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.
Friday, January 23, 2009
Thursday, January 22, 2009
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.
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.
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
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.
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
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
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
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.
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")."
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."