Wednesday, January 25, 2012

Fourth District Reverses Exclusive Possession Award

The Fourth District Court today issued an opinion in Fisher v. Fisher, in so doing reversing the lower tribunal’s award of exclusive use and possession of the former marital home to the Former Wife and children.  The award did not include a provision that the award would terminate on the Former Wife’s remarriage, or contain special circumstances which would permit that award to continue beyond any such remarriage.

Wednesday, January 18, 2012

Third DCA Reverses Temporary Fee Award

The Third District Court ruled today in Velazquez Leon v. Velazquez, setting aside the lower court’s temporary fee award.  In short, the failure of the lower court to include any findings as to ability to pay or need made the order impossible to affirm.

Third DCA Reverses Equitable Distribution and Alimony Awards

In Byrne v. Byrne, the Third District Court of Appeal reversed the lower tribunal’s equitable distribution today, for various reasons.  First, the lower court distributed the entire liability associated with the parties’ home, currently under water, to the Former Wife without including that loss in the equitable distribution, evidently on the assumption that the debt would disappear if the Former Wife walked away from the former marital home, and the Third District found instead that it had to be treated like any other debt.  Second, the lower court distributed a value associated with a now dissipated investment account to the Former Husband in an attempt to cure his dissipation, but did not include that distribution in the remainder of the equitable distribution plan formed.  The alimony then awarded to the Former Husband was reversed largely because of the lower court’s failure to distribute the assets according to statute, to consider the Former Husband’s retirement income, and refusal to reopen the evidence to consider a substantial reduction in the Former Wife’s salary.

Lord Mansfield’s Rule Examined by Fourth District

In Department of Revenue v. Iglesias, the Fourth District issued an opinion today overruling the lower tribunal’s order dismissing the case as to the putatitive father in favor of the second respondent in that paternity action, who was the husband of the mother at time of conception.  The Court offered a detailed analysis as to the effect of the presumption of legitimacy, and found that a privacy right must be asserted to make it an issue, requiring a determination of the best interests of the child in the case proper.

Friday, January 6, 2012

Fifth District Reverses Refusal to Impute Income

In Middleton v. Middleton, the Fifth District Court released an opinion today reversing the lower court’s determination that income could not be imputed because the Former Wife did not wish to work, and there was no evidence that any available jobs presented by the Former Husband’s expert would offer the employment to the Former Wife at her age.  The Fifth District reversed on the basis, essentially, that available employment should be calculated not based on a prospective employer’s actual willingness to hire a party, but rather the party’s work history, qualifications, and experience and the income available to a similarly situated party in the local market.

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