The First District Court of Appeal reversed today in Champion v. Champion, a post-judgment case in which the trial court approved a Magistrate’s report without holding a hearing. However, rather than reversal for not holding a hearing, the First District Court was compelled to reverse because there was not even an Order of Referral directing the Magistrate to hear the matter in the first place.
Friday, October 26, 2012
Wednesday, October 24, 2012
The Fourth District Court of Appeal ruled today in McPherson v. Bittner, a case in which the appellant challenged the lower court’s award of fees to the Appellee. In a previous appeal, the same Appellant had already challenged the lower court’s grant of fees in the underlying action, and that appeal resulted in affirmation, as well as an order finding entitlement to appellate fees. The Appellant now appealed the subsequent order granting those fees from the lower court. The Fourth District rejected the appeal, finding that entitlement was already the law of the case, and no material change was offered. Of note is Judge Warner’s special concurrence, in which she primarily addresses the Appellant’s repeated contention that appellate fees are not authorized in paternity actions , and makes a case that the Court should recede from Gilbertson v. Boggs, 743 So.2d 123, 128-9 (Fla. 4th DCA 1999) to find that 742.045 contemplates appellate fees. It is hard to find fault with Judge Warner’s comparison of the two plus decades of statutory interpretation of F.S. 61.16 and the interpretation of the nearly identical F.S. 742.045.
Thursday, October 18, 2012
The Fourth District Court of Appeal affirmed yesterday in Whelpley v. Whelpley, a case in which the Appellant sought to prove error on the face of the Final Judgment due to the absence of a transcript. While the Court initially found confusion in the award of bridge-the-gap alimony for a three year duration, on review of the Judgment it became clear that the actual award was one for rehabilitative alimony, after presentation of a plan for rehabilitation, and was as such affirmed.
Friday, October 12, 2012
The Fifth District Court of Appeal ruled today in Gibson v. Gibson, agreeing with the Former Wife that reversal was required on two points. First and foremost, despite finding that alimony was needed and appropriate, and despite the parties’ having agreed to an alimony award, the lower tribunal neither awarded alimony or explained why not. The Fifth District reversed on this point assuming it was an oversight by the lower court. In addition, the final judgment contains instructions requiring that the Former Wife be permitted to keep the home and the debt upon it as her own asset free and clear, and yet also requiring the sale of the home at the termination of an exclusive possession award and the division of the proceeds. Again, assuming error, the Fifth District Court reversed.
The First District Court of Appeal affirmed today in Van Looven v. Van Looven, a case in which the Former Husband appealed the lower court’s dismissal of his petition to modify child support after repeated failures to allege a substantial change in circumstances. The Former Husband argued that it was sufficient to argue that the modification was in the best interests of the children. However, the First District relied upon Florida Statute 61.14(1)(a) (2010) in finding that such an argument could not be sustained. In short, the root of the confusion was with the Overbey v. Overbey, 689 So.2d 811, 813 (Fla. 1997) ruling. That ruling centered around the bases on which a court could change child support, and includes in the permissible scope of a such an order a need to modify child support in the best interests of the child. However, the same case confirms that for a party to request a modification, they are still required to show a substantial change. As such, the dismissal was affirmed.
The First District Court of Appeal ruled today in Bateh v. Bateh, a case in which the Former Wife raised a number of issues on appeal. First and foremost, the Former Wife argued that the trial court erred in declining to find that the Former Husband had dissipated marital assets. The First District Court, however, found ample evidence in the record to contradict this assertion, in that the Former Husband’s dental practice was clearly in dire straits, and his attempts to save it did not constitute dissipation. The Former Wife also, however, raised the lower court’s failure to distribute approximately $30,000.00 in furnishings purchased by the Former Husband for a rental home he occupied during the parties’ separation, and reversal was required on that point. In addition, the Former Wife argued that the lower court erred in failing to address a post-filing check from the Former Husband to a family member, and on remand the lower court was instructed to address this issue. The First District also reversed as requested by the Former Wife on the grounds that the car found to be the joint property of the adult children was not valued and assigned. And, finally, the Court agreed that reversal was required due to the lower court’s failure to include in its Final Judgment a determination of the nature of the Former Wife’s actual need for alimony when awarding only nominal alimony which did not meet the need.
Wednesday, October 10, 2012
The First District Court of Appeal ruled today in Johns v. Johns, a case in which the Appellant’s adult son was granted an injunction under Florida Statute 741.20 (2011) against the Appellant without the benefit of a full evidentiary hearing. Instead, the trial court conducted questioning at an informal hearing at which only the Appellee was given an opportunity to present witnesses and testify. The Appellant was allowed to present some evidence, but was not questioned by the lower court as to the allegations in the petition. Based on this, and the seriousness of the possible penalties faced by the Appellant, the injunction was reversed with a full evidentiary hearing required on remand.
The Second District Court of Appeal affirmed today in Franklin v. Patterson-Franklin, a case centering around a QDRO dividing the marital portion of the Former Husband’s employee stock ownership plan. While the Second District acknowledged that there were multiple mathematical errors in the QDRO, the largest of which gave the Former Wife a thirty-two thousand dollar plus windfall in her favor. Unfortunately, however, as neither party caught the mistake in time for rehearing or an appeal of the Final Judgment, the argument was raised for the first time on appeal of the QDRO, and therefore rejected. In a happy coincidence of tipsy coachman-hood, however, a second error resulted in the accidental attribution of an additional thirty-two thousand dollars in debt to the Former Wife she should not have been assigned. Again, this issue was never raised in a timely fashion, meaning that the errors cancel each other out, for the most part.
Saturday, October 6, 2012
The Florida Family Law Rules of Procedure were amended again yesterday by the Florida Supreme Court, in an opinion available here. Among other changes, the language on interrogatories now permits a party to serve less than the full number of questions in the standard interrogatories and confirms that offers of judgment under Florida Rule of Civil Procedure 1.442 cannot be used in family law proceedings.
Wednesday, October 3, 2012
The Third District Court of Appeal reversed today in Murphy v. Murphy, a case in which the lower court granted a downward modification of alimony based on its finding of a supportive relationship at the same time the court found that the Appellant received no financial support whatsoever from that relationship. The Third District rejected the ruling on the basis that Florida Statute 61.14(b) and other authority make clear that some form of economic support must be received to support a modification. The Court further clarified that, despite the varying definitions of the word “support” in regular usage, a “supportive relationship” necessarily involves an alimony recipients receipt of monies from that source as well.
The First District Court of Appeal ruled today in Sabatini v. Wigh, affirming the lower court’s finding of contempt of shared parental responsibility against the appellant for changing a minor child’s school without agreement. However, the First District reversed the lower court’s order which essentially gave the Appellee discretion to choose whether to return the child to the original school choice, especially in light of testimony from the Appellee that the child’s best interest would not be served by such a decision.
The First District Court of Appeal affirmed today in Amos v. Amos, with detailed comments as to the issue of remote dissipation. Specifically, the Court looked at the question of whether the transfer of shares three years prior to the filing of a petition for dissolution was an intentional dissipation of marital assets. The First District Court ruled that, in line with the Fifth District’s ruling in Beers v. Beers, 724 So.2d 109 (Fla. 5th DCA 1998), the First District would also consider dissipation happening in a remote timeframe under the “catchall” provision of Florida Statute 61.075(1)(j), permitting a review of asset transfers well prior to the two years provided for in the statute.
In Hitchcock v. Hitchcock, 992 So.2d 436, 439 (Fla. 4th DCA 2008), the Fourth District Court of Appeal reversed the lower court’s judgment on equitable distribution and mandated that the court reconsider its previous fee award. The court below required a $50,000.00 plus reimbursement based on this mandate, but today, in Hitchcock v. Hitchcock, the Fourth District again reversed the award, finding that the award still resulted in an unjustified award of fees to one party in the face of nearly equal resources. As such, the 4th DCA reverse again, now mandating complete reversal of the previous fee award.
The Fourth District Court of Appeal affirmed today in Hoff v. Hoff, and took the occasion to write to address whether detailed factual findings are necessary in temporary relief orders. In short, the Fourth District found that temporary relief hearings are not meant to be trials, there is a need for expeditious relief, and as long as the court’s decision is based on competent, substantial evidence it will be affirmed.