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.
Friday, December 30, 2011
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.
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.
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
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
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
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.
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
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.”
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
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
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
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.
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.