The Third District Court ruled today in Dolan v. Dolan, and reversed the lower tribunal’s dismissal of an amended petition for modification as a result of a failure to serve the former wife with that pleading. The Third District Court found that the former wife had already waived the insufficiency of service claim she later prevailed upon, and that the former husband was not required to preserve that issue for appeal through a motion for rehearing.
Wednesday, February 22, 2012
The Fourth District Court of Appeal reversed the Final Judgment today in Preudhomme v. Bailey, and while the bulk of that Judgment was affirmed on the basis of credibility determinations, the Court did reverse on some grounds. First, the Judgment was overturned for error in determining which property was marital and non-marital. In addition, the lower court, which provided limited and restricted visitation to the wife, was found to have erred in limiting any attempt to modify that parenting plan until fifty-two weeks of individual therapy was completed, along with twenty-six weeks of joint therapy with the children. That limitation was found to be excessive in that it prohibited modification even if it were in the best interests of the children, who wish to see their mother.
The Fourth District Court of Appeal ruled today in MacLeod v. MacLeod, and reversed the lower court’s determination as to the disposition of a certain parcel of real property. In short, the Court ruled that residing in and making improvements to a non-marital home does not “convert” it to being marital property. The Court did leave open, however, the issue of the value of any marital appreciation value caused by expenditure of marital funds on the property, to be determined on remand.
Friday, February 17, 2012
In G.L. v. D.C.F., the Fifth District ruled today that the lower tribunal erred when it failed to provide notice under the Indian Child Welfare Act of a pending termination of parental rights to the appropriate tribal representatives. While the issue was not raised as error below, failure to follow the ICWA was found to preempt the traditional law on preservation of error.
The Second District Court of Appeal reversed today in Barile v. Gayheart, a case in which the lower tribunal treated an insufficient petition for injunction against repeat violence as, instead, a petition for a domestic violence injunction. The trial court’s switch resulted in a denial of due process to the respondent, resulting in reversal.
The First District Court of Appeal ruled today in DOR ex rel Rambert v. Williams, and reversed the lower court’s deviation from support based on a verbal parenting plan which was not court authorized. Essentially, the First District found that only a written, authorized parenting plan could, by statute, justify a deviation.
The First District Court of Appeal reversed today in Achurra v. Achurra, a case in which the lower tribunal entered a permanent injunction against domestic violence without first holding an evidentiary hearing on the allegations. As a result of the lack of any evidentiary hearing on the matter, the District Court was forced to consider a case where the Petitioner presented no evidence to meet her initial burden of proving entitlement to relief.
Thursday, February 16, 2012
The Second District Court of Appeal reversed a lower court yesterday in C.J.E. v. S.D.A., and was able despite the lack of a record to reverse the Final Judgment on its face alone. This was because while there was retroactive support awarded to the Mother, it did not include child care costs. The lower court was instructed on remand to include those costs in its calculation.
The Fourth District Court of Appeal issued a ruling yesterday in Norberg v. Norberg, a case in which the Former Wife appealed a finding of contempt resulting from a hearing she did not attend on the basis that there was no finding of ability to pay the purge amount and for other reasons. The Fourth District found no error in the lack of a finding that the Former Wife could pay the purge, in that incarceration was not ordered. Likewise, the lower court was affirmed for finding that the amount of damages was that stated by the Former Husband, as this was a credibility determination. However, the lower court’s decision to modify timesharing was reversed, as there was no pleading seeking that relief before the Court.
The Fourth District ruled yesterday in Drdek v. Drdek, a rather unusual case in which one Magistrate found that the Former Husband was not in contempt for non-payment of alimony in that the retirement benefits he lived on were waived by the Former Wife in the MSA. No exception was taken to that order, and the Court upheld the report of the Magistrate. At a later contempt hearing, however, a different Magistrate decided that the previous ruling was incorrect, and overruled it on the basis that a manifest injustice would occur if contempt was not found. At exceptions filed by the Former Husband, that second report was rejected on the basis of the law of the case. The Fourth District Court, first pointing out that this is not the Law of the Case Doctrine, instead overturned the second ruling on the basis that the Magistrate lacked the ability to “correct errors of law committed by a predecessor,” as did the lower court. As such, having taken no exception or appeal, the Former Wife was unable to seek a different result, and remand was ordered to determine if there was some other means of payment besides the retirement benefits.
The Fourth District Court ruled yesterday in Garcia-Lawson v. Lawson, reversing the Final Judgment but permitting the lower court on remand to enter the same Final Judgment. This was due to the entry of that judgment while two appeals, noted by the Fourth District to have been frivolous and later dismissed, were pending. As such, the lower court lacked jurisdiction to enter a final order.
Friday, February 10, 2012
The Second District Court today reversed an order holding the Former Husband in contempt in Sauriol v. Sauriol, finding that the lower court’s sanction was punitive, and not in the nature of a civil contempt purge, and that the required steps for entry of a criminal contempt order were not met.
The Fifth District Court of Appeal ruled today in McClune v. McClune, finding that the lower court erred in holding the Former Husband in contempt of an agreement containing a latent ambiguity as to the method of distribution of stock and retirement assets. The Court remanded for the lower court to hold an evidentiary hearing to determine the true meaning of the parties’ agreement in that regard.
The Fifth District Court of Appeal ruled today in Stoothoff v. Hobdy, in so doing reversing the lower tribunal for finding a valid and binding settlement agreement existed regarding timesharing with minor children. The Fifth District determined that the parties intended for a full written agreement to be made, and that agreement was not completed.
Thursday, February 9, 2012
The First District Court of Appeal dismissed half of a Petition for Writ of Certoriari today in Brown v. Brown, finding that the Petitioner had failed to show irreparable injury as to two of his claims, and denied the remainder of the petition on the merits. The failure to prove jurisdiction was largely based on the lower tribunal’s decision to withhold sanctions for the contempt pending any future violations.
The First District Court of Appeal reversed in part today in Justice v. Justice, finding internal inconsistency requiring clarification in that the Final Judgment referenced one timesharing schedule while attaching a different one. Error was found in the lower tribunal’s failure to make findings as to the award of permanent periodic alimony made to the Former Wife, as required by Florida Statute 61.08(2), including those as to need, ability, and earning capacity. Error was also found in the lower court’s failure to identify, value, and distribute various assets. First, the lower tribunal was reversed for not ruling on the Former Husband’s claim that certain assets were non-marital, despite the Former Wife’s claim on appeal that the assets were already in his possession and too trivial to warrant ruling, and second, the lower court was reversed for not specifically identifying property as it was to be divided.
Wednesday, February 8, 2012
The Second District Court ruled today in DiNardo v. DiNardo regarding the lower tribunal’s orders on each party’s respective motion for attorneys’ fees filed immediately following entry of a Final Judgment (but not heard for three years). The Husband’s request for fees under Rosen was properly denied, held the Court, in that the conduct complained of did not rise to a level sufficient to warrant such an award. However, the lower court’s denial of statutory fees to the Wife was reversed on the basis that the tribunal improperly considered a lower income for the Husband than actual earnings suggested. By failing to consider regular bonuses received by the Husband, the lower court was found to have not taken into account all financial resources available to each party, and was ordered to do so on remand.
In Leo v. Leo, the Fourth District today reversed a finding of contempt against the Former Wife, on the basis that no evidentiary hearing was ever held. While the Court’s Order reflected that the facts giving rise to the contempt finding were not in dispute, the Fourth District still found that the Former Wife had the right to an evidentiary hearing on the matter.
The Fourth District Court of Appeal ruled today in Knowles v. Knowles, reversing the lower court’s approval of the Magistrate’s finding that a 2006 Final Judgment superseded a 2007 agreed order modifying timesharing which was erroneously entered in a 2004 case. This resulted in a finding that no modification was warranted, which in turn modified the timesharing by ignoring the 2007 agreed order.
Wednesday, February 1, 2012
The Third District Court of Appeal affirmed today, per curiam, the lower court’s finding in Toral v. Toral, that certain funds were marital property. The Court found that the husband had not only commingled the originally non-marital property with marital funds, but that he had agreed to transfer the entire account containing them to the wife’s mother in order to earn a higher interest rate. The lower court determined based on this that a gift was intended, and the Third District was unable to set aside that determination of credibility.
In an appeal related to a charging lien granted in favor of two attorneys based on their work in an underlying dissolution of marriage action, the Second District Court reversed in part today in Riveiro v. Mason, P.A.. The basis for reversal was the lack of any finding as to the reasonable hourly rate or number of hours expended by counsel and resulting in the $76,000.00 lien, as required by Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla. 1985) and its progeny.
The Second District Court of Appeal reversed today in Crick v. Crick, on several grounds. First, in dividing the parties’ credit card debt used to purchase certificates of deposit, the court designated the same monies as both liability and asset, creating an unjustified distribution to the Wife. Second, the lower court granted twenty-four months of rehabilitative alimony in the amount of $2,000.00 a month without making any findings as to need or ability to pay, or as to either party’s net income or the former husband’s gross income. Also, the lower court evidently ordered combined alimony and child support which exhausted the entirety of the former husband’s income. Finally, the lower court’s order that the former husband in addition pay one-half of his former wife’s attorneys’ fees was reversed on the ground that the equitable distribution and alimony reversals would require reconsideration of that award.
The Second District Court of Appeal dismissed the appeal today in Peterson v. Peterson, on the basis that the Final Judgment was not final in nature, and requiring the lower court to enter such a final order. The lower court had reserved jurisdiction to determine a parenting plan and all matters relating to the children in a separate order, retained jurisdiction to determine alimony in the future, failed to value various business assets, and otherwise left many issues still unresolved between the parties, including attorneys’ fees and costs. While the Second DCA sympathized with the lower tribunal for the lack of clear evidence before it, they were still required to find the Final Judgment to be a non-final order.
The Second District Court ruled today in King v. King, in so doing reversing the lower tribunal’s finding that jurisdiction was lacking to enforce interest payments due under the parties’ marital settlement agreement by use of its contempt powers, and as a result denying the Former Wife’s Motion. That Court was reversed because the Final Judgment contained a specific reservation of jurisdiction for enforcement purposes, and the Second District also pointed out that, if jurisdiction were truly lacking, denial on the merits was improper in favor of dismissal of the motion.