Saturday, June 13, 2009

Fifth DCA Rejects Support Arrearage

In the Wales v. Wales opinion issued Friday, the Fifth District rejected an award of support arrearages based on the lack of support in the record for the award and the lack of any testimony that the Wife's needs were not met during the subject period.

Fifth District Rejects Timesharing, Rehabilitative Alimony, Attorneys Fee Award

The Fifth DCA ruled Friday in Lovell v. Lovell, and in so doing rejected several parts of the ruling below. First and foremost, the Fifth found error with the lower tribunal's ruling prohibiting the children from exposure to the Husband's new wife during timesharing, despite the lack of any evidence of detriment from such contact. Next, the Court rejected an eight year, four thousand dollar a month rehabilitative alimony award (but not the award itself) as needing a clearer plan for rehabilitation. Finally, based on the assets distributed to the Wife, the Court reversed the attorneys' fee award below.

Wednesday, June 10, 2009

Fifth District Finds Error in Failure to Set Religious Timesharing Schedule

The Fifth District Court last week issued a substituted opinion in Arcot v. Balaraman. Of particular interest was the fact that both parties were practicing Hindis, and the lower tribunal was specifically found to have erred in failing to set a schedule for the children to observe the religious holidays respected by that religion. This would of course seem to apply to any children traditionally raised as practicing members of virtually any faith.

First District Opines on Two Motions to Dismiss

Two family cases were ruled on by the First District Court this week, both opinions regarding motions to dismiss in the underlying case. In Owens v. Owens, the Court found error with the lower tribunal's dismissal of a suit, with prejudice, seeking child support arrearages, in that no notice of the hearing was provided, and as such due process was violated. In Frier v. Frier, the Court declined to review the lower tribunal's order denying a motion to dismiss, in that, while jurisdiction was invoked under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(i), the Court's personal jurisdiction had not been attacked, and as such the order was not subject to review.

Friday, May 29, 2009

Third District Relies on Presumption of Valid Marriage

The Third District Court this week, in Cobo v. Sierralta, reversed a lower court's ruling that annulled a marriage in large part based on the Wife's failure to provide proof of a previous divorce in the face of the Husband's claims that the marriage was not valid. The Third District Court, in part, found that there is a presumption that the last marriage was valid, and as such that it was not the Wife's burden to prove that she had been divorced from a previous husband, but the Husband's obligation to prove that she had not been. In addition, the Court found that due to the lower tribunal's failure to enforce its temporary fee order, the Wife was denied adequate representation on the issue of the annulment.

Monday, March 16, 2009

3d DCA Grants Cert in UCCJEA Matter

The Third District Court of Appeal granted a Petition for Writ of Certiorari on Friday in the case of Karam v. Karam, in which the French court in the island region of Guadeloupe took on jurisdiction of a custody case based on representations that it was the children's "usual and permanent centre of interest," and not under the UCCJEA. The Court detailed the distinction between the federal definition of a "home state" as the state of residence for six prior months and the differing standard in the French Court, and granted cert, finding that the US court should not have relinquished jurisdiction to the foreign jurisdiction.

Wednesday, March 4, 2009

Oral Findings Sufficient for Child Support Modification

The First District Court today ruled in the case of Shaw v. Nelson that, due to explicit findings made on the record in the Court's oral ruling, the modification of child support made by the lower tribunal was correct. Of interest was the Court's ruling that a party failing to provide discovery was unable to raise an objection based on imprecision in the support calculations resulting from the lack of that discovery.

Friday, January 23, 2009

Fifth District Reverses Equitable Distribution

The Fifth District Court of Appeal, in Hoye v. Hoye, today reversed a Final Judgment on the grounds that the lower tribunal failed to assign values to all significant assets, and failing to distribute other assets or their full value. In citing Reich and Bussey this case again stands for the proposition that it is error to fail to identify marital assets and their values.

Thursday, January 22, 2009

Yet Another Imputation of Income Reversed

The First District Court yesterday, despite approving a finding of over $300,000.00 in dissipated assets, finding voluntary underemployment, finding entitlement to alimony and attorneys' fees, was still forced to reject the imputation of income to the Former Husband in Rabbath v. Farid, finding as is so seemingly common in recent opinions that sufficient competent evidence did not support the level of the imputation, and remanded the matter for reconsideration of the level of income supported by the evidence.

Second District Further Restricts Ordini

The Second District Court, in Oluwek v. Oluwek, today confirmed previous rulings to the effect that evidence payments from family will continue in the future are a requirement to impute income based on Ordini and its progeny. Of interest is that, contrary to prior rulings like Vorcheimer, only the Husband testified below that the payments had ceased and could not continue, and no other evidence was presented on the subject.

Fourth District Interprets F.S. 61.14

The Fourth District Court of Appeal, granting rehearing in French v. French, found error in the lower court's decision not to modify alimony in that case despite finding that a supportive relationship existed in the former wife's current circumstances, and reversed. The Court found that, in determining that a supportive relationship does exist pursuant to §61.14, it is error to not reduce or terminate alimony.

Monday, January 19, 2009

2d DCA Approves Contempt, Rejects Incarceration

The Second District Court, in Pierce v. Pierce, affirmed a finding of contempt and rejected an argument that the lower tribunal should have reduced an alimony award on which contempt was sought prior to the filing of any supplemental petition for modify. They drew the line, however, at permitting the lower tribunal to order incarceration without a separate affirmative finding of ability to pay the purge amount.

2d DCA Rejects Fee Award for Lack of Evidence

The Second District Court ruled on Friday that the nearly forty thousand dollar fee award in Braswell v. Braswell was to be reversed without opportunity for new hearing, in that insufficient evidence was put before the lower court to justify a fee award. The 2d DCA was quite clear that the full invoices and records of fees, in their entirety, as well as testimony from counsel, are a mandatory requirement for any award of fees.

Thursday, January 15, 2009

New Amendment to Florida Family Law Rule 12.010

Florida Family Law Rule of Procedure 12.010 states the purpose of the family law rules themselves. It has today seen amendments approved by the Supreme Court available here. In essence the amendment removes any reference to how the rules should be construed and includes in the purpose of the rules the avoidance of multiple cases by the same parties.

Wednesday, January 14, 2009

2d DCA Rejects Equitable Distribution

The Second District Court of Appeal today rejected the equitable distribution of assets and debts in the long-term marriage of Parks v. Parks. While rejecting the remaining arguments, the Court found that it was error to fail to award the Wife a setoff for the reasonable rental value of property occupied by the Husband, and that it was error to award the Wife half of the proceeds of a home-equity line of credit as equitable distribution while allowing the Husband to keep the purchase made with his half of the proceeds as non-marital.

Monday, January 5, 2009

Alimony Award Reversed by 4th Due to Income Disparity

The Fourth District Court today reversed the alimony award below in Kitchens v. Kitchens on the basis of the disparity in the parties' income it would create. The Court paid particular attention to the lower tribunal's inclusion of discretionary disbursements from retirement as income, drawing a clear line between mandatory IRA withdrawals due to age and discretionary receipt of funds from retirement.

15th Circuit Final Judgment Reversed for Lack of Findings

Among the reasons for reversal of the Final Judgment in Lift v. Lift today by the Fourth District Court were the award of alimony without findings as to income or statutory factors, the failure to make statutory findings regarding values and reasons for equitable distribution, and the disregard of various stipulations of the parties regarding equitable distribution, again found to be binding on the Court as well as the parties. Of particular interest was the Fourth District's rejection of the Court's award of half-shares of the marital veterinary business to each party despite a stipulation that the Wife would retain it at an agreed value. The Fourth District ruled that:

"Second, the parties correctly agree that the trial court erred in awarding each a half interest in the wife's veterinary business, thereby forcing them to be business partners. As we have previously held, compelling former spouses to remain in business together "creates [an] intolerable situation." Novak v. Novak, 429 So. 2d 414, 414-15 (Fla. 4th DCA 1983); see also Manolakos v. Manolakos, 871 So. 2d 258, 260 (Fla. 4th DCA 2004) ("[d]issolution of marriage being what it is, it is clearly an abuse of discretion for the trial court to order two parties who have stated that they do not want to continue to work together after their divorce to do just that")."

Judge’s Arrest Demanded Recusal, 4th DCA Rules

The opinion in Moskowitz v. Moskowitz released this week from Florida's Fourth District Court of Appeal made clear that recusal is required not based on the actual existence of bias, but on a well founded fear of bias, in this case resulting in part from the Judge's arrest on marijuana charges. Of note is the Fourth District's statement that "We do not gainsay the striking improvidence of allowing the Judge to continue to sit on civil cases while criminal charges were pending against him. Yes, the Judge is entitled to the presumption of innocence in his criminal case. But that hardly generates a coincident supposition that litigants in cases over which he presides while his own criminal charges are unresolved need have no reason to fear his impartiality has been impaired. We are bereft of reasons to escape reversal on this ground."

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