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).
Thursday, May 31, 2012
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.