courts. The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts. The firm pays referral fees in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.

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

August 9, 2016

Case:             J.P. v. D.P, D.C.F. & Guardian ad Litem Program
Court:            First District Court of Appeal.
Trial Judge: Karen A. Gievers.
Attorneys:     M. Linville Atkins, Mike Donovan, Kelley Schaeffer.
Issues:            Parenting, Custody.

Holding: A trial court has broad discretion in ordering timesharing, and its decision should be affirmed if it is supported by competent, substantial evidence and is not an abuse of discretion. The proper review of a petition for relocation entails a best-interests determination at the time of the final hearing. In this case, the trial court erred in rendering a final judgment establishing a parenting plan that would require the six-year-old minor child to move over 300 miles away to live with the Mother when the child begins middle school, when the prospective change in residence was unsupported by the record and contrary to the court’s finding that living with the Father was in the child’s best interests. A prospective-based analysis that purports to determine that a change in residence will be in the child’s best interests approximately 5 years in the future is impermissible. The court further erred in imposing a change in residence when it was not requested by either parent nor addressed at the hearing. This violated the Father’s due process rights. The appeals court reversed.

Case:             Adkins v. Sotolongo
Court:            Third District Court of Appeal.
Trial Judge: Pedro P. Echarte, Jr..
Attorneys:
Issues:            Guardian at Litem Fees.

Holding: In this case, the trial court erred in granting the motion of the Guardian ad Litem (GAL) to compel payment of her fees in the absence of an order specifying the parties' income, the basis for a modified support amount, or any justification for a departure from the guidelines. Specifically, the trial court ordered the Father to divert a portion of his child support payment directly to the GAL for payment of her fees and pay the remainder to the Mother. It also amended its order regarding the Father’s payments to the central depository. The parties failed to arrange for a recording of hearings on the GAL’s motion, so appellate review was limited to errors on the face of the order. The appeals court reversed and remanded.

Case:             Jackson v. Jackson
Court:            Third District Court of Appeal.
Trial Judge: Antonio Marin.
Attorneys:     Ilene F. Tuckfield, Hegel Laurent.
Issues:            Child Support, Parenting, Alimony, Equitable Distribution, Attorney’s Fees.

Holding: This was a motion for clarification by the Former Husband regarding an appellate opinion dated June 22, 2016. The appeals court granted the motion, withdrew the opinion and substituted the following: where the appellant, through no fault of his own, has been unable to provide this court with a transcript of the final hearing below, and the parties and the trial court have been unable to reconstruct the record, we are compelled to summarily reverse for a new trial.

Case:             Dickson v. Dickson
Court:            Fourth District Court of Appeal.
Trial Judge: Laurie E. Buchanan.
Attorneys:     Leanne L. Ohle.
Issues:           Child Support, Alimony.

Holding:        Alimony

An award of alimony will not be reversed absent an abuse of discretion. A trial court abuses its discretion when it fails to award retroactive support from the date of the filing of a petition for dissolution of marriage where there is a need for child support and an ability to pay. Florida Statutes (2013), governs alimony and provides: (1) for bridge-the-gap, rehabilitative, durational, or permanent alimony (or any combination); (2) periodic payments, lump sum or both; and (3) will consider factors including the duration of the marriage, the age of the parties, their financial resources and earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment. For long-term marriages (17 or more years), there is a rebuttable presumption in favor of permanent alimony. A spouse’s age is not a valid basis to deny permanent alimony absent evidence that the spouse’s youth would allow her or him to earn income sufficient to support a life-style consistent with that enjoyed during the marriage.

In this case, the trial court erred in awarding bridge-the-gap instead of permanent alimony to a Former Wife, aged 42, after a 19-year marriage, who was furthering her education and had no source of income. Although the amended final judgment provides that the trial court considered the statutory factors governing the award of alimony, it was apparent from the hearing transcript that the trial judge did not have the relevant information before it to consider all statutory factors. Additionally, the court’s findings were insufficient to overcome the presumption in favor of permanent alimony. Further, the trial court’s statements during the hearing indicated that the court misapplied the law regarding the Former Wife’s age. Further, the trial court erred in finding that bridge-the-gap alimony was appropriate when bridge-the-gap alimony serves to assist a spouse already capable of self-support during the transition from being married to being single.

Child Support

Under Florida Statutes (2013), in an initial determination of child support, the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months preceding the filing of the petition, regardless of whether that date precedes the filing of the petition. Factors that the court must consider in determining retroactive child support, include the need and the ability to pay of the respective parents and all actual payments made by a parent to the other parent or the child or third parties for the benefit of the child throughout the proposed retroactive period. In this case, the trial court erred in not considering an award of retroactive child support.

The appeals court reversed and remanded.

Case:             Jordan v. Jordan
Court:            Fourth District Court of Appeal.
Trial Judge: Alfred J. Horowitz.
Attorneys:     Nancy A. Hass.
Issues:           Equitable Distribution, Alimony, Attorney’s Fees.

Holding: An appeals court reviews final judgments of dissolution for an abuse of discretion. This is a review of a remanded decision.

Equitable Distribution

Under Florida Statutes, the distribution of marital assets and liabilities shall include specific written findings of fact regarding the identification of the marital liabilities and designation of which spouse shall be responsible for each liability. In this case, the trial court failed to include lease turn-in fees on the Former Wife’s car which the Former Husband bore. The appeals court reversed and remanded on this issue.

Alimony

Florida Statutes provide that, in awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties. In this case, the trial court ordered permanent alimony and failed to make the requisite finding that no other form of alimony would be fair and reasonable. The appeals court reversed and remanded for this finding.

Attorney’s Fees

In making an award of attorney’s fees, among other things, the trial court must consider the number of hours claimed for such fees. In this case, the trial court erred in awarding attorney’s fees for the services of the Former Wife’s two prior attorneys in the absence of her evidence in support of the reasonable number of hours. Further, the trial court made no findings on reasonable number of hours or reasonable hourly rate. The appeals court reversed the award of fees.

Case:             Pansky v. Pansky
Court:            Fourth District Court of Appeal.
Trial Judge: Timothy L. Bailey.
Attorneys:     Troy William Klein, Jordan B. Abramowitz.
Issues:            Equitable Distribution.

Holding: There must be evidence of the spending spouse’s intentional dissipation or destruction of the asset, and the trial court must make a specific finding that the dissipation resulted from intentional misconduct. In this case, the trial court erred in failing to make a specific finding of misconduct necessary to support equitable distribution to the Former Wife of funds the Former Husband spent pending these proceedings. The appeals court reversed and remanded.

Case:             Fahey v. Fahey
Court:            First District Court of Appeal.
Trial Judge: David Rimmer.
Attorneys:
Issues:           Paternity, Custody.

Holding: Under Florida law, parental rights may only be terminated through adoption or statutory procedure. A child’s legitimacy will not be affected by a court determination of paternity or subsequent support orders. In this case, a Georgia court confirmed the parties agreement that, based on genetic test results showing that Appellant was not the biological father, he would have no parental rights or responsibilities regarding the minor child. While it may have been an error under Florida law for a Georgia court to so conclude, its judgment is entitled to full faith and credit, because the Georgia Court of Appeals found that the trial court did not exceed its subject-matter jurisdiction under Georgia law. Further, the Appellant attempted to intervene in the Georgia proceedings, and moved to dismiss for lack of subject-matter jurisdiction. While the Appellant’s jurisdictional argument failed, it was raised and litigated in the Georgia proceeding. Res judicata precludes Appellant from using those grounds in a Florida court. The appeals court affirmed.

Case:             Pucci v. Johnson
Court:            First District Court of Appeal.
Trial Judge: Elizabeth Senterfitt.
Attorneys:     Caleb D. Rowland, William M. Blume, Beth M. Terry.
Issues:           Equitable Distribution.

Holding: Florida Statutes require the court to value and distribute all marital assets. In this case, the trial court erred by distributing only the marital assets included in the parties’ settlement agreement (which was subsequently incorporated into the final judgment). The appeals court reversed and remanded.

Case:             Richardson v. Knight
Court:            Fourth District Court of Appeal.
Trial Judge: Dennis D. Bailey.
Attorneys:     Mason A. Pertnoy.
Issues:           Equitable Distribution.

Holding: Generally, a settlement agreement, including a MSA, announced in open court is enforceable. However, for an oral MSA announced in open court to be valid and enforceable, the MSA must meet the statutory requirements on point and the trial judge must obtain clear and unequivocal assent to the MSA from each party on the record, and must also confirm that each party has discussed the MSA with their attorney and fully understands the terms. In this case, the trial court erred in imposing the equitable distribution scheme under an oral MSA in the absence of the record showing it relied on competent substantial evidence and failed to conform to statute (including those the court is required to consider when determining the equitable distribution of assets and liabilities in a dissolution of marriage action, and whether the equitable distribution should be equal or unequal). The appeals court reversed and remanded.

Case:             Buckalew v. Buckalew
Court:            Fourth District Court of Appeal.
Trial Judge: Renee Goldenberg.
Attorneys:     Michael A. Hymowitz, Barry S. Franklin.
Issues:            Equitable Distribution.

Holding: Distribution of marital assets and liabilities must be supported by factual findings in the judgment or order based on competent substantial evidence. In this case, the trial court erred in an equitable distribution award when it failed to make required findings of fact in the final judgment. Specifically, it adopted the magistrate’s written findings of fact, which failed to identify the marital or non-marital status of each asset and liability, and failed to ascribe a value for those assets and liabilities as required by statute. The appeals court reversed and remanded.

Case:             Wilkinson v. Wilkinson
Court:            Fifth District Court of Appeal.
Trial Judge: Jessica J. Recksiedler.
Attorneys:     Christie L. Mitchell.
Issues:           Equitable Distribution.

Holding: Despite the trial court’s wide discretion in dissolution matters, an appeals court must correct mathematical errors. In this case, the record revealed the trial court erred when it adopted verbatim the Former Wife’s proposed final order without adjudicating matters itself. The oral pronouncement also frequently referenced differing amounts for the value of the same item or category of property without explanation as to how or why the trial court modified the figures. There were also mathematical errors. The appeals court reversed and remanded with direction for the trial court to ensure that the final judgment is consistent with the evidence presented.

About DivorceCourtAppeals.com and Bruce Law Firm, P.A.

The Bruce Law Firm, P.A. is limited to the resolution of marital and family la w matters in Florida’s trial and appellate courts. The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts. The firm pays referral fees in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.

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

July 27, 2016

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

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

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

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

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

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

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

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

About DivorceCourtAppeals.com and Bruce Law Firm, P.A.

The Bruce Law Firm, P.A. is limited to the resolution of marital and family la w matters in Florida’s trial and appellate courts. The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts. The firm pays referral fees in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.

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

June 21, 2016

Case:    Haritos v. Haritos
Court: Second District Court of Appeal.
Trial Judge:   Patricia A. Muscarella.
Attorneys:   O. George Bamis, Nancy S. Paikoff, Steven J. Glaros.
Issues: Child Support, Alimony, Procedure.

Holding: A temporary relief order does not merge into a final judgment where the final judgment provides that the trial court jurisdiction to later resolve property, custody and support issues. In this case, the trial court erred as it failed to enter a final judgment disposing of the financial aspects of the parties' dissolution. The appeals court reversed and remanded.

Case:     Edge v. Edge
Court: Second District Court of Appeal.
Trial Judge: G. Keith Cary.
Attorneys:   Robert L. Donald, Paul A. Rocuant.
Issues:            Alimony, Procedure.

Holding: Certain statutory requirements guide a trial court’s calculations of a party’s income for the purpose of awarding child support or alimony. For instance, a trial court must not exclude from consideration bonuses that are regular and continuous. Also, when calculating child support, voluntary retirement payments are not included as allowable deductions. An appeals court must reverse if there have been inaccurate calculations. In this case, the trial court erred in calculating the Former Husband's income. Specifically, the trial court erroneously used the amount of gross income that he reported on his financial affidavit, despite his later evidence that it had increased, and excluded employment bonuses noting that they were discretionary. Nor should it have deducted mandatory retirement payments. The appeals court reversed and remanded.

About DivorceCourtAppeals.com and Bruce Law Firm, P.A.

The Bruce Law Firm, P.A. is limited to the resolution of marital and family la w matters in Florida’s trial and appellate courts. The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts. The firm pays referral fees in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.