Friday, August 24, 2012

Second District Reverses Split of Medical Expenses

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.

Fifth District Reverses Modification of Arrearages

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.

5th DCA Overturns Finding of Res Judicata

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

Third DCA Reverses Order Granting Relief

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.

Fourth DCA Reverses Contempt Finding

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

First DCA Affirms Finding of Laches

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

First DCA Reverses Modification in Part

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.

Fourth DCA Reverses Denial of Alimony Modification

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.

Fourth District Discusses Alimony

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.

Fourth District Reverses Denial of Fees

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.

Fourth District Affirms Denial of Modification

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

Fourth District Reverses Finding of Divestment

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

First DCA Reverses Fee Award

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.

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