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.
Friday, September 30, 2011
Thursday, September 29, 2011
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
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
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
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
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
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
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.
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
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.
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.
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.
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..
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.