The Second District Court ruled yesterday in Weissman v. Weissman, granting in part the Petitioner’s Petition for Writ of Certiorari regarding the lower court’s emergency ex parte order which denied him all timesharing for a period of 90 days. The Court ruled that, while extraordinary circumstances justified the remainder of the lower court’s emergency order, there were no such circumstances justifying a denial of timesharing, and more importantly there was absolutely no notice allowed to the Petitioner prior to the ruling on that point. As a result of that denial of procedural due process to the Petitioner, the Court granted cert as to that issue, and quashed the no-contact provision of the order.
Thursday, December 13, 2012
The First District Court of Appeal ruled Monday in Therriault v. Therriault, first affirming the lower court’s award of permanent alimony despite the “moderate” term of the marriage. However, the First District was compelled to reverse the award of life insurance as security for that alimony in that the lower court failed to make the requisite findings regarding availability and cost of the insurance, ability to pay by the former husband, and the special circumstances warranting security for the support award, such as a spouse in poor health, one in arrears, or the like.
Thursday, November 22, 2012
The Fourth District Court of Appeal ruled yesterday in Lotridge v. Lobasso, a case in which the Appellant sought to modify a final judgment of injunction based on changed circumstances, and the request was denied without a hearing. The Fourth reversed and remanded for a hearing to be held, where the Appellant is entitled to a “meaningful opportunity to be heard” pursuant to Colarusso v. Lupetin, 28 So.3d 238 (4th DCA 2010).
The Fourth District Court of Appeal ruled yesterday in Miller v. Miller, a case in which the Appellant raised seven different reasons why an order granting attorneys’ fees to the Appellee should be reversed. The Fourth District found merit in the first argument raised, which was that it was error for the Court to grant prevailing party fees under the Marital Settlement Agreement for a modification, when the prevailing party clause was self-limiting to enforcement actions. The Appellee argued that his action for modification was inextricably intertwined with the Appellant’s simultaneous contempt action. Citing Wendel v. Wendel, 852 So.2d 277, 282 (Fla. 2d DCA 2003), the Court found that contractual fee provisions are required to be strictly construed, and as such found that the plain language of the agreement prevented an award of fees for a modification action. The Appellee’s claim of intertwined issues was rejected because the work on the contempt and enforcement were not indistinguishable from each other, pursuant to Franzen v. Lacuna Golf Ltd. P’ship, 717 So.2d 1090, 1093 (Fla. 4th DCA 1998). On remand the trial court was mandated to vacate the fee award.
Friday, November 16, 2012
The First District Court of Appeal has been the first Court to enforce some of the new alimony language in Florida Statute 61.08 today, in its ruling in Margaretten v. Margaretten. Under that statute, an award of permanent periodic alimony now requires the lower court to find that no other form of alimony would satisfy before awarding permanent alimony. The Former Wife argued that this finding was implicit in the other rulings made. The First District rejected this claim, and in fact pointed out that some of the factors cited by the trial court would appear to support a durational award. As such, on remand, if the trial court again orders permanent alimony, it has been mandated to first exclude all other types of alimony.
In Colley v. Colley, the lower court issued a Final Judgment of Dissolution of Marriage which set aside the parties’ Marital Settlement Agreement as vague and in part violating public policy. On review, the First District agreed with the former wife that there was no showing of fraud, and that any vagueness in the agreement could be solved by the Court’s interpretation. Likewise, if part of the agreement violates public policy, only that part could be declared invalid. Because the failure of the agreement to resolve every issue is not a reason, according to the First District, to invalidate the entire MSA, reversal was required with the Court instructed to apply the agreement as valid.
In the case of Ricks v. Dodier, the lower court issued a Final Judgment of Injunction for Protection Against Domestic Violence based on the entry of a stipulation and without a full evidentiary hearing. On appeal, the Fifth District Court of Appeal determined that the stipulation in fact only provided for the extension of the temporary injunction previously entered. As such, reversal was required.
The Fifth District Court of Appeal reversed today in Scott v. Scott, finding that the downward modification of alimony granted to the Former Husband was insufficient. The Former Husband had suffered two heart attacks and a significant reduction in income, but the lower court clearly took issue with some of the expenses listed in the Former Husband’s financial affidavit, including a $500.00 per month gas expense despite having no automobile or employment, and as a result reduced a $700.00 per month alimony payment to $500.00 per month. On review, the Fifth District found that, even without the expenses which the lower court appeared skeptical of, the Former Husband’s other expenses still do not permit him to pay $500.00 per month. On remand the lower court is to further reduce the obligation to a level both parties can meet their needs upon.
The Fifth District Court of Appeal reversed today in Hernandez v. Hernandez, both as to equitable distribution and as to alimony. First, while it was argued that the Court erred in using the tax assessor’s value for the value of one parcel of real property, the Fifth District found that, in fact, the lower court had first reviewed each party’s position as to value, and then found that the assessed value was within the range, and therefore closest to fair market. However, the lower court was reversed for failing to identify, value, and deduct from the value of real property an existing bridge loan. Finally, while the lower court was within its discretion to award alimony to the Wife, the Fifth District found that the award was made based on an incorrect and out of date financial affidavit for the Wife. As such, on remand, the lower court was instructed to make the determination again based on the more accurate affidavit.
Wednesday, November 14, 2012
The First District Court of Appeal reversed yesterday in Goodwin v. Whitley, a case in which the lower tribunal denied a motion seeking to modify the terms of an injunction against repeat violence after taking four words of testimony from the petitioner, and none from the moving party. The First District ruled that the Appellant was entitled to cross-examine the Appellee, to testify, and to present argument to the court, and denying that opportunity to him denied him due process as well. On remand a full evidentiary hearing is required.
The Fourth District Court ruled today in Hernandez v. Silverman, a case in which the Court below denied the petition without conducting a full evidentiary hearing. The Fourth District ruled that, as the allegations were pled with sufficient specificity and additional evidence given at hearing might have justified the injunction, the hearing was required. On remand the lower court is required to hold a full evidentiary hearing.
Friday, November 9, 2012
The Fourth District Court of Appeal ruled yesterday in Campbell v. Campbell, a case in which the lower court entered an order modifying the parties’ parenting plan, and then vacated it while it was on appeal. The Fourth District Court found that the lower court lacked jurisdiction to vacate its Modification Order while an appeal of that order was still pending. As the Former Wife voluntarily dismissed her appeal in apparent reliance on the order now reversed, the issue is closed for further review.
Friday, October 26, 2012
The First District Court of Appeal reversed today in Champion v. Champion, a post-judgment case in which the trial court approved a Magistrate’s report without holding a hearing. However, rather than reversal for not holding a hearing, the First District Court was compelled to reverse because there was not even an Order of Referral directing the Magistrate to hear the matter in the first place.
Wednesday, October 24, 2012
The Fourth District Court of Appeal ruled today in McPherson v. Bittner, a case in which the appellant challenged the lower court’s award of fees to the Appellee. In a previous appeal, the same Appellant had already challenged the lower court’s grant of fees in the underlying action, and that appeal resulted in affirmation, as well as an order finding entitlement to appellate fees. The Appellant now appealed the subsequent order granting those fees from the lower court. The Fourth District rejected the appeal, finding that entitlement was already the law of the case, and no material change was offered. Of note is Judge Warner’s special concurrence, in which she primarily addresses the Appellant’s repeated contention that appellate fees are not authorized in paternity actions , and makes a case that the Court should recede from Gilbertson v. Boggs, 743 So.2d 123, 128-9 (Fla. 4th DCA 1999) to find that 742.045 contemplates appellate fees. It is hard to find fault with Judge Warner’s comparison of the two plus decades of statutory interpretation of F.S. 61.16 and the interpretation of the nearly identical F.S. 742.045.
Thursday, October 18, 2012
The Fourth District Court of Appeal affirmed yesterday in Whelpley v. Whelpley, a case in which the Appellant sought to prove error on the face of the Final Judgment due to the absence of a transcript. While the Court initially found confusion in the award of bridge-the-gap alimony for a three year duration, on review of the Judgment it became clear that the actual award was one for rehabilitative alimony, after presentation of a plan for rehabilitation, and was as such affirmed.
Friday, October 12, 2012
The Fifth District Court of Appeal ruled today in Gibson v. Gibson, agreeing with the Former Wife that reversal was required on two points. First and foremost, despite finding that alimony was needed and appropriate, and despite the parties’ having agreed to an alimony award, the lower tribunal neither awarded alimony or explained why not. The Fifth District reversed on this point assuming it was an oversight by the lower court. In addition, the final judgment contains instructions requiring that the Former Wife be permitted to keep the home and the debt upon it as her own asset free and clear, and yet also requiring the sale of the home at the termination of an exclusive possession award and the division of the proceeds. Again, assuming error, the Fifth District Court reversed.
The First District Court of Appeal affirmed today in Van Looven v. Van Looven, a case in which the Former Husband appealed the lower court’s dismissal of his petition to modify child support after repeated failures to allege a substantial change in circumstances. The Former Husband argued that it was sufficient to argue that the modification was in the best interests of the children. However, the First District relied upon Florida Statute 61.14(1)(a) (2010) in finding that such an argument could not be sustained. In short, the root of the confusion was with the Overbey v. Overbey, 689 So.2d 811, 813 (Fla. 1997) ruling. That ruling centered around the bases on which a court could change child support, and includes in the permissible scope of a such an order a need to modify child support in the best interests of the child. However, the same case confirms that for a party to request a modification, they are still required to show a substantial change. As such, the dismissal was affirmed.
The First District Court of Appeal ruled today in Bateh v. Bateh, a case in which the Former Wife raised a number of issues on appeal. First and foremost, the Former Wife argued that the trial court erred in declining to find that the Former Husband had dissipated marital assets. The First District Court, however, found ample evidence in the record to contradict this assertion, in that the Former Husband’s dental practice was clearly in dire straits, and his attempts to save it did not constitute dissipation. The Former Wife also, however, raised the lower court’s failure to distribute approximately $30,000.00 in furnishings purchased by the Former Husband for a rental home he occupied during the parties’ separation, and reversal was required on that point. In addition, the Former Wife argued that the lower court erred in failing to address a post-filing check from the Former Husband to a family member, and on remand the lower court was instructed to address this issue. The First District also reversed as requested by the Former Wife on the grounds that the car found to be the joint property of the adult children was not valued and assigned. And, finally, the Court agreed that reversal was required due to the lower court’s failure to include in its Final Judgment a determination of the nature of the Former Wife’s actual need for alimony when awarding only nominal alimony which did not meet the need.
Wednesday, October 10, 2012
The First District Court of Appeal ruled today in Johns v. Johns, a case in which the Appellant’s adult son was granted an injunction under Florida Statute 741.20 (2011) against the Appellant without the benefit of a full evidentiary hearing. Instead, the trial court conducted questioning at an informal hearing at which only the Appellee was given an opportunity to present witnesses and testify. The Appellant was allowed to present some evidence, but was not questioned by the lower court as to the allegations in the petition. Based on this, and the seriousness of the possible penalties faced by the Appellant, the injunction was reversed with a full evidentiary hearing required on remand.
The Second District Court of Appeal affirmed today in Franklin v. Patterson-Franklin, a case centering around a QDRO dividing the marital portion of the Former Husband’s employee stock ownership plan. While the Second District acknowledged that there were multiple mathematical errors in the QDRO, the largest of which gave the Former Wife a thirty-two thousand dollar plus windfall in her favor. Unfortunately, however, as neither party caught the mistake in time for rehearing or an appeal of the Final Judgment, the argument was raised for the first time on appeal of the QDRO, and therefore rejected. In a happy coincidence of tipsy coachman-hood, however, a second error resulted in the accidental attribution of an additional thirty-two thousand dollars in debt to the Former Wife she should not have been assigned. Again, this issue was never raised in a timely fashion, meaning that the errors cancel each other out, for the most part.
Saturday, October 6, 2012
The Florida Family Law Rules of Procedure were amended again yesterday by the Florida Supreme Court, in an opinion available here. Among other changes, the language on interrogatories now permits a party to serve less than the full number of questions in the standard interrogatories and confirms that offers of judgment under Florida Rule of Civil Procedure 1.442 cannot be used in family law proceedings.
Wednesday, October 3, 2012
The Third District Court of Appeal reversed today in Murphy v. Murphy, a case in which the lower court granted a downward modification of alimony based on its finding of a supportive relationship at the same time the court found that the Appellant received no financial support whatsoever from that relationship. The Third District rejected the ruling on the basis that Florida Statute 61.14(b) and other authority make clear that some form of economic support must be received to support a modification. The Court further clarified that, despite the varying definitions of the word “support” in regular usage, a “supportive relationship” necessarily involves an alimony recipients receipt of monies from that source as well.
The First District Court of Appeal ruled today in Sabatini v. Wigh, affirming the lower court’s finding of contempt of shared parental responsibility against the appellant for changing a minor child’s school without agreement. However, the First District reversed the lower court’s order which essentially gave the Appellee discretion to choose whether to return the child to the original school choice, especially in light of testimony from the Appellee that the child’s best interest would not be served by such a decision.
The First District Court of Appeal affirmed today in Amos v. Amos, with detailed comments as to the issue of remote dissipation. Specifically, the Court looked at the question of whether the transfer of shares three years prior to the filing of a petition for dissolution was an intentional dissipation of marital assets. The First District Court ruled that, in line with the Fifth District’s ruling in Beers v. Beers, 724 So.2d 109 (Fla. 5th DCA 1998), the First District would also consider dissipation happening in a remote timeframe under the “catchall” provision of Florida Statute 61.075(1)(j), permitting a review of asset transfers well prior to the two years provided for in the statute.
In Hitchcock v. Hitchcock, 992 So.2d 436, 439 (Fla. 4th DCA 2008), the Fourth District Court of Appeal reversed the lower court’s judgment on equitable distribution and mandated that the court reconsider its previous fee award. The court below required a $50,000.00 plus reimbursement based on this mandate, but today, in Hitchcock v. Hitchcock, the Fourth District again reversed the award, finding that the award still resulted in an unjustified award of fees to one party in the face of nearly equal resources. As such, the 4th DCA reverse again, now mandating complete reversal of the previous fee award.
The Fourth District Court of Appeal affirmed today in Hoff v. Hoff, and took the occasion to write to address whether detailed factual findings are necessary in temporary relief orders. In short, the Fourth District found that temporary relief hearings are not meant to be trials, there is a need for expeditious relief, and as long as the court’s decision is based on competent, substantial evidence it will be affirmed.
Saturday, September 22, 2012
The Second District Court of Appeal reversed yesterday in Hoffman v. Hoffman, a case in which the lower court had found an income of $3,000.00 a month for the former husband. The basis for this finding was that the court determined that it was unable to use the former husband’s actual income, earned in China, based on the different standard of living in that country and the U.S.. The lower court stated that “what I’ve decided to do is – and I did this on sort of a pro rata ratio-type thing in my mind – decide that his net monthly income is the equivalent of earning in the U.S. $3,000 per month.” The Second District Court found that there was no evidence in the record supporting the trial court’s determination of the $3,000.00 figure, or any imputation of income which would raise the former husband’s income to that amount. As such reversal and remand was required.
Saturday, September 15, 2012
The Fifth District Court of Appeal reversed yesterday in Frenzke v. Jacobs, a case in which largely uncontroverted evidence that certain assets were non-marital was evidently overlooked, as the lower court ordered that those assets be used to pay marital debts. The Fifth District found that, in fact, the lower court did not rule as to the marital or non-marital nature of the assets in question, requiring remand.
Wednesday, September 12, 2012
The First District Court of Appeal reversed yesterday in Young v. Young, a case in which the lower court granted an injunction against domestic violence in response to allegations that the wife had changed her husband’s e-mail password and used private information from the passwords in court filings. The court found that the behavior was cyberstalking, but the statutory definition of that term required reversal.
Friday, September 7, 2012
The Fifth District Court of Appeals reversed today in Morris v. Mascia, a case in which the lower court granted a permanent injunction against domestic violence in favor of the appellee and against the appellant. As those parties had never resided together, the Fifth District Court reversed the lower court’s grant of the injunction as departing from Florida Statute 741.30(1)(e).
The First District Court of Appeal reversed today in Shawfrank v. Shawfrank, a case in which the Appellant, the Former Husband below, was ordered to pay substantial fees to the Appellee on the basis that his petition for modification of alimony was without merit. The First District found that in fact they were unable to conclude that the Former Husband’s petition was wholly without merit, in that the record supported that the former husband had lost a source of income, and was depleting capital assets to pay alimony. As such, because the suit was not wholly without merit, and because the parties were each able to pay their own fees, the award was reversed.
Friday, August 24, 2012
The Second District Court of Appeal reversed today in Weaver v. Weaver, a case in which the lower court had ruled that each party to the divorce would pay 50% of uncovered medical expenses as incident to child support. The Appellant argued that the law in fact requires the court to divide those expenses according to each party’s pro rata share of the total income available for support, and the Second District Court agreed.
The Fifth District Court of Appeal reversed today in Cortina v. Lorie, a case in which the lower court issued an order reducing the amount of child support arrearages due from the former husband. The former husband alleged that he had been unable to pay support while in prison, that he had made some payments, and that there was a verbal modification of his obligation to pay while he was in prison. The Fifth District, however, found that the inability to pay argument was waived by his failure to seek modification at the time of his incarceration, that he offered no evidence of payment while he was in prison, and that the trial court rejected the verbal modification argument. None of these grounds were sufficient to warrant a reduction in arrearages. The trial court, in fact, had ordered the reduction on the theory that only the Former Wife, and not the children, would benefit from repayment of the already vested arrearages. The appellate court ruled that, even if this were a reason for modification, it was outside the scope of the pleadings or any matter tried by consent.
The Fifth District Court of Appeal ruled today in Fabre v. Fabre, reversing the lower court’s dismissal of a petition for paternity. The petition had been dismissed as the child’s mother and her then husband’s final judgment of dissolution of marriage established paternity, and the lower tribunal found this to be res judicata as to any new request for determination of paternity. The Fifth District found this was error, in that the purported father was not a party to that original divorce suit. While the Appellee argued that the pleading was insufficient to state a case, the Fifth District pointed out that the Appellee was attempting to correct that error by amendment, and his action was dismissed instead. The dismissal was reversed, and on remand, the lower court is mandated to permit the amendment.
Wednesday, August 22, 2012
The Third District Court of Appeal reversed today in Murphy v. Evans, a case in which the former husband’s counsel was repeatedly held in contempt and required to deposit fines into the court registry, but then granted relief from those orders and refunded his monies at a non-evidentiary hearing in response to an ex parte motion. The Third District Court reviewed the attorney’s conduct and found that granting him relief from the fines was an abuse of the court’s discretion.
The Fourth District Court of Appeal reversed the lower tribunal’s finding of contempt today in Holtz v. Holtz. First and foremost, the Court found error in the lower court’s use of its contempt power to enforce an equitable distribution payment. Second, as to the finding of contempt related to payment of support, the lower court made no finding that the alleged contemnor had the present ability to pay, and had willfully refused to comply with the prior order of the court. Each of these required reversal.
Tuesday, August 21, 2012
In its ruling today in Martin v. Schmidth, the First District Court of Appeal affirmed the lower court’s finding of laches preventing the Former Wife from being held in contempt. The Court affirmed in that the Former Husband had not preserved his arguments against the existence of a laches defense at the hearing below or in a motion for rehearing.
Wednesday, August 15, 2012
The First District Court of Appeal ruled today in Wiesenfeld v. Wiesenfeld, a case in which the Former Husband sought termination of alimony based on the Former Wife’s inheritance of sufficient monies to become self-supporting. The First District affirmed the lower court’s granting of that petition, finding that the Former Husband had met his burden under Pimm. However, as the lower court ordered retroactive termination of alimony payments received prior to the Former Wife achieving the ability to support herself, the First DCA reversed in that part only.
The Fourth District ruled today in Cook v. Cook, reversing the lower court’s denial of modification of alimony sought by the Former Wife. The lower court ruled that the parties’ Marital Settlement Agreement provided a modification of alimony unless custody was first modified. The Fourth District found that the relevant clause in fact guaranteed a modification in the event of a custody change, but did not affect a modification in the absence of one. As such, the matter was remanded.
The Fourth District Court of Appeal affirmed today in Nousari v. Nousari, but first discussed the alimony award under appeal. The Court noted that the marriage was moderate in term, the parties’ were young in age and in good health, and each party left the marriage with over a million dollars in assets. While the Court awarded nine years of durational alimony, the Wife argued that the alimony should have been permanent in nature. Citing Donoff v. Donoff, the Fourth District found that the lower court had acted correctly in not attributing the standard of living superfactor status, and found that all appropriate determinations were made in the lack of clear and convincing evidence requiring permanent alimony in a moderate term marriage.
The Fourth District Court of Appeal ruled today in Reilly v. Reilly, in so doing reversing the lower court’s finding that the Former Wife bore sole liability for roofing expenses and the court’s ruling on fees. Specifically as to fees, the Court found that, the Former Wife having eventually prevailed on all issues, she was entitled to recover her fees and remanded for that result.
The Fourth District Court ruled today in Maher v. Maher, in so doing affirming the lower court’s denial of a more substantial modification of child support as requested. The trial court relied on the fact that the child support was set by a marital settlement agreement executed by the parties, resulting in a higher than normal burden for the party seeking downward modification, and on the finding that the Former Husband’s reduction in income was neither permanent nor involuntary.
Wednesday, August 8, 2012
Among other rulings in the opinion issued today by the Fourth District Court of Appeal in Walters v. Walters, that Court reversed the lower tribunal’s finding that the Former Husband had divested assets by purchasing vintage automobiles for his business. As the Former Husband’s intent was to provide for income to pay support, the finding was in error. In addition, the Fourth District affirmed the lower court’s denial of retroactive modification of alimony in light of the finding that the Former Husband had been able to pay the alimony during the period of time in question. The Court also rejected the Former Husband’s claim that more than 60% of his income had been awarded in support, as they counted additional sources of income the Former Husband did not. The lower court was reversed, however, for failing to consider the Former Wife’s current needs in its consideration of the modification petition.
Friday, August 3, 2012
The First District Court of Appeal ruled today in Williams v. Williams, a case in which the former husband appealed the lower tribunal’s denial of his petition for modification of alimony in part. As there was no transcript and little other record, the First District Court affirmed the alimony ruling, but the $5,000.00 fee award was reversed for a lack of findings as to reasonable amount and hourly rate and the like.
Wednesday, July 25, 2012
The Third District Court of Appeal ruled today in Ross v. Ross, a case in which the lower tribunal denied a motion for rehearing filed by the former husband for being untimely. The former husband appealed, and the lower court was reversed because the former husband, who is incarcerated, did in fact certify that he placed the document in the hands of prison officials in a timely fashion, which satisfies F.R.C.P. 1.530(g). As such, the case was remanded for the lower court to consider the timely Motion for Rehearing.
The Fourth District Court of Appeal ruled today in Cunha v. Cunha, a case in which the lower court denied the former husband’s request to vacate a judgment based on an underlying debt which had been paid. The former wife argued that, as the debt was paid for less than full value, the former husband had not satisfied the parties’ MSA by being responsible for that debt. The lower court agreed, but the Fourth District found that the debt was satisfied, and the judgment based upon it should have been vacated.
Friday, July 13, 2012
The Florida Supreme Court issued a ruling yesterday which amended several of the Florida Family Law Forms to anticipate the October effective date of Section 784.0485, which creates a cause of action for an injunction. The full text is available here.
The Florida Supreme Court issued an opinion yesterday, the full text of which is here, and which amended virtually all rules of procedure previously dealing with the computation of time, and replacing them with one omnibus rule. This includes replacing Rule 12.090:
RULE 2.514. COMPUTING AND EXTENDING TIME
(a) Computing Time. The following rules apply in computing time periods specified in any rule of procedure, local rule, court order, or statute that does not specify a method of computing time.
(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time
(A) exclude the day of the event that triggers the period;
(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and
(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, or falls within any period of time extended through an order of the chief justice under Florida Rule of Judicial Administration 2.205(a)(2)(B)(iv), the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday and does not fall within any period of time extended through an order of the chief justice.
(2) Period Stated in Hours. When the period is stated in hours
(A) begin counting immediately on the occurrence of the event that triggers the period;
(B) count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and
(C) if the period would end on a Saturday, Sunday, or legal holiday, or during any period of time extended through an order of the chief justice under Florida Rule of Judicial Administration 2.205(a)(2)(B)(iv), the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday and does not fall within any period of time extended through an order of the chief justice.
(3) Period Stated in Days Less Than Seven Days. When the period stated in days is less than 7 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation.
(4) ―Last Day Defined. Unless a different time is set by a statute, local rule, or court order, the last day ends
(A) for electronic filing or for service by any means, at midnight; and
(B) for filing by other means, when the clerk’s office is scheduled to close.
(5) ―Next Day Defined. The “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.
(6) ―Legal Holiday Defined. “Legal holiday” means
(A) the day set aside by section 110.117, Florida Statutes, for observing New Year’s Day, Martin Luther King, Jr.’s Birthday, Memorial Day, Independence Day, Labor Day, Veterans’ Day, Thanksgiving Day, the Friday after Thanksgiving Day, or Christmas Day, and
(B) any day observed as a holiday by the clerk’s office or as designated by the chief judge.
(b) Additional Time after Service by Mail or E-mail. When a party may or must act within a specified time after service and service is made by mail or e-mail, 5 days are added after the period that would otherwise expire under subdivision (a).
Wednesday, July 11, 2012
The First District Court of Appeal reversed on a single issue today in Blossman v. Blossman, the valuation of the parties’ voting and non-voting stock in the Abita corporation. Evidently each party’s expert used a different method of valuing stock, and the court below used a figure that was an average of the two. As this averaging of multiple valuation methods is not permitted, reversal was required.
The Fourth District Court of Appeal reversed today in Koski v. Koski, a case in which the lower tribunal denied the Former Husband’s petition seeking modification of his alimony obligation. While the lower court found a substantial increase in the Former Wife’s income, no findings were made as to whether the increase was contemplated, or whether it was permanent. The Fourth District noted that the change appeared to be both permanent in nature and outside the circumstances contemplated at time of Final Judgment. Given this, the Court found error in the lack of findings made by the lower court showing that a review of the statutory factors did not support a modification, and remand was required for these findings to be made.
The Fourth District Court of Appeal ruled today in Tullier v. Tullier, affirming the lower court’s modification of timesharing for the Former Husband from supervised to unsupervised. The Former Wife appealed on the basis that there was not competent, substantial evidence supporting the modification. The Court disagreed, on the basis that two experts testified that the Former Husband was addressing his past issues, and other testimony was offered. Judge Warner dissented on the ground that the showing was not sufficient to meet the extraordinary burden standard.
Friday, July 6, 2012
E-Discovery is now on the horizon in Florida, with yesterday’s Supreme Court ruling adopting amendments to seven civil procedural rules. The full text of the ruling can be found here. In a nutshell, the ruling inserts the concept of electronic discovery into the Florida Rules by:
- Amending Florida Rule of Civil Procedure 1.200 (Pretrial Procedure) to allow the trial court to consider various e-discovery issues during a pretrial conference, and Rule 1.201 to require the parties to address the possibility of an electronic information preservation and production stipulation;
- Amending Rule 1.280, Rules of Civil Procedure, to expressly authorize discovery of electronically stored information, with some specific limitations in subdivision (d) of that rule;
- Amending Rule 1.340, Florida Rules of Civil Procedure, and 1.350 as well, to permit a demand for electronically stored information in its ordinary or other reasonably usable form;
- Amending Rule 1.380 to prohibit sanctions against a party for failing to provide lost discovery which was lost due to routine operation;
- Amending Rule 1.410 (Subpoena)to permit a subpoena for electronically stored information and an objection to same.
Of additional note seems to be the frequent use of the acronym “ESI” for “electronically stored information.” I have a feeling this one will be around for a while.
The amendments take hold on September 1, 2012 at 12:02 a.m., one minute after the effective date of the new e-service rules.
Friday, June 29, 2012
The Florida Supreme Court adopted a new form, Florida Family Law Form 12.996(d), called a Florida Addendum to Income Withholding, meant to be filed along with IWO orders, form OMB 0970-0154. Comments are accepted for sixty days.
Wednesday, June 27, 2012
The Fourth District Court of Appeal dismissed the appeal today in Jones v. Jones, in that the appeal was directed to an order denying exceptions, which is a non-final, non-appealable order. The Court cited Murison v. Coral Park Props., Inc., 64 So.3d 1288, 1289 (Fla. 4th DCA 2011) in support.
The Fourth District Court of Appeal ruled today in Hollingsworth v. Hollingsworth, in so doing affirming without comment most of the issues raised on appeal, but reversing as to the amount of retroactive alimony awarded to the wife. The trial court found that the Appellant should receive a credit for funds already paid against the alimony due, but failed to award that credit in its final calculation, and was reversed for that reason alone.
The Fourth District Court of Appeal ruled today in Goldstein v. Goldstein, a case in which the lower court denied fees to the wife, as well as attributing to her joint marital funds used by her during the divorce for living expenses without any finding of misconduct. The Court found error first with the lower tribunal’s failure to make findings as to need and ability to pay attorneys’ fees, but found that even if those findings had been made it would have been error to deny the wife her fees and costs. In addition, the lack of any finding of misconduct required reversal of the lower court’s distribution of depleted assets used for support to the wife.
This ruling by the Florida Supreme Court last week confirms the adoption of the new Florida Rule of Judicial Administration 2.516 (Service of Pleadings and Papers). That rule requires in part that all documents required or permitted to be served on another party must be served by e-mail. A lawyer upon appearing in a proceeding must now designate a primary email address, and up to two secondary addresses, for receiving service, after which service must be made by email. A lawyer or party may request by motion to be excused from this requirement, and applications for subpoenas or documents served personally are excused. The changes become effective September 1, 2012 at 12:01 A.M..
The full text of the new rule is as follows:
RULE 2.516 SERVICE OF PLEADINGS AND DOCUMENTS
(a) Service; When Required. Unless the court otherwise orders, or a statute or supreme court administrative order specifies a different means of service, every pleading subsequent to the initial pleading and every other document filed in any court proceeding, except applications for witness subpoenas and documents served by formal notice or required to be served in the manner provided for service of formal notice, must be served in accordance with this rule on each party. No service need be made on parties against whom a default has been entered, except that pleadings asserting new or additional claims against them must be served in the manner provided for service of summons.
(b) Service; How Made. When service is required or permitted to be made upon a party represented by an attorney, service must be made upon the attorney unless service upon the party is ordered by the court.
(1) Service by Electronic Mail (“e-mail”). All documents required or permitted to be served on another party must be served by e-mail, unless this rule otherwise provides. When, in addition to service by e-mail, the sender also utilizes another means of service provided for in subdivision (b)(2), any differing time limits and other provisions applicable to that other means of service control.
(A) Service on Attorneys. Upon appearing in a proceeding, an attorney must serve a designation of a primary e-mail address and may designate no more than two secondary e-mail addresses. Thereafter, service must be directed to all designated e-mail addresses in that proceeding. Every document filed by an attorney thereafter must include the primary e-mail address of that attorney and any secondary e-mail addresses. If an attorney does not designate any e-mail address for service, documents may be served on that attorney at the e-mail address on record with The Florida Bar.
(B) Exception to E-mail Service on Attorneys. Service by an attorney on another attorney must be made by e-mail unless excused by the court. Upon motion by an attorney demonstrating that the attorney has no e-mail account and lacks access to the Internet at the attorney’s office, the court may excuse the attorney from the requirements of e-mail service. Service on and by an attorney excused by the court from e-mail service must be by the means provided in subdivision (b)(2) of this rule.
(C) Service on and by Parties Not Represented by an Attorney. Any party not represented by an attorney may serve a designation of a primary e-mail address and also may designate no more than two secondary e-mail addresses to which service must be directed in that proceeding by the means provided in subdivision (b)(1) of this rule. If a party not represented by an attorney does not designate an e-mail address for service in a proceeding, service on and by that party must be by the means provided in subdivision (b)(2) of this rule.
(D) Time of Service. Service by e-mail is complete when it is sent.
(i) An e-mail is deemed served on the date it is sent.
(ii) If the sender learns that the e-mail did not reach the address of the person to be served, the sender must immediately send another copy by e-mail, or by a means authorized by subdivision (b)(2) of this rule.
(iii) E-mail service is treated as service by mail for the computation of time.
(E) Format of E-mail for Service. Service of a document by e-mail is made by attaching a copy of the document in PDF format to an e-mail sent to all addresses designated by the attorney or party.
(i) All documents served by e-mail must be attached to an e-mail message containing a subject line beginning with the words “SERVICE OF COURT DOCUMENT” in all capital letters, followed by the case number of the proceeding in which the documents are being served.
(ii) The body of the e-mail must identify the court in which the proceeding is pending, the case number, the name of the initial party on each side, the title of each document served with that e-mail, and the sender’s name and telephone number.
(iii) Any document served by e-mail may be signed by the “/s/” format, as long as the filed original is signed in accordance with the applicable rule of procedure.
(iv) Any e-mail which, together with its attached documents, exceeds five megabytes (5MB) in size, must be divided and sent as separate e-mails, no one of which may exceed 5MB in size and each of which must be sequentially numbered in the subject line.
(2) Service by Other Means. In addition to, and not in lieu of, service by e-mail, service may also be made upon attorneys by any of the means specified in this subdivision (b)(2). Service on and by all parties who are not represented by an attorney and who do not designate an e-mail address, and on and by all attorneys excused from e-mail service, must be made by delivering a copy of the document or by mailing it to the party or attorney at their last known address or, if no address is known, by leaving it with the clerk of the court. Service by mail is complete upon mailing. Delivery of a copy within this rule is complete upon:
(A) handing it to the attorney or to the party,
(B) leaving it at the attorney’s or party’s office with a clerk or other person in charge thereof,
(C) if there is no one in charge, leaving it in a conspicuous place therein,
(D) if the office is closed or the person to be served has no office, leaving it at the person’s usual place of abode with some person of his or her family above 15 years of age and informing such person of the contents, or
(E) transmitting it by facsimile to the attorney’s or party’s office with a cover sheet containing the sender’s name, firm, address, telephone number, and facsimile number, and the number of pages transmitted. When service is made by facsimile, a copy must also be served by any other method permitted by this rule. Facsimile service occurs when transmission is complete.
(F) Service by delivery after 5:00 p.m. must be deemed to have been made by mailing on the date of delivery.
(c) Service; Numerous Defendants. In actions when the parties are unusually numerous, the court may regulate the service contemplated by these rules on motion or on its own initiative in such manner as may be found to be just and reasonable.
(d) Filing. All original documents must be filed with the court either before service or immediately thereafter, unless otherwise provided for by general law or other rules. If the original of any bond or other document is not placed in the court file, a certified copy must be so placed by the clerk.
(e) Filing Defined. The filing of documents with the court as required by these rules must be made by filing them with the clerk, except that the judge may permit documents to be filed with the judge, in which event the judge must note the filing date before him or her on the documents and transmit them to the clerk. The date of filing is that shown on the face of the document by the judge’s notation or the clerk’s time stamp, whichever is earlier.
(f) Certificate of Service. When any attorney certifies in substance:
”I certify that a copy hereof has been furnished to (here insert name or names and addresses used for service) by (e-mail) (delivery) (mail) (fax) on ..... (date) …..
________________________ Attorney” the certificate is taken as prima facie proof of such service in compliance with this rule.
(g) Service by Clerk. Service of notices and other documents required to be made by the clerk must also be done as provided in subdivision (b).
(h) Service of Orders.
(1) A copy of all orders or judgments must be transmitted by the court or under its direction to all parties at the time of entry of the order or judgment. No service need be made on parties against whom a default has been entered except orders setting an action for trial and final judgments that must be prepared and served as provided in subdivision (h)(2). The court may require that orders or judgments be prepared by a party, may require the party to furnish the court with stamped, addressed envelopes for service of the order or judgment, and may require that proposed orders and judgments be furnished to all parties before entry by the court of the order or judgment. The court may serve any order or judgment by e-mail to all attorneys who have not been excused from e-mail service and to all parties not represented by an attorney who have designated an e-mail address for service.
(2) When a final judgment is entered against a party in default, the court must mail a conformed copy of it to the party. The party in whose favor the judgment is entered must furnish the court with a copy of the judgment, unless it is prepared by the court, with the address of the party to be served. If the address is unknown, the copy need not be furnished.
(3) This subdivision is directory and a failure to comply with it does not affect the order or judgment, its finality, or any proceedings arising in the action.
Friday, June 22, 2012
The Fourth District Court ruled this week in Culbertson v. Culbertson, a difficult case focused on the lower court’s decision to permit timesharing to the Husband without the restrictions sought by the Wife as a result of the child’s medical needs. The Fourth DCA affirmed on the basis that there was sufficient evidence supporting the finding that the Husband was prepared for any medical emergency and aware of the child’s needs, but with a dissent from Judge Warner disputing the existence of that evidence.
The Fourth District Court of Appeal ruled this week in Simon v. Simon, reversing the lower tribunal’s order which disposed of the parties’ collection of art. The Husband appealed on the basis that the parties’ premarital agreement provided for a different distribution, and the Fourth District agreed that the clear and unambiguous language required a different result than the one ordered.
Friday, June 8, 2012
The Fifth District Court of Appeal rejected a final injunction today in Williams v. Williams. The trial court made no finding of domestic violence, and the petitioner presented no evidence that could support a finding that violence had or was likely to occur. As such, the injunction was reversed.
Thursday, June 7, 2012
The Florida Supreme Court issued an opinion regarding the Florida Family Law Forms today, the full text of which is available here. In that ruling, the Court reports the results of an internal review which determined the need to update the forms for sexual, dating, domestic, and repeat violence in order to (1) conform with the changes to Rule of Judicial Administration 2.540 regarding notice required under the Americans with Disabilities Act (2) remove unnecessary requests for personal information such as the place of marriage, place of birth, or gender of a minor child, (3) add language to the forms giving specific notice to those who are served with temporary injunctions warning them that failure to appear at the final hearing may result in a permanent injunction, (4) add language to the petitions requesting a temporary injunction which specifically does, in fact, request a temporary injunction, (5) updates language regarding health and dental insurance to conform with current statutes, and (6) adds each judicial circuit’s depository as an acceptable entity to accept payments. The Court released the forms immediately ready to use, but will take comments for sixty days.
The Third District Court of Appeal reversed yesterday in De Campos v. Ferrara, a case in which the lower court denied fees to the former husband on an enforcement action after finding that the action was truly for declaratory relief, like the action in Flanders v. Flanders, 516 So.2d 1090 (Fla. 5th DCA 1987), no enforcement fees were appropriate. The Third District reversed on the grounds that the action was, in fact, in the nature of an enforcement claim, that, as a result, F.S. 61.16 (2011), and not the parties’ agreement alone, applied to the fee request, and that a hearing to determine entitlement under that authority was required.
Wednesday, June 6, 2012
The Fourth District Court of Appeal reversed today in Essex v. Davis, a case in which the parties’ child was ordered to be returned to Palm Beach County for a hearing to determine whether the mother had relocated to Louisiana without leave pursuant to F.S. 61.13001 (2011). The District Court reversed on the basis that the record was not clear that the relocation statute even applied, in that the Mother argued that she was already living in Louisiana at the time of the court’s order establishing timesharing. The Fourth District in reversing required an evidentiary hearing to determine whether or not the statute applies.
While the Fourth District Court of Appeal found evidence supporting the imputation of income to the Appellant in Piedra v. Piedra today, it reversed as to the amount imputed. This was because the lower court imputed the former husband not his former earnings at a marital business, but rather the gross profit of the business without regard to expenses or deductions, and without regard to salary paid to the former wife from the same business. The lower court was also reversed for failing to apportion the cost of the children’s health insurance between the parties.
The Fourth District Court reversed the amount of alimony awarded in Green v. Green today, on the basis that the magistrate below should have imputed income to the former wife, and should have considered the net effect of distributing the parties’ credit card and other debt to one party alone.
The Fourth District Court of Appeal reversed the lower court’s Final Judgment in part today in the case of Vitro v. Vitro, first finding error in the lower court’s apparent award of alimony prior to the date of filing of the divorce without any finding justifying such an award, and second for allocating the entirety of the parties’ credit card debt to the Husband on the basis of an agreement not present in the record. The Fourth District also reversed in that the lower court failed to identify the party responsible for remaining debt to a pre-paid college fund, car leases, and other expenses.
The Fourth District Court of Appeal today reversed a final injunction in Gayoso v. Gayoso, a case in which the Appellant had filed a motion after entry of a final judgment of injunction claiming ineffective service and supported with two affidavits. The lower court denied relief from the judgment without holding an evidentiary hearing. The Fourth District, citing Southeastern Termite & Pest v. Ones, 792 So. 2d 1266 (Fla. 4th DCA 2001), ruled that the Appellant had been entitled to an evidentiary hearing and a chance to prove by clear and convincing evidence that service was in fact ineffective.
Thursday, May 31, 2012
The Third District Court of Appeal ruled yesterday in Durham v. Butler, a case in which the lower court exercised its jurisdiction under the UCCJEA to modify another state’s custody decree. While the Third District found that Florida did, in fact, have jurisdiction to modify the foreign decree, it reversed the lower tribunal on the basis that this jurisdiction should not have been exercised. At the time of the application for modification, there was a related action pending in the foreign tribunal, requiring reversal pursuant to Florida Statute section 61.519(1) (2011).
The Second District Court of Appeal reversed yesterday in M.A.C. v. M.D.H. as to the lower court’s order finding that North Carolina, and not Florida, was the home state of the child in that paternity action. However, it was undisputed that, while North Carolina may have been the home state as of the date of the hearing, Florida was the home state for six consecutive months prior to the date of filing. As the lower court applied the former date rather than the latter, the Second District reversed its ruling.
The Fourth District Court of Appeal reversed in part yesterday in Gilbert v. Katz-Gilbert, a case in which the lower tribunal attributed over $200,000.00 in liabilities to one party and less than $2,500.00 to the other. The lower court did not allocate the assets to make up for the unequal distribution of liabilities, or make findings justifying an unequal distribution as required by statute. On remand the court was instructed to either reallocate the debt or else make findings justifying the unequal distribution.
Friday, May 25, 2012
The Florida Supreme Court issued a 201 page opinion amending the approved family law forms yesterday, the full text of which is located here. Virtually all of the forms have been updated to conform with recent changes in the law, but the changes appear to be very minor.
The Fifth District Court of Appeal issued an opinion today in Schwieterman v. Schwieterman, first spending time to address the appropriate standard of review as to the lower tribunal’s adoption of a parenting plan. The Former Wife contended that, as the lower court mistakenly believed there was a presumption in favor of equal timesharing, the ruling constituted an error in the application of law, requiring a de novo review. The Former Husband, on the other hand, argued that abuse of discretion was the more appropriate standard. The District Court found no evidence that the lower court had applied a presumption in favor of equal timesharing when it granted that relief, and as such found that a de novo review would be inappropriate. In reviewing the judgment only under the abuse of discretion standard, the Fifth District affirmed the timesharing provisions. However, as to provisions in the parenting plan which essentially appointed the Former Husband’s parents as decision-makers in the event of an emergency or deadlock, the Fifth District agreed with the Former Wife that these provisions interfered with her parental rights, and that in the event of a deadlock the dispute must be presented to the trial court. The Fifth District also found error in a requirement that the Former Wife provide notification of medical appointments not to the parents of the Former Husband. The Court reversed as to these issues alone.
Thursday, May 24, 2012
The First District Court of Appeal reversed today in Vanetten v. Vanetten, a case in which the lower tribunal only valued the parties’ liabilities and one of their assets due to the limited evidence provided for that purpose. The lower court divided the asset equally, and the liabilities unequally, without any finding supporting an unequal distribution. This mandated reversal.
The Second District Court of Appeal ruled yesterday in Payne v. Payne, a case in which the parties sought dissolution of a seventeen year marriage, and the Husband appealed the denial of his request for permanent alimony. The Court found that, while the presumption in favor of permanent alimony was certainly invoked, this was insufficient without a showing of need on the Husband’s part beyond his own capacity to earn. The Court did, however, rely on the parties’ disparity in earning power and assets to reverse the denial of attorneys’ fees to the Husband.
Monday, May 21, 2012
The First District Court of Appeal ruled today in F.R. v. Adoption of Baby Boy Born November 2, 2010, a case in which the lower tribunal had dismissed the birth mother’s challenge to an adoption with prejudice on the grounds that she failed to show fraud, lacked any support for her allegations of duress, and that she lacked any allegation that her consent was involuntary. In reversing, the First District found that the mother’s allegations were properly before the Court, and that there had been sufficient showing of fraud and misrepresentation by the mother, and that an evidentiary hearing was required.
Friday, May 18, 2012
The First District Court reversed today in Gilbert v. Cole, a case in which the parties’ divorce decree allocated support for each child, but their mediated modification agreement did not. Because of this, the Appellee argued, she was entitled to seek judgment as to arrearages accruing after the older child’s emancipation but prior to the filing of a petition for modification. The lower court agreed, and awarded arrearages through the date of filing of the petition for modification. The First District, however, found first that the parties’ mediated agreement changed only the amount of support to be paid, and that the final judgment controlled as to all other support issues. Next, the First District found that the final judgment created an allocated support award, 50% to each child. In addition, the First District pointed out that if there was a miscalculation in the arrearages, the obligor would have been entitled to a retroactive modification prior to the filing of the petition. The case was as such remanded for the lower court to determine the correct arrearages based on these findings.
The First District Court of Appeal reversed today in Ramirez v. Teutsch, in so doing finding that the lower tribunal erred when it summarily denied a motion to dissolve a domestic violence injunction on the grounds of changed circumstances. The First District found that on a showing of changed circumstances and a showing that the scenario giving rise to the injunction no longer exists, modification may be warranted, and as such an evidentiary hearing was required.
Wednesday, May 16, 2012
The Second District Court of Appeal ruled today in S.T. v. Department of Children & Family Services, a case in which the finding of dependency as to the father was upheld without opinion in December of last year, and in which the Court now reviewed the finding that the parties’ children were dependent as to their mother. The lower tribunal had made this finding primarily on the basis that the mother was in denial as to the father’s drinking and resulting endangerment of the children. The Second District, however, found that there was no competent evidence to reflect that the Mother had knowledge of any such endangerment, and that her motion for judgment of dismissal should have been granted, and the dependency finding not made. Judge Altenbernd, specially concurring, made clear that he was not suggesting the prior affirmation of the finding of dependency to the father was in any way incorrect, and made the point that the lower tribunal would still require the mother to take certain actions via the case plan, and that if she did not comply that court still had recourse.
Tuesday, May 15, 2012
The First District Court reversed today in Giovanini v. Giovanini, a case in which the lower tribunal issued an order granting temporary appellate attorneys’ fees based on the parties’ respective memoranda, without a hearing. The First District Court found that the trial court should not have determined the amount of the attorneys’ fee award when a previous order made clear that determination would be made at a hearing, and that the court was required, absent a stipulation by the parties, to hold a hearing to determine the reasonableness and necessity of the fee.
Wednesday, May 9, 2012
The Second District Court of Appeal today reversed in Mayo v. Mayo, in so doing finding error in the lower court’s ruling which modified timesharing while professing that the best interests of the child could not be reached. Without reviewing the best interests of the minor child, the modification was improper, according to the Second District.
The Fourth District Court of Appeal affirmed on all issues today in Elbaum v. Elbaum, reversing only as to the issue of life insurance ordered as security for alimony, in that the requisite findings for such an award were not made. The Court also addressed the issue of alimony, argued by the Former Husband to be excessive, only in order to point out an apparent misunderstanding by the Former Husband of his alimony obligation.
The Fourth District Court of Appeal affirmed today in Randazzo v. Randazzo, in so doing finding that there was no error apparent on the face of an order granting a child support credit to the Former Husband as a result of overpayment, despite the trial court’s use of a different figure for the Former Husband’s income than the Magistrate found to be appropriate. Largely the ruling had to be affirmed in that there was no transcript provided to the Appellate Court.
Tuesday, May 8, 2012
The First District Court of Appeal today found the appeals filed in Garces v. Legarda to be moot. In short, the Appellant moved to Florida from Ecuador with the parties’ children, allegedly under false pretenses and without leave to do so. The Appellee filed petitions for the return of the children, and there was no request for affirmative relief filed by the Appellant in Florida. The Court ordered the children returned to the Appellee, who returned to Ecuador and dismissed his pending petition, leaving the Appellant with no legally cognizable interest remaining in the outcome of the appeal, as even reversal would grant her no relief.
Friday, May 4, 2012
The First District Court of Appeal today affirmed the bulk of the lower court’s ruling in Franks v. Franks, but found error in the lower tribunal’s award of bridge-the-gap alimony for a three year period, a year longer than the statute permits.
The Fifth District Court of Appeal reversed today in Tucker v. Liebknecht, a case in which the lower court issued an injunction preventing a move after finding it exceeded the relocation restriction in the parties’ agreement. That agreement didn’t specify a method of measuring the distance set, however, and the Fifth District found that the plain meaning thus resulted in a calculation not of driving distance, but radius in miles, contrary to the method used by the lower court.
Wednesday, May 2, 2012
The Third District Court of Appeal reversed today in Guzzardi v. Guzzardi, a case in which relocation was permitted post-judgment. While the Court found no reversible error in the Court’s use of Florida Statute 61.13001 (2011) despite the existence of an order specifically governing future relocation, it did find error in the fact that there was no evidence permitting a finding that a substantial change in circumstances had occurred.
The Third District Court of Appeal reversed today in Silverman v. Silverman, a case in which a 22 year old divorce decree was modified to increase the alimony originally awarded on the basis of a cost of living increase. The Court reversed on the basis that, while an increase in the cost of living may be relevant to the amount of a modification, it does not prove that the modification is warranted in the first place.
The First District Court reversed yesterday in D.O.R. ex rel Thorman v. Holley, a case in which the lower tribunal’s findings of laches and estoppel excused the Father’s obligation to pay past-due child support. While there was clearly a long period of delay involved, the District Court found that the lower tribunal applied laches and estoppel without sufficient evidence and erred in vacating a final order establishing arrearages due to a violation of due process. In short, the Court found that there was insufficient evidence of prejudice to establish laches or estoppel, and that, in essence, as there was no evidence of prejudice there was no basis to remedy a violation of due process by relieving a parent of the obligation to pay support.
The First District Court of Appeal reversed yesterday in Hentze v. Denys, first affirming the lower court’s departure from its interim orders on the grounds that the Former Husband’s argument invoking the law of the case doctrine was misplaced, in that there was no appeal to have set the law of the case, and the lower court’s failure to grant interest on a judgment awarded, in that the issue was not raised in a motion for rehearing. Merit was found, however, in the Former Husband’s arguments that the Court was required to impute income to the Former Wife, who voluntarily resigned her position, and in apparently granting child support beyond the age of nineteen.
Friday, April 27, 2012
The Fifth District Court of Appeal reversed today in Cole v. Cole, a relocation case in which the minor child’s stepmother was permitted to testify via telephone over the objection of the Former Wife. Given the very damaging nature of the testimony, the Fifth District was unable to consider the error harmless, and was forced to reverse the ruling in its entirety.
Wednesday, April 25, 2012
The Fourth District Court of Appeal ruled today in two consolidated appeals in Riera v. Riera, a case in which the Former Husband was held in contempt below and ordered incarcerated unless a purge was paid for non-payment of college tuition. The District Court found that, because the Former Husband claimed it was his understanding that the child would attend a Florida public university, there was a latent ambiguity in the parties’ Marital Settlement Agreement. In other words, while the words of the agreement were clear, they failed to address the obligations of the parties in certain situations. The Court also found error in the lower court’s issuing a contempt order for a contractual obligation to pay college expenses, and for failing to make a finding of an affirmative ability to pay the purge amount. Senior Judge Schwartz concurred in the Court’s determination that contempt is not an available sanction for non-payment of contractual college expenses, but not with the Court’s finding of a latent ambiguity. Senior Judge Schwartz found the contract unambiguous and felt it covered all circumstances.
Thursday, April 19, 2012
The Fourth District Court reversed yesterday in Galstyan v. Galstyan, in so doing finding error with the lower tribunal’s award of alimony without findings regarding the Husband’s income, as well as the adoption of a repayment plan without findings as to the Husband’s income, the award of life insurance and a bond both to secure the alimony awarded, and the failure of the Court to make specific findings as to the impact of providing life insurance on the Husband’s finances and the appropriate tailoring of the life insurance requirement.
Monday, April 9, 2012
As was the case twice last week in D.O.R. ex rel Gray v. Hunt and D.O.R. ex rel Whittaker v. Veach, as well as the month before in D.O.R. ex rel Mash v. Ingram, and as seems to be becoming a regular occurrence, the First District Court again reversed an administrative support order today for permitting deviation for an informal timesharing agreement rather than an approved parenting plan. This time the reversal came in D.O.R. ex rel Mayweather v. Mayweather.
Wednesday, April 4, 2012
The Fourth District Court of Appeal reversed today in Ramirez v. Ramirez, on the grounds that the contempt and incarceration order entered below lacked the required findings that the appellant had the present ability to pay the support, that he willfully failed to comply with the support order, and a separate affirmative finding that the contemnor could pay the purge, along with factual findings supporting each such finding. On remand, the Fourth District also ordered that a new evidentiary hearing be held on the ground that the appellant was prevented from presenting rebuttal evidence prior to the entry of the contempt order.
The Fourth District Court of Appeal reversed today in Hartman v. Hartman that it was error for the lower court to require the former husband to pay only half of an agreed upon amount for college tuition, on the grounds that there was no motion for modification pending, and the court as such lacked jurisdiction to modify the final judgment.
The Fourth District Court of Appeal reversed today in J.T.J. v. N.H. and E.R., a case in which the lower tribunal had dismissed a petition to establish paternity on the grounds that the minor child was born while the mother was married to another man, thus raising a presumption of legitimacy. The Appellant, the putative father of the minor child, argued that he was entitled to an evidentiary hearing prior to dismissal for such a reason. The Fourth District Court agreed, holding as they did in the recent D.O.R. ex rel Iglesias case that an evidentiary hearing was required as to the best interests of the minor child prior to any such dismissal.
Wednesday, March 28, 2012
In today’s opinion in Munroe v. Olibrice, the Fourth District Court of Appeal reversed an order establishing a time-sharing schedule for the parties’ minor children on the grounds that the time-sharing schedule failed to address parental responsibility and did not create a parenting plan. By not establishing a parenting plan establishing how the parents make decisions in addition to adopting a time-sharing schedule, error was committed.
The Second District Court posted its ruling in Bushong v. Peel today, and granted a petition for writ of certiorari permitting the Husband to obtain documents related to corporations that he contends form part of the marital estate. The lower tribunal granted three motions for protective orders preventing the release of the documents as a result of a finding that the Husband had not established any ownership interest. The Second District, however, held that the Husband showed sufficient interest in the companies to warrant quashing the protective orders, and in a footnote stated that “It may be that Mr. Bushong had failed to establish that he had any ownership interest in the Companies. But that interest would be a "legal" ownership interest only. Mr. Bushong has shown that he had a substantial equitable interest in them as marital assets because he started the Companies, operated them in conjunction with Ms. Peel until his summary dismissal, and was a major factor in their success. We do not detail here the many individual documents that are subject to the protective orders because Mr. Bushong has shown entitlement to all of them. His interest is substantial enough and his discovery requests were not too overbroad or burdensome.” Bushong v. Peel, 2D11-4795 (Fla. 2d DCA 2012).
In Kumar v. Kumar, the Second District released an opinion today which reversed the equitable distribution schedule for several errors. First, the lower tribunal had wrongly considered the Former Wife’s jewelry to be non-marital. Second, the lower court erroneously valued a certificate of deposit awarded to the Husband as of the date of filing, a value $40,000.00 lower than the value as of the date of trial. And, third, the court failed to distribute the contents of the former marital home. While the Former Wife agreed to the court’s choice, instead, to order mediation of those items, the Former Husband did not, and, as the Second District quoted, the “parties are entitled to a final distribution…at time of dissolution.” Kumar v. Kumar, 2D10-5546 (Fla. 2d DCA 2012), citing Collinsworth v. Collinsworth, 624 So.2d 287, 290 (Fla. 1st DCA 1993).
Saturday, March 17, 2012
The Fifth District Court reversed a post-judgment fee award Friday in Colado v. Caryi, a case in which the lower court had awarded the Former Husband his fees from the Former Wife based on vexatious litigation on her part. The Fifth District Court, after an examination of Rosen v. Rosen, 696 So.2d 697 (Fla. 1997) and its progeny, found that there was no evidence of vexatious behavior on the Former Wife’s part, and reversed the award.
Wednesday, March 14, 2012
The Second District Court of Appeal reversed today in Morrell v. Morrell, a case in which modification of alimony was denied to the payor in part on the basis of his substantial relationship. The Second District reversed in part on the basis that the payee is the only one whose supportive relationship is relevant for alimony modification purposes. Because it was unclear what weight this particular issue was given by the lower court, the entire denial of modification was reversed for reconsideration without consideration of the Former Husband’s relationship.
As it did recently in D.O.R. ex rel Mash v. Ingram, and last year in D.O.R. ex rel Sherman v. Daly, the First District Court of Appeal again reversed today in D.O.R. ex rel Taylor v. Aluscar, yet another case in which a deviation from the guidelines was based on an informal timesharing arrangement and not a formal parenting plan.
The First District Court of Appeal reversed today in Rucker v. Rucker, a case in which the lower court awarded 18 months of bridge-the-gap alimony after a twelve and a half year marriage. As the evidence appeared to suggest that the lower court had miscalculated the parties’ incomes, and as there were insufficient findings to determine whether alimony was awarded pursuant to the factors, the First District reversed and remanded for recalculation of the incomes and new findings of fact.
Monday, March 12, 2012
Despite the general law regarding hearsay testimony from a minor, the First District Court affirmed today in Berthiame v. B.S., finding that, implicit in the statutory provision of Florida Statute §784.046 (2011) permitting a parent to proceed on behalf of a child is a finding that the parent’s allegations are sufficient, especially after hearing where witnesses may be called and cross-examined, even where the child does not appear for the hearing.
The First District Court of Appeal reversed today in D.O.R. ex rel Mash v. Ingram, in so doing citing to its recent ruling in D.O.R. ex rel Sherman v. Daly, 74 So.3d 165 (Fla. 1st DCA 2011), which held that deviation in administrative support cases can only be proper when it is pursuant to an approved parenting plan. The previous ruling was noted here.
Tuesday, March 6, 2012
In an appeal arising from a final administrative support order, the First District Court reversed today in Myles v. D.O.R. ex rel Batchelor, a case in which the Father was imputed income without a finding of fact that he was voluntarily underemployed. In light of the Department admitting that the imputation was error, the ruling was reversed on that score.
The First District Court of Appeal ruled today in Pullins v. Britton and D.O.R., finding first that the order on appeal was not appealable, but devoting some time to addressing the lower court’s prohibition on the Appellant’s future filing of any pleading alleging improper service of process except if filed by a member of the Florida Bar. As there was no finding or other evidence that notice and opportunity to respond were given to the Appellant before that serious sanction was entered, the case was remanded for the lower tribunal to ensure such notice.