Friday, December 17, 2010

Supreme Court Approves New Forms

The Florida Supreme Court issued its ruling yesterday approving a new set of family law forms, 296 pages in all, with a a few changes included.  Full text here.

Wednesday, November 24, 2010

Denial of Continuance Rejected by 3d DCA

The Third District Court today reversed the lower Court’s denial of a continuance in Quintero v. Kenyon, rejecting the trial and final judgment of paternity that followed as well.  The Third District Court relied on the facts that Mother’s counsel had withdrawn “on the eve of trial,” and there was no apparent showing of prejudice. 

Circuit Court Reversed in Administrative Support Action

The Fourth District Court today reversed a lower Court’s ruling in Dept. of Revenue v. Wardlaw in turn reversing a final judgment in an administrative support action.  The Fourth District held that jurisdiction to review final administrative support orders lies with the District, and not the Circuit Courts.

Fourth District Court Reverses Fee Award

The Fourth District Court of Appeal issued its opinion today in Phillips v. Ford f/k/a Phillips, in so doing reversing the lower Court’s award of fees and costs to the Former Wife on the basis that, while a finding was made as to the Former Husband’s superior ability to pay, no finding was made as to the Former Wife’s need, or her financial position.  The Fourth District reversed, citing Baime v. Baime, 850 So.2d 606 (Fla. 4th DCA 2003) as analogous, in that in both cases the Court was required by statute to consider the financial resources available to both parties.

Tuesday, November 16, 2010

No Easy Road to Attorneys’ Fees

The Fourth District Court issued an opinion last week in Campbell v. Campbell, in so doing reversing a lower court ruling granting fees and costs to the Appellee.  In short, even when a default is in place, the lower tribunal will always be required to make sufficient findings to justify any award of fees.

Friday, July 9, 2010

Fifth District Court Recedes from its Rejection of Bridge The Gap

The Fifth District Court today issued an opinion in Engesser v. Engesser, a case which allowed only limited review due to the lack of a transcript, but did provide the Court with an opportunity to recede from its prior rulings, in Martin v. Martin, 582 So.2d 784 (Fla. 5th DCA 1991), which disapproved of bridge the gap alimony. The ruling is narrowed to the existence of an award of this type, and does not provide a specific basis for the permissibility of the award, but each District Court has now recognized the existence of the form of relief and its potential propriety.

Fifth DCA Upholds Choice of Law Provision Despite Public Policy Argument

The Fifth District Court of Appeal issued its ruling in McNamara v. McNamara today, holding in part that the appeal of the lower tribunal's use of a choice of law provision was not reversible despite a claim by the Wife that, as Georgia recognizes no spousal privilege, the foreign law was contrary to Florida's public policy.

Thursday, July 8, 2010

Disqualification of D.O.R. as Counsel Reversed

The First District Court, in an opinion issued yesterday in Dept. of Revenue v. Collingwood and Gray reversing the lower tribunal's ruling that the Department of Revenue was prohibited from representing a father seeking modification of support based on the father's unclean hands due to child support arrears. The Mother below, a former DOR client, had asked for disqualification of the D.O.R. based on conflict of interest. The Court granted the motion, but on the grounds that the father was in arrears and "it would be inequitable to allow the department to represent him against the mother, and that the department's efforts should be directed at enforcement of the existing support order." The First District first explained that there was no conflict, as the DOR's counsel represents the department and not either parent. As to the child support arrears, the Court of Appeal found that the statutory requirement of a review of child support obligations every three years and modification if appropriate is not linked to whether the payor is current in support payments.

Second District Narrowly Reverses in Grigsby

The opinion was released in Grigsby v. Grigsby by the Second District Court of Appeal yesterday. The lower tribunal had "characterized the Mother's actions as the worst case of parental alientation that it had ever seen" and the ruling below gave sole parental responsibility to the Father and denied all timesharing to the mother. The Court only narrowly reversed that ruling in holding that when a lower tribunal uses its discretion to suspend timesharing, conditions must be contained in the Order which can be met to reestablish a relationship between parent and child. In the lower tribunal's order that decision was relegated to the Father and various unidentified professionals, and as such the non-final Order was remanded for the trial court to set forth the specific steps permitting reestablishment of time-sharing and guidance as to the level of proof required. The lower court was also required to reserve jurisdiction to consider ongoing progress.

Second District Reverses from Face of Final Judgment

The Second District Court issued its opinion in Smith v. Smith yesterday, and in a rare move overturned the Final Judgment below without the benefit of any transcript of the proceedings. The Court of Appeal found that there were errors evident from the Judgment itself as to support and equitable distribution calculations. However, while a lengthy discussion is contained in the opinion as to the effect of adultery on timesharing issues, and an appearance of error seems to be raised in the lower court's ruling as to timesharing issues, that portion of the judgment was affirmed based on the lack of a transcript permitting a full review.

Third District Rejects Claim of Imputation

The Third District Court of Appeal issued its ruling yesterday in Boyd v. Alonso-Boyd, reversing in part and affirming in part an Order below approving the report of a General Magistrate. The Husband succeeded on appeal in his claim that, due to timely objection to the Magistrate hearing the issue of temporary attorneys' fees, the report lacked authority to rule on that claim. However, the opinion rejected the Husband's argument that imputation of income to him was unsupported by findings in the order, on the ground that the order specified no imputation, but rather relied on the Husband's own testimony.

Thursday, July 1, 2010

New Alimony Statute Takes Effect Today

Effective today, all initial awards of alimony and modifications of such awards are subject to the new provisions of Florida Statute §61.08. The new form of the statute has not yet hit the Online Sunshine website, but no doubt will today. Changes from the previous form of that statute include:

  • The addition of specific references to "bridge-the-gap" and "durational" alimony, as well as a provision for combined awards of various types of alimony;
  • A requirement that the Court first make a specific factual determination as to the need for alimony and the ability to pay it;
  • An additional requirement spelled out that the Court consider earning capacities, educational levels, vocational skills and employability in granting alimony;
  • A requirement that the Court consider "The responsibilities each party will have with regard to any minor children" the parties have in common in granting alimony;
  • A requirement that the Court consider the treatement and consequences of taxation of any alimony aware, including designations of alimony as nontaxable or nondeductible;
  • A specific reference to income available through investments of assets held by a party in considering all available sources of income;
  • An explicit statement of a rebuttable presumption that a marriage less than 7 years is short-term, a moderate-term (grey area) marriage is between 7 and 17 years, and a long term marriage is over 17 years;
  • A statutory definition of bridge-the-gap alimony and a limit of two years on such an award, as well as a provision making bridge-the-gap alimony non-modifiable in amount or duration;
  • Specific details on rehabilitative alimony award, which may be modified, but which requires a specific plan for rehabilitation;
  • The addition of the concept of "durational alimony" for a set time following a marriage of short or moderate duration, the length of which can only be modified except under exceptional circumstances;
  • A limitation on permanent alimony to the "needs and necessities of life" per Levine v. Levine, 964 So.2d 741 (Fla. 4th DCA 2007) and related authority;
  • And similar modifications, largely in keeping with case law developments.

Wednesday, June 30, 2010

Fourth District Reverses Repeat Violence Injunction

The Fourth District Court released an opinion today in Tiger v. Marcus reversing the lower court's granting of an injunction against repeat violence on the grounds that only a single act of violence was shown. The Court specifically found that despite a second instance of a threat of violence, in the absence of an overt act leading the petitioner to feel a reasonable imminent fear of violence on that occasion, repeat violence had not been shown.

Fourth District Court Reverses Fee Award

The Fourth District Court today reversed the lower tribunal's ruling in Herbst v. Herbst, citing Rosen v. Rosen, 696 So.2d 697 (Fla. 1997) for the proposition that a former spouse cannot be ordered to pay 75% of their former spouse's fees where the parties have roughly the same disposable income. The Court was careful to narrow its ruling to the 75% awarded, as a small percentage of fees may have been justified, but 75% clearly was not.

Tuesday, June 29, 2010

Fifth District Rejects Final Judgment Commemorating Unwritten, Unrecorded Settlement

The Fifth District Court of Appeal last week issued its opinion in Saunders v. Saunders, holding that the lower tribunal's Final Judgment had to be reversed in that it commemorated a settlement agreement which was neither written nor recited on the record, and which instead was only reflected in the Court's minutes. As such, the Court found that the Final Judgment was based on facts neither stipulated nor supported by evidence, and therefore could not stand. The Fifth District largely relied on the very similar facts of Olson v. Olson, 704 So. 2d 208 (Fla. 5th DCA 1998), which had the same result.

Wednesday, June 23, 2010

Fourth District Court Affirms, But Explains, in Cohen v. Cohen

The Fourth District released an opinion today in Cohen v. Cohen in which they affirmed the lower court's ruling but offered detailed explanations as to several issues. First, they found no abuse of discretion in the lower tribunal's denial of motions seeking to amend and for continuance based on claims of concealed assets where over 16,000 pages had previously been produced in response to 14 requests for production and no evidence suggested concealment during four days of trial. The Fourth District also found no error in the trial court's belief that the Husband's accountant was the more credible, evidently largely because of the Husband's testimony, found credible, that no interspousal gift was intended when a business account was titled jointly, and the Wife's apparent unwillingness to accept certain assets at the values put forward by her own expert accountant. And, finally, the Court approved of the trial court's denial of bridge-the-gap alimony based on the long period of separation prior to trial, the lack of evidence that the Wife could meet short-term needs without bridge-the-gap alimony, and the lack of evidence found as to the Wife's efforts or intention to seek employment in the future.

Fourth District Court Approves Rental Credits After Exclusive Possession Ends

The Fourth District Court today reversed in Weiner v. Weiner, holding that despite the long standing rule that a party receives no credit or setoff for half of the rental value in a property the other party has been granted exclusive possession of, nothing precludes the receipt of such a credit for that party's use of the property after the period of exclusive possession has ended.

4th DCA Reverses Again in Posner v. Posner

The Fourth District Court of Appeal ruled today in Posner v. Posner, again reversing the lower court in this dissolution of marriage action. Specifically, the Court found error in the lower court's attribution of a non-marital credit card debt of the Wife to the Husband, and reversed a payment schedule that permitted the Wife to pay off equitable distribution over a 71 year period. The Court specifically found abuse of discretion in requiring the Husband to do without the majority of marital assets for the rest of his life. At the same time, however, the Fourth District affirmed the imputation of $1,400.00 in monthly income pursuant to F.S. §61.30, as a result of his living rent-free in a home provided by his parents. The Court found that although such payments are usually from an employer, nothing in the statute precludes the inclusion in income of any in-kind payment or reimbursement that reduces living expenses.

Thursday, March 18, 2010

Fourth District Court Excludes Income from Residence

The Fourth District Court ruled today in Levine v. Levine that it would be improper to charge a party with income representing the rental value of the marital home in which they live with their children…

Sunday, March 7, 2010

4th DCA Approves Contempt Order

The Fourth District Court completed its review in Ginnell v. Pacetti, 4D09-1942 on March 3rd, releasing an opinion which can be found here. The Court was reviewing the order resulting from a four day contempt hearing regarding timesharing, and contains several interesting findings. Among other rulings, the Court distinguished that case from the Perlow decision despite the lower tribunal's use of a portion of counsel's proposed Order, and approved a modification of a parenting plan as a result of a contempt finding and the discretion granted by Florida Statute §61.13(4)(c)(6).

Florida Supreme Court Approves New Forms

The Florida Supreme Court, in an opinion released March 4th, has now approved a new Income Deduction Order for immediate use state-wide, along with a Notice to Payor and Notice of Filing Return Receipt that accompany that form. The full opinion text can be found here.

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