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.

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