Wednesday, March 28, 2012

Fourth District Reverses Timesharing Schedule Failing to Address Parental Responsibility

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.

Second District Permits Corporate Discovery Notwithstanding Legal Ownership

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).

Second District Reverses Equitable Distribution

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

Fifth District Reverses Rosen Fees

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

Second District Reverses Denial of Modification

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.

First District Again Reverses Deviation in Administrative Support Action Without Parenting Plan

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.

First District Reverses on Alimony

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

First DCA Finds Exception to Hearsay Rule in Sexual Violence Proceedings

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.

First District Court Again Reverses Deviation Without Parenting Plan

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

First District Reverses Imputation

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.

First District Reverses Ban on Future Pleadings

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.

Friday, March 2, 2012

Third District Reverses Support Award Made without Affidavit

The Third District Court this week reviewed the case of Palewsky v. D.O.R., ex rel Miller.  In so doing, the they reviewed a case where the lower tribunal had determined paternity and awarded child support without a financial affidavit in the record from the mother.  The Department argued that this was harmless error, but the Third District found that the absence of the affidavit was not harmless, and was forced to reverse the award.

Second DCA Reverses Fee Award

In Routh v. Thompson and Cox, the Second District this week found error in a contempt order issued by the lower court.  That lower tribunal had ordered that the contemnor was required to pay $1,000.00 a month in attorneys’ fees on a temporary basis, and was found to have included insufficient findings to support his ability to pay that award.  In addition, as there was no finding made as to the reasonableness of the hourly rate and number of hours expended and awarded, the fee award was deficient, and reversed.

Second DCA Reverses Final Judgment

The Second District Court reversed this week in Gulledge v. Gulledge, on several grounds.  First, the lower tribunal’s failure to include a deadline for refinancing or sale of the marital home ordered in the final judgment was found to be error.  Next, for denying alimony to the husband after a thirty plus year marriage with only a finding that he had no need, and without specific income findings, the Second District found that nominal alimony of at least a dollar a year should have been ordered.  And, finally, as the lower court evidently failed to address the husband’s properly plead fee request, remand was required for reconsideration of that issue.

Fourth District Permits Action for Modification from Rehabilitative to Permanent Alimony

In Walker v. Walker, the Fourth District Court reversed the lower tribunal’s order of dismissal this week.  Prior to the expiration of the term for an agreed period of rehabilitative alimony, the Former Wife moved for modification of that award to an increased amount on a permanent basis.  The lower court dismissed on the basis that there was no subject matter jurisdiction to make such an award, but was found to have had both personal and subject matter jurisdiction to proceed despite a lack of any specific reservation to award permanent alimony post-judgment.

Fourth District Corrects Paternity Judgment

The Fourth District Court of Appeal affirmed the lower court in Williams v. Lutrario this week on all issues but two.  First, there was a failure by the lower court to award a credit for support payments made, and, although the court awarded the father the IRS tax exemption in odd-numbered calendar years, error was found in the failure to require the custodial parent to execute a waiver of that dependency exemption only if the father is current in support payments.

Fourth District Reverses Fee Award

The Fourth District Court of Appeal ruled this week in Hallac v. Hallac, in so doing reversing the lower court in part for its award of fees to the husband based on the wife’s failure to accept a reasonable settlement offer.  Among other findings, the Court ruled that failure to accept a reasonable settlement offer, without other vexatious conduct, did not rise to the level of misconduct necessary to warrant a fee award under Chapter 61.

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