Friday, December 30, 2011

First District Court Reverses Child Support Modification

The First District Court of Appeal reversed the lower court today in Nabinger v. Nabinger, in so doing finding that the lower court erred in offsetting the Former Husband’s adjusted child support obligation by the amount of an adoption subsidy received by the Former Wife.  As the Final Judgment provided for the Former Wife to receive that subsidy without credit to the Former Husband, the First District found that the unrequested credit given to the Former Husband constituted a modification in his favor not requested in the pleadings.

First District Reverses Fee Award with no Factors

The First District Court ruled today in Luke v. Luke and both affirmed the reduction of alimony and reversed the fee award issued by the trial court.  The alimony reduction was not as substantial as the one sought by the appellant, but the trial court made sufficient findings, in the view of the First DCA, to justify the limited reduction.  The fee award, however, was not made with any indication of what factors were reviewed to determine whether the fees and hours were reasonable, and so it was remanded to the trial court to make those findings.

First DCA Reverses Modification and Fee Award

In Galligar v. Galligar, the First District Court of Appeal reversed a modification of alimony which reduced the former husband’s support obligation on the grounds that the modified amount still exceeded the former husband’s ability to pay, as it amounted to 81% of his net monthly income, and on the ground that the order that he pay a portion of his former wife’s attorney’s fees was improper due to her own ability to pay.  While the trial court directed that the appellant could pay the alimony and attorneys’ fees from his assets, the First District rejected “the suggestion by the trial court that a party who is meeting a current alimony obligation is required to set aside additional funds to meet future alimony obligations, in anticipation of a potential loss of income.  The First District also found that, as each party was equally able to pay fees, it was error to make any award from one party to the other.

First District Court Affirms Modification of Support for Respite Care

The First District Court ruled today in Koslowski v. Koslowski, in so doing distinguishing that ruling from the Second District’s prior ruling in Kuttas v. Ritter, 879 So.2d 3 (Fla. 2d DCA 2004).  In that older case, the Second District allowed a modification of child support to provide for respite care expenses caused by the non-custodial parent’s move out of state and the need for child care for the parties’ teenage children as a result.  In Koslowski, the father argued that because he had not ceased exercising his timesharing, he could not be liable for such additional expenses.  The First DCA found that, as the expenses in this case were medical in nature, and as the exercise of timesharing was only one of many factors considered in Kuttas, the modification was appropriate.

Thursday, December 29, 2011

Second District Reverses Default Disestablishment of Paternity

In Department of Revenue, o/b/o M.J.W. v. G.A.T., Jr., the lower tribunal granted a petition to disestablish paternity filed under Florida Statute 742.18 on the grounds that the Mother failed to produce the child for scientific paternity testing.  The Second District Court reversed that finding yesterday in an opinion published here, however, on the grounds that the lower court did not make a finding that the failure to produce the child was willful in nature.  While Section 742.18(7)(b) does in fact permit the lower court to grant the disestablishment of paternity based on a failure to appear for testing, that failure must be willful, and in the case on review the Mother was not provided with an opportunity to explain that failure.

Sunday, December 25, 2011

Fifth District Court of Appeal Issues Monumental Opinion

The Fifth District Court of Appeal issued a 76 page opinion on Friday in the case of T.M.H. v. D.M.T..  In this landscape altering decision, the Court was presented with a case of first impression where two lesbian partners were the mothers of and joined in the raising of a minor child, who was borne by one after in vitro fertilization of the eggs of the other.  The lower court, in granting summary judgment finding that the Appellant had no legal rights to the child whatsoever, actually made clear that it was hoped that the ruling would be overturned.  And, despite a 43 page dissent offered by Judge C. Alan Lawson supporting the idea that the birth mother was the sole legal mother of the child in question, the Fifth District Court, Judge Sawaya’s detailed opinion found that both parents had legal rights to the child.  Not surprisingly, the Fifth District also certified to the Supreme Court as a question of great importance the following: 

Does application of section 742.14 to deprive parental rights to a lesbian woman who provided her ova to her lesbian partner so both women could have a child to raise together as equal parental partners and who did parent the child for several years after its birth render the statute unconstitutional under the Equal Protection and Privacy clauses of the Federal and State Constitutions?

However you respond to this ruling, there can be no question that it will require the Courts of this State to address issues of first impression that will shape the way the law is applied for years to come.

Saturday, December 17, 2011

Second District Reverses Alimony and Equitable Distribution Awards

The Second District Court of Appeal ruled yesterday in Zambuto v. Zambuto, reversing the lower court’s ruling on two grounds.  The District Court first reversed because, despite stating an intention to do so, the Court did not attribute any earning capacity to the Former Wife to offset the alimony award made to her.  In addition, that Court found error in the lower tribunal’s distribution of dissipated funds to the Former Husband without a finding of misconduct on his part, and for a time period prior to the inevitable breakdown of the marriage.

Second District Finds Appeal Untimely

The Second District Court of Appeal ruled yesterday in Gohary v. Gohary, dismissing the Former Husband’s appeal on the basis that it was untimely.  While the Former Husband argued that his Motion for Rehearing tolled the time for a Notice of Appeal to be filed, the Second District Court found that, as only temporary timesharing was ordered in the Final Judgment, it did not constitute a final order.  As the deadline for appealing a non-final order is not tolled by the filing of a Motion for Rehearing, the Former Husband’s appeal was not timely noticed, and was dismissed as a result.

Thursday, December 15, 2011

Fourth District Reverses Paternity Determination Made at Case Management Conference

The Fourth District Court of Appeal ruled yesterday in Rodriguez v. Santana, in so doing reversing the lower tribunal’s ruling which made a final determination on a petition to determine paternity at a hearing noticed only for a case management conference.  In ruling that the Motion for Relief from Judgment directed to that determination should have been granted, the Fourth District Court cited Illanes v. Gutierrez, 972 So.2d 222 (Fla. 3d DCA 2007), which held that “Florida courts have repeatedly held that it is a violation of a parent’s due process rights for a court to modify visitation in a final judgment unless the issue of modification is properly presented to it by written pleadings, noticed to the parties, or litigated below.”

Third District Reverses Award of Private School Tuition

The Third District Court of Appeal ruled yesterday in Khutorsky v. Ilina, reversing as to one of the two issues raised on appeal.  In short, the District Court reversed an award which obligated the Former Husband to pay future private school tuition and related expenses in a case where the Former Wife had not sought that relief, or any affirmative relief whatsoever.  The Court cited McDonald v. McDonald, 732 So.2d 505, 506 (Fla. 4th DCA 1999) and Gelman v. Gelman, 24 So.3d 1281 (Fla. 4th DCA 2010) as support for this idea.

Monday, December 12, 2011

First District Court Affirms Temporary Custody Change

The First District Court released its Order on Rehearing today in Delivorias v. Delivorias, in which it continued to affirm the ruling by the lower tribunal which granted the Former Husband’s Motion for Contempt and also provided temporary relief on his counter-petition for modification of primary residential custody.  The First District ruled that the temporary order which moved the minor child from Louisiana to Florida was appropriate despite the lack of specific findings of fact in that the Former Husband had set out the correct test for changing custody, alleged supporting facts, and the trial court accepted those allegations.  In other words, the failure to include the “magic words” regarding the child’s best interests does not require reversal.

Friday, December 9, 2011

Second District Reverses for Denial of Due Process

The Second District Court of Appeal reversed today in Miranda v. Munoz-Ortiz, a case in which the lower tribunal granted sole time-sharing and sole parental responsibility to the Mother.  The Father, in prison, was granted the right to appear at the final hearing via telephone, but alleged that he was denied that right by the Court’s proceeding with the hearing earlier than scheduled, and the prison officials returning him to his dorm instead of allowing him to participate.  The lower tribunal ruled on rehearing that the “limitations and/or restrictions imposed on the Father as a result of his incarceration” were not matters within that court’s jurisdiction.  The Second District reversed on the basis that, at the very least, an evidentiary hearing was required to determine whether the Father had made all efforts within his control to attend the final hearing, as he is still entitled to due process in that action.

Friday, December 2, 2011

Fifth District Reverses Retroactive Modification

The Fifth District Court of Appeal reversed today in Buhler v. Buhler, a case where the Former Wife sought retroactive modification of support beginning with the date that the Former Husband ceased taking additional visitation he was awarded under a previous decree.  The lower tribunal granted the modification, but retroactive only to the date of filing of the petition seeking the modification.  The Fifth District reversed on the basis that it was mandatory that the retroactive modification begin on the date when visitation was found to have ceased.

First DCA Reverses for Not Following Mandate

The First District Court of Appeal, having previously reversed in Sullivan v. Hoff-Sullivan on the basis that the interpretation of the parties’ divorce agreement could not be re-litigated after a Georgia Court of competent jurisdiction had already entered orders interpreting it, reversed again today in an opinion released here.  On remand, the trial court again interpreted the parties’ agreement, established a new child support amount and retroactive arrearage, and as such the First District found that the mandate barring reinterpretation of the parties’ agreement had not been followed.

Wednesday, November 30, 2011

Third DCA Bars Spousal Recovery Based on Homestead Protection

In an unusual case, the Third District Court of Appeal ruled today in Kerzner v. Kerzner & Kerzner, and affirmed the lower tribunal’s ruling that a former spouse who had intervened in the divorce of her former spouse and his current wife could not recover on judgments for unpaid child support from the proceeds of a voluntarily sold home, on the basis that the Former Husband was entitled to homestead protection.

Second District Reverses Denial of Petition for Disestablishment of Paternity

The Second District Court of Appeal ruled today in P.G. v. E.W., in so doing reversing the lower tribunal’s denial of the Former Husband’s Petition to Disestablish Paternity.  In reversing, the Second District found first that a primary residential parent or a parent ordered to share in uncovered medical expenses qualifies as a “male ordered to pay child support” within the meaning of Florida Statute 742.18.  Next, the Court found that even a parent who perhaps should have suspected paternity was in question could raise DNA testing results as newly discovered evidence in support of a petition to disestablish.  And, in addition, the Court found that such a parent was not disqualified for any behavior suggested to violate F.S. 742.18(3) prior to receipt of the DNA results.  The Second District acknowledged the clear conflict as to this ruling between this case and Hooks v. Quaintance, 36 Fla. L. Weekly D2214 (Fla. 1st DCA October 6, 2011).  Finally, the Court rejected the idea that the primary residential parent continuing to exert parental authority was barred from seeking to disestablish that paternity.  The Second District expressly finds in closing that the 2006 statutory provisions permit a parent to seek this relief where it would have been barred in the past.

Friday, November 18, 2011

Fifth District Reverses for Failure to Honor Stipulation and Make Findings as to Rental Value

The Fifth District Court reversed today in Tuomey v. Tuomey, in so doing finding merit in two arguments raised by the former husband in his appeal of the final judgment of dissolution of marriage.  First, the Court neglected to include the parties’ stipulation as to contact between a relative and the minor children, and the Fifth DCA found this to be error, citing Johnson v. Johnson, 663 So.2d 663, 665 (Fla. 2d DCA 1995).  Next, the trial court was found to be in error for offsetting the Former Husband’s payment of expenses related to the former marital home pending its sale against its fair rental value without making any finding as to the amount of that rental value.  However, the Former Husband’s claim of error to the effect that the lower court distributed unvested stock options as a marital asset was rejected, as the record reflected on careful review that only vested options were distributed.

Thursday, November 17, 2011

Third DCA Reverses Emergency Relocation Order

The Third District Court of Appeal reversed yesterday in Mata v. Mata, a case in which the lower tribunal had granted the appellee’s emergency motion to permit relocation of the parties’ minor child to North Carolina.  The lower court did not take evidence or testimony, but found based on argument and the pleadings that a temporary relocation would be permitted.  The District Court reversed on the basis that the lower court did not consider the factors in F.S. 61.13002(6)(b)(2) before granting the Mother’s motion for a temporary relocation.  The Court made no finding of a likelihood that the eventual relocation would be granted, and its failure to take testimony or evidence supporting the ruling was found unreasonable as well.

Support Order Reversed for Improper Deviation

The First District Court of Appeal reversed yesterday in D.O.R., ex rel Sherman v. Daly, finding that the lower court improperly deviated from the guideline support amount by using the “gross up” method for calculating support in a case where not the parenting plan, but rather the parties’ informal agreement, provided for substantially shared time-sharing between the parents.

Fourth District Reverses for Failure to Find Net Income

The Fourth District Court reversed the lower tribunal’s judgment granting a modification of child support in Capo v. Capo yesterday, finding that the lower court’s failure to make findings as to the net income of each party as a starting point for calculating child support was sufficient to require remand.

Retroactive Modification of Support Reversed

The Fourth District Court of Appeal issued an opinion yesterday in Escobar v. Escobar, in so doing reversing the lower court’s determination that a retroactive modification of child support back to the date of a 2004 Final Judgment was required.  The ruling below was based on conflicting statements in the Final Judgment as to whether the support was to be paid bi-weekly or semi-monthly.  The Fourth District found error in the lower tribunal’s essential overruling of a final, prior ruling that found no ambiguity in the Final Judgment’s determination of support, which was not appealed.  Error was also found in the Court’s review of issues not properly plead.

Wednesday, November 9, 2011

Fourth District Reverses Contempt Order

The Fourth District Court today reversed in Hernandez v. Frontiero, a case in which the father was found to be over eighteen thousand dollars in arrears in child support, and failed to appear for hearing, but was permitted to pay that arrearage at a rate of twenty dollars a month, which would satisfy it after the child turned 29.  The Fourth DCA reversed on that ground, as well as for the lower court’s failure to award interest on the support.

Friday, November 4, 2011

Second District Explains New Relocation Statute

The Second District Court released a ruling today in A.F. v. R.P.B., offering in so doing a detailed explanation of the application, and in this case the lack of application, of Florida Statute 61.13001 to a case where a parent in another state is not relocating, but seeking to move the child to their primary, out of state residence.  The Second District Court pointed out that the newer version of that statute does not apply in that, without a change in the parent’s residence, its terms are not triggered.

Thursday, November 3, 2011

Florida Supreme Court Amends Rules of Procedure

The Florida Supreme Court today released its opinion implementing the recommendations of the Committee on Privacy and Court Records, the full text of which are available here.  The substantial changes made are all directed at removing private matters from public records for the sake of security.

Florida Supreme Court Approves Amendments

The Florida Supreme Court today released new Amendments to the Florida Family Law Rules, which are available for complete review on that Court’s website.  As proposed in February, the Court adopted the amendments to Forms 12.913(a), 12.913(b), and 12.913(c), all of which deal with diligent search and noticing actions for dissolution, as well as releasing a new form, 12.913(a)(2), a Notice of Action for cases with minor children.  Due to the issues raised at oral argument, however, the Court declined to adopt the amendments to Florida Family Law Rule of Procedure 12.070.

Wednesday, November 2, 2011

First District Court Reverses Sanctions Not Found in Child’s Best Interest

The First District Court issued a corrected opinion yesterday in Cheek v. Hesik, a case in which the former wife was imprisoned for criminal contempt for alienating the parties’ minor child and interfering with timesharing.  The Court found no error in that finding of contempt, or the bulk of the rulings below.  However, the lower tribunal’s failure to find that the 150 day make-up visitation award, which was to occur in a different state during the school year, failed for its lack of a finding that the award was in the best interests of the minor child.

Tuesday, November 1, 2011

UIFSA Appeal Dismissed by First

The First District Court of Appeal dismissed yesterday in Brautcheck v. Pulkkinen, on the basis that the orders appealed did not dispose of the Petition, and were as such not appealable final orders.  The Appellant sought review of two orders she felt “tacitly” accepted the Appellee’s argument below that the lower tribunal lacked jurisdiction to modify a Michigan decree, but in fact the two orders respectively domesticated that decree, and granted protection from a discovery request until jurisdiction to modify was established.

Friday, October 21, 2011

Second District Reverses Equitable Distribution

In Fotinos v. Fotinos, the Second District Court of Appeal released an opinion Wednesday which affirmed on all issues, but reversed the equitable distribution award.  This was in light of the Court’s failure to make findings supporting an unequal distribution of assets and debts, its finding that a home was marital, but essential grant of that property only to the Husband through exclusive use and possession, as well as the Court’s permitting the Husband eighteen years to pay back his share of equitable distribution to the Wife.

Tuesday, October 18, 2011

Second District Reverses Order a Second Time

During the appeal in Hunter, Jr. v. Hunter, the lower tribunal issued a second order disposing of the modification action in substantially the same fashion as the Order reversed by the Second District Court in the first appeal.  On Friday, the Second District Court issued another opinion in Hunter, Jr. v. Hunter, again reversing, in that Florida Rule of Appellate Procedure 9.130(f) divested the lower tribunal of jurisdiction to enter an order disposing of the case while it was on appeal.  However, the Second District was unable to address the contempt finding added to the order on appeal, as it was not briefed, and the issue was thereby waived by Mr. Hunter on appeal.

Special Concurrence from 5th DCA Regarding 12.407

In Calloway v. Tawil, an opinion released Friday by the Fifth District Court of Appeal, the Court affirmed, per curiam, on all issues raised as to this modification of timesharing.  However, in a special concurrence, Judge Kerry I. Evander gave his consideration to the lower tribunal’s ruling that, as the minor child was not testifying, he was “a member of the public just like anybody else,” and permitting that child to remain in the Court during his mother’s testimony and that of an expert witness.  As Judge Evander pointed out, Florida Family Law Rule of Procedure 12.407 attaches special considerations and public policy to the presence of a minor child in the courtroom, and suggested that it should be the rare situation where a minor child is permitted to listen in on testimony of this type.

Fifth District Reverses Credit Given for Mortgage Payments

The Fifth District Court of Appeal ruled Friday in Cortese v. Cortese, and reversed as to the credit given to the Husband for mortgage payments made during the pendency of that dissolution of marriage action.  The reversal was based on the failure of the Husband to request any such setoff in his pleadings, the Court’s finding that the Husband had traditionally paid such expenses during the marriage, and the lower tribunal’s use of these payments elsewhere in its judgment as temporary alimony paid by the Husband.

Friday, October 7, 2011

Fourth District Reverses Contempt Finding Lacking Finding of Ability to Comply

The Fourth District Court issued its opinion Wednesday in Harris v. Hampton, reversing a finding of contempt against the mother for failure to enroll the minor child in a particular school, on the basis that there was no finding of ability to comply on the part of the mother, and that the underlying order was insufficiently explicit as to the conduct required.

First DCA Approves Dismissal of Petition to Disestablish Paternity

The First District Court of Appeal ruled Wednesday in Hooks v. Quaintance, and approved the lower tribunal’s dismissal of the Appellant’s Petition to Disestablish Paternity.  The Appellant had suggested that DNA testing constituted “newly discovered evidence” for purposes of Florida Statute 742.18(1), but the Court affirmed the dismissal on the basis that the Appellant was aware that his paternity was in question, and failed to exercise due diligence to obtain proof of same.  The Court also found that 742.18 clearly requires newly discovered evidence in addition to DNA test results.

First District Reverses Finding of Limitation

The First District Court issued its opinion Wednesday in Jackmore v. Jackmore, an unusual case of a foreign decree for alimony sought to be enforced after decades against the estate of the Former Husband.  The lower tribunal found that the statute of limitations applied, which the First District reversed on the basis that Florida’s lack of any such statute was controlling under UIFSA.  The Court pointed out that laches might apply, but required an evidentiary hearing for such a determination, as mere passage of time is insufficient to prove that affirmative defense.

Friday, September 30, 2011

Fifth District Affirms Child Support Award for Couple Living Together

The Fifth District Court released its opinion today in McKee v. Sinco, in so doing affirming the lower court’s award of support despite the fact that the child’s parents had not separated and were still living together, on the basis that the support, rather than set by the guidelines, was merely a proportionate division of daycare, health insurance, and extracurricular costs.  The appeal of this award was specifically found to be frivolous by the Fifth District Court of Appeals.

Thursday, September 29, 2011

Second District Reverses Imputation for Insufficient Findings

In Torres v. Torres the Second District Court reversed the lower court’s imputation of income on Tuesday, finding that there were insufficient findings to support the imputation of income to the Husband in that case.  While the Wife testified that the Husband could work for his previous employer, the Court cited Burkley v. Burkley, 911 So.2d 262, 269 (Fla. 5th DCA 2005) for the proposition that “[M]ere allegations of employability do not constitute competent, substantial evidence for imputing income.”  Of note is the fact that, while no exception was taken to the Magistrate’s imputation, the error was found to be evident on the face of the ruling, and thus subject to appeal.

Wednesday, September 28, 2011

Fourth District Affirms Dismissal of Determination of Paternity Under UCCJEA

The Fourth District Court ruled today in Schaffer v. Ling that the lower court properly dismissed that action for determination of paternity, despite the child’s conception in Florida, as Florida was not the child’s home state under the Uniform Child Custody Jurisdiction and Enforcement Act.  This was the case, the Court ruled, because the putative father had sought timesharing and parental responsibility in addition to the determination of paternity.  The Fourth District distinguished this case from Sanchez v. Fernandez, 915 So.2d 192 (Fla. 4th DCA 2005), in which the custody of and timesharing with the child was not at issue.

Saturday, September 24, 2011

Lower Tribunal Reversed for Lack of Findings as to Pension

The Fifth District Court issued an opinion yesterday in Coleman v. Bland in which the majority of issues raised were affirmed, but reversal was required due to the Court’s failure to make findings as to the marital or non-marital nature of a pension plan which, per the record, appeared to have at least some marital portion.

Thursday, September 22, 2011

First District Reverses Non-Support IDO

The First District Court today reversed a lower tribunal’s non-final order entered in a dissolution of marriage action in Achurra v. Achurra, an income deduction order which required the Husband to replenish the children’s pre-paid college accounts by deductions from his income.  In short, the IDO was not for support, and as such was not statutorily justified.

Wednesday, September 21, 2011

Fourth District Details Nature of Separate Acts of Violence

The Fourth District Court today issued an opinion in Levy v. Jacobs in which the issue appealed centered around whether a five minute break in between two acts of violence constituted one act or two.  The Court made clear that separation in time and place was all that was necessary, and affirmed the injunction.

Friday, September 9, 2011

Fifth District Refuses to Substitute Judgment for Trial Court’s In Domestic Violence Petition

In Deale v. Deale the Fifth District Court issued an opinion today affirming the lower court’s refusal to issue an injunction against domestic violence in a case where allegations were made including over 100 phone calls a day and a stolen car.  While the Fifth District agreed with the Appellant that evidence was presented, the lower tribunal was not persuaded, and the Fifth DCA refused to substitute its own judgment for that of the lower court.

Thursday, September 8, 2011

First District Court Upholds Prospective Modification of Administrative Support Order

This week the First District Court of Appeal upheld the lower tribunal’s decision in DOR ex rel Proveaue v. Williams, a case in which the Court prospectively modified an administrative support order, and the Department of Revenue claimed they alone had the right to do so.  The Department claimed that the circuit court had no right to modify administrative support orders, which argument was rejected by the First.

Third District Reverses Reimbursement Award

In Edge v. Edge, the Third District Court of Appeal reversed the lower court’s ruling yesterday which granted the Former Wife reimbursement for taxes paid on alimony over a period of seven years.  While the Former Wife successfully took exception to the Magistrate’s finding of laches, she did not take exception to the finding of unclean hands.  As this was a separate ground for denial, and was not the subject of the Former Wife’s exceptions, the Former Husband was found to be entitled to judgment based on unclean hands.

Saturday, September 3, 2011

Fifth District Rejects Refusal to Hold Hearing on Modification of Injunction

In McFarr v. McKee, the Fifth District Court of Appeal this week overturned a lower tribunal’s ruling refusing to hold a hearing on the respondent’s request to modify an injunction on the basis of a substantial change in circumstances.  Due process required a hearing be allowed, held the Fifth.

Fifth District Court Rejects Denial of Injunction as Denial of Due Process

In Niederkorn v. Trivino, the Fifth District Court rejected the lower tribunal’s denial of an injunction this week based on the Court’s refusal to permit cross examination of a witness by the respondent.

Fifth District Upholds Rejection of Mediated Settlement Agreement

In Jones v. Jones, the Fifth District Court of Appeals yesterday affirmed the lower tribunal’s finding setting aside a mediated settlement agreement on the apparent grounds of fraud, in that the Husband failed to disclose, intentionally, the existence of a retirement account and its associated value.  However, it was the lack of any record that drove the finding, rather than any examination of the facts of the case.

Second District Remembers Lord Mansfield’s Rule

In a decision reminiscent of Lord Mansfield’s rule, the Second District yesterday overturned a finding that a putative biological father had standing to challenge the paternity of a child born to married parents who both objected, in J.S. and C.L. v. S.M.M..

Second District Rejects Rotating School Choice

The Second District Court ruled this week in Otto-Jones v. Jones, rejecting the lower tribunal’s choice to have a minor child, in response to the parents inability to choose a school, attend one school for half the year, and another for the second half.  The absence of evidence of the child’s best interest being served by this arrangement was the deciding factor.

Wednesday, August 31, 2011

Third DCA Overturns “Special Equity” Grant

The Third District Court overturned a lower court’s grant to the Husband of a “special equity” in the parties’ home in Jurasek v. Jurasek, largely because the concept was abolished nearly three years ago.  The Husband had argued that the abolition of special equity, occurring post-filing in that case, did not apply.  The Third District did not rule as to retroactivity, instead finding that an unequal distribution would also have been inappropriate, as the statutory presumption of interspousal gift was not defeated.

Second District Overturns Repeat Violence Injunction

The Second District Court overturned an injunction against repeat violence entered in Jones v. Jackson today, in that the communications on which the order was based would not cause a reasonable person emotional distress, meaning that they were not harassment within the meaning of the relevant statute, F.S. 784.046.

Fourth District Overturns Restriction on DOR’s Power To Intercept Unemployment

The Fourth District Court ruled today in State, DOR ex rel Gomez v. Varela, and the nine other cases consolidated in the same appeal, in so doing overturning the lower court’s rulings which limited the degree to which the Department could intercept unemployment payments, on the basis that it was an unjust restriction on statutory authority provided to the Department.

Saturday, August 27, 2011

Florida Family Law Forms Updated and Improved

The Florida Family Law Forms Page has been updated and improved, and now allows a party to fill out many of the forms online, and then save or print them with the information included.  Many more online fill-able forms to follow!

Second District Reverses on Conceded Child Support Error

The Second District Court issued an opinion yesterday in Halawy v. Halawy, reversing a temporary order providing for child support, but failing, evidently, to divide the Husband’s net monthly income by the combined net monthly income, per F.S. 61.30(9).  The Wife conceded the error and the Court reversed.

Friday, August 26, 2011

Fifth DCA Affirms Relocation, Reverses Equitable Distribution

The Fifth District Court released its opinion today in Wraight v. Wraight, a case where relocation was sought by the Wife after having moved to the United Kingdom without a relocation order, refusing to dismiss proceedings started in the U.K., and returned to the United States only after an Order compelling her to do so was sought and granted under the Hague Convention.  The lower tribunal found that the Wife had relied on bad legal advice, and as there was evidence supporting the findings made under F.S. 61.13001, the Fifth DCA was required to accept the lower court’s findings, even should they disagree with them.  The same opinion reversed the equitable distribution, however, in that the lower court distributed as marital a pension earned prior to the marriage, finding an interspousal gift was intended by naming the Wife the beneficiary on that account.

Thursday, August 25, 2011

Florida Supreme Court Releases New Form

The Florida Supreme Court issued an opinion today slightly modifying and releasing for use a new form, titled a Writ of Bodily Attachment (Child Support), which essentially instructs the Sheriff or other officer receiving a copy to arrest an individual for failing to appear for a hearing, failing to appear before the Court as ordered, or else failing to comply with a previous order of the Court.  It contains its own purge provision, permitting a party to be released on payment, and otherwise requires the individual be brought to hearing within forty-eight hours.

Wednesday, August 24, 2011

Fourth District Rules that Failure to Follow 12.490 is Reversible Error

In Opatz v. Opatz today the Fourth District reversed the lower tribunal’s denial of contempt, in that the referral was made pursuant to Rule 12.490 (Not 12.491) and no report or recommendations were issued and no exceptions allowed.

Fourth District Reverses Modification of Alimony

The Fourth District Court of Appeal ruled today in Simpson v. Simpson, in relevant part reversing an abatement of alimony which was retroactively applied to the first day of unemployment when the parties’ agreement called for a 90 day delay in that abatement, and reversing a modification of alimony agreed to be temporary in that the modification was not delineated as permanent or temporary.

Security Deposits Are Not Marital, Rules Fourth DCA

The Fourth District Court affirmed the lower court today on all points in Stroh v. Stroh except one, reversing the inclusion of tenant security deposits in equitable distribution and specifically finding that these monies were not marital assets, and must be held by the party serving as landlord.

Tuesday, August 23, 2011

First DCA Twice Reverses Unplead Support Modification

The First District Court issued its opinion in DOR ex rel Hill v. Young, issuing a mandate nearly identical to the one issued today in DOR ex rel Weaver v. Fredeking.  In both cases, error was found in the lack of any pleading or notice seeking the modification, despite the inequity of enforcement of the administrative support order in question in each case.

First District Court Reverses Lump Sum Award and Denial of Permanent Periodic Alimony

The First District Court released an opinion today in Sellers v. Sellers in which the lower tribunal was reversed both for denying permanent periodic alimony and for evidently granting lump sum alimony instead in the form of the Husband’s share of the marital home.  No findings were made justifying the lump sum alimony, and after a long term marriage in which the Wife had not worked in fourteen years the Wife appeared to be entitled to permanent periodic alimony.  Both rulings were found to be interrelated, and both were reversed as such.

Monday, August 15, 2011

Relocation Insufficient to Warrant Custody Modification

The First District Court ruled today in Ragle v. Ragle, reversing the lower court’s modification of custody based on the primary parent’s relocation to another county and alleged interference with contact and timesharing, in that neither is sufficient cause to modify, and in that there was no finding that the move would be better for the minor child.

1st District Court Reverses Equitable Distribution and Alimony

In their opinion issued today in Vanzant v. Vanzant, the First District Court of Appeal reversed an Amended Final Judgment issued by the lower court for providing for an unequal distribution of marital assets without explanation, for using gross, rather than net income to determine child support and alimony, for failing to offer an explanation for a business valuation, and for other reasons.

Wednesday, August 10, 2011

2d DCA Reverses Equitable Distribution, Uncovered Medical Expense Division, and Denial of Fees

The Second District Court of Appeal reversed the ruling below in its opinion in Tummings v. Francois today, finding that the lower tribunal erred in including credit card charges from after the date of filing in the equitable distribution, in dividing uncovered medical expenses according to percentage of overnight timesharing rather than percentage of income available for support, and in denying fees to the Father despite a significant disparity in income.

Past Ability to Pay Not Enough for Criminal Contempt, Says Third District

The Third District Court of Appeal issued an opinion in Keeler v. Keeler today, reversing a lower tribunal’s order holding the Former Husband in indirect criminal contempt for non-payment of support.  The lower tribunal’s ruling was based on the Former Husband’s past ability to pay and contained no separate affirmative finding of present ability to do so, warranting reversal.

Fourth DCA Sets Standards for Enforcement of Unapproved Stipulations

The Fourth District Court ruled today in Comstock v. Comstock, and in part clarified the enforceability of post-judgment agreements of the parties which are not approved by the Court.  In essence a distinction was drawn between agreements affecting child support and custody, which require approval before enforcement, and agreements affecting purely financial issues, which do not.

Equitable Distribution and Alimony Rulings Reversed by Fourth District Court of Appeal

The Fourth District Court issued an opinion today in Bell v. Bell, reversing as to two of the Wife’s three issues on appeal.  In short, the Court found error in the lower tribunal’s failure to include over $600,000.00 in receivables in the equalizing payment due to the Wife, and in that court’s failure to make findings of fact supporting the denial of bridge-the-gap alimony.

Friday, June 10, 2011

Supreme Court Leaves Long Standing Expert Witness Requirement for Fee Awards Intact

The Florida Supreme Court issued an order Per Curiam yesterday regarding their review of Roshkind v. Machiela and its certified question of:

Is expert witness testimony necessary to establish attorney’s fees due under a charging lien against a client, who has entered into a retainer agreement that requires all fee disputes to be made in writing within thirty days of the bill’s receipt and has failed to object?

Unfortunately, yesterday’s Order, despite the Fourth District Court’s reluctant affirmance, and despite the initial acceptance of jurisdiction by the Supreme Court,  redetermines that mater, denies review, and discharges jurisdiction.  Full text of the Order is here.

Wednesday, June 8, 2011

Imputation of Income Reversed by Fourth District Court of Appeal

The Fourth District Court of Appeal reversed the lower tribunal’s imputation of income in its ruling today in Mudafort v. Lee.  While there was testimony supporting income at the level imputed, the testimony did not support any permanent finding of regular income available.

Wednesday, April 27, 2011

Third DCA Reverses Order Appointing “Co-Parenting Therapist”

The Third District Court of Appeal today reversed in Sotero v. Sullivan, specifically overturning a non-final order appointing a co-parenting therapist.  Because the Order delegated authority to make binding decisions and impose monetary sanctions to the therapist, and waived the confidentiality of communications with the co-parenting therapist and other therapists, it was reversed and remanded.

Second District Reverses Final Judgment on Several Grounds

The Second District Court of Appeal issued its ruling today in Fortune v. Fortune, in so doing reversing the lower tribunal for characterizing an advance from the Husband’s business as a marital debt, for failing to award at least nominal permanent alimony to the Wife despite her entitlement to it, for assigning dependency exemptions to the Husband without providing for waivers from the Wife or making the exemptions conditional on current child support, and for failing to restore the Wife’s maiden name despite her request.

Fourth District Court Reverses Private School Tuition Order

The Fourth District Court of Appeal issued its opinion today in Grillo v. Clay, reversing the lower tribunal for its failure to hold an evidentiary hearing before modifying child support to include a private preschool tuition obligation, and pointing out that the order was defective as well for conditioning the Father’s exercise of timesharing on his payment of this new obligation, thus conditioning visitation rights on the payment of child support.

Saturday, April 9, 2011

Court Reminds Appellant of New Statute

The Fourth District Court ruled Wednesday in Cox v. Deacon, in part reminding the Appellant and others that, due to changes in Florida Statute § 741.30(6)(c), Fla. Stat. (2010), there is no longer a one year limitation on the term of a permanent injunction against domestic violence.

Failure to Address Fees Mandates Reversal

The Fourth District Court of Appeal issued its ruling in Flores v. Flores this week, reversing the lower court solely on the basis that it did not address the Former Wife’s request for fees, made in her response to a petition to modify as well as in her written closing arguments after trial and the pretrial statement.  Because the Court below did not rule on fees or reserve on the issue, and did not grant rehearing as to that failure, the Fourth District Court reversed, citing the similar case of Harbin v. Harbin, 762 So. 2d 561 (Fla. 5th DCA 2000).

Wednesday, March 23, 2011

Third District Court of Appeals Defines the Standard

The Third District Court of Appeals issued its opinion today in Castillo v. Castillo, rejecting the appeal on the grounds that the lower tribunal’s unstated ruling was within its discretion.  In so doing, however, the 3d DCA succinctly and clearly spelled out the nature of the abuse of discretion standard.  Please excuse the block cite, but its worthwhile, in my opinion:

The trial court has broad discretion to use various available remedies to do equity between the parties to a dissolution proceeding. See Misdraji v. Misdraji, 702 So. 2d 1292, 1294 (Fla. 3d DCA 1997) (“It is a well recognized principle that appellate courts should not substitute their judgment for that of the trial court by reevaluating the testimony, and that the trial court must be upheld unless an appellant clearly shows that the trial court has abused its discretion.”). The remedies which may be used to accomplish this purpose include lump sum alimony, permanent periodic alimony, rehabilitative alimony, child support, special equity in property and
the award of exclusive possession of property. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). “Because these remedies are interrelated as part of an overall scheme, it is ‘extremely important that they also be reviewed by appellate courts as a whole, rather than independently.’” Guobaitis v. Sherrer, 18 So. 3d 28, 33 (Fla. 3d DCA 2009) (quoting Canakaris, 382 So. 2d at 1202). Where a decision is within the judicial discretion of the trial judge, as in determining the amount of alimony or child support, the standard for appellate review is abuse of discretion. Viewed as a matter of discretion, on appeal we can reverse only if no reasonable judge would have decided as this one did. See Canakaris, 382 So. 2d at 1203 (“If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.”).

Wednesday, March 9, 2011

Court’s Own Investigation Causes Reversal

The Fourth District Court today reversed a finding of contempt in Albert v. Rogers, in part due to the Court’s modification of visitation without a pleading seeking that relief, as well as the Court’s decision to call the children’s school and speak to an unknown individual to check up on the testimony of the alleged contemnor.  Because of the independent investigation, the Fourth District also directed that the proceedings occur before a different Judge.

Friday, February 25, 2011

Florida Supreme Court Resolves Relocation Conflict

The Florida Supreme Court issued a revised opinion on February 10, 2011 in Arthur v. Arthur, weighing in on the conflict between the Second District Court's ruling in that case and the holdings of Sylvester v. Sylvester, 992 So. 2d 296 (Fla. 1st DCA 2008); Janousek v. Janousek, 616 So. 2d 131 (Fla. 1st DCA 1993); and Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990). In a nutshell, the Second District approved a lower tribunal's order permitting relocation twenty months after the entry of the Final Judgment, and the Supreme Court rejected the idea that a court is able to make a determination of best interest 20 months away, and required instead that "best interests determination in petitions for relocation must be made at the time of the final hearing and must be supported by competent, substantial evidence".

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