Thursday, November 22, 2012

Denial of Injunction Modification Reversed by Fourth

The Fourth District Court of Appeal ruled yesterday in Lotridge v. Lobasso, a case in which the Appellant sought to modify a final judgment of injunction based on changed circumstances, and the request was denied without a hearing.  The Fourth reversed and remanded for a hearing to be held, where the Appellant is entitled to a “meaningful opportunity to be heard” pursuant to Colarusso v. Lupetin, 28 So.3d 238 (4th DCA 2010).

Fourth District Reverses Prevailing Party Fee Award

The Fourth District Court of Appeal ruled yesterday in Miller v. Miller, a case in which the Appellant raised seven different reasons why an order granting attorneys’ fees to the Appellee should be reversed.  The Fourth District found merit in the first argument raised, which was that it was error for the Court to grant prevailing party fees under the Marital Settlement Agreement for a modification, when the prevailing party clause was self-limiting to enforcement actions.  The Appellee argued that his action for modification was inextricably intertwined with the Appellant’s simultaneous contempt action.  Citing Wendel v. Wendel, 852 So.2d 277, 282 (Fla. 2d DCA 2003), the Court found that contractual fee provisions are required to be strictly construed, and as such found that the plain language of the agreement prevented an award of fees for a modification action.  The Appellee’s claim of intertwined issues was rejected because the work on the contempt and enforcement were not indistinguishable from each other, pursuant to Franzen v. Lacuna Golf Ltd. P’ship, 717 So.2d 1090, 1093 (Fla. 4th DCA 1998).  On remand the trial court was mandated to vacate the fee award.

Friday, November 16, 2012

First District Reverses Permanent Alimony Award

The First District Court of Appeal has been the first Court to enforce some of the new alimony language in Florida Statute 61.08 today, in its ruling in Margaretten v. Margaretten.  Under that statute, an award of permanent periodic alimony now requires the lower court to find that no other form of alimony would satisfy before awarding permanent alimony.  The Former Wife argued that this finding was implicit in the other rulings made.  The First District rejected this claim, and in fact pointed out that some of the factors cited by the trial court would appear to support a durational award.  As such, on remand, if the trial court again orders permanent alimony, it has been mandated to first exclude all other types of alimony.

First District Court Reverses Rejection of MSA

In Colley v. Colley, the lower court issued a Final Judgment of Dissolution of Marriage which set aside the parties’ Marital Settlement Agreement as vague and in part violating public policy.  On review, the First District agreed with the former wife that there was no showing of fraud, and that any vagueness in the agreement could be solved by the Court’s interpretation.  Likewise, if part of the agreement violates public policy, only that part could be declared invalid.  Because the failure of the agreement to resolve every issue is not a reason, according to the First District, to invalidate the entire MSA, reversal was required with the Court instructed to apply the agreement as valid.

Fifth District Court Reverses Permanent Injunction

In the case of Ricks v. Dodier, the lower court issued a Final Judgment of Injunction for Protection Against Domestic Violence based on the entry of a stipulation and without a full evidentiary hearing.  On appeal, the Fifth District Court of Appeal determined that the stipulation in fact only provided for the extension of the temporary injunction previously entered.  As such, reversal was required.

Fifth District Reverses Insufficient Modification

The Fifth District Court of Appeal reversed today in Scott v. Scott, finding that the downward modification of alimony granted to the Former Husband was insufficient.  The Former Husband had suffered two heart attacks and a significant reduction in income, but the lower court clearly took issue with some of the expenses listed in the Former Husband’s financial affidavit, including a $500.00 per month gas expense despite having no automobile or employment, and as a result reduced a $700.00 per month alimony payment to $500.00 per month.  On review, the Fifth District found that, even without the expenses which the lower court appeared skeptical of, the Former Husband’s other expenses still do not permit him to pay $500.00 per month.  On remand the lower court is to further reduce the obligation to a level both parties can meet their needs upon.

Fifth District Reverses Final Judgment

The Fifth District Court of Appeal reversed today in Hernandez v. Hernandez, both as to equitable distribution and as to alimony.  First, while it was argued that the Court erred in using the tax assessor’s value for the value of one parcel of real property, the Fifth District found that, in fact, the lower court had first reviewed each party’s position as to value, and then found that the assessed value was within the range, and therefore closest to fair market.  However, the lower court was reversed for failing to identify, value, and deduct from the value of real property an existing bridge loan.  Finally, while the lower court was within its discretion to award alimony to the Wife, the Fifth District found that the award was made based on an incorrect and out of date financial affidavit for the Wife.  As such, on remand, the lower court was instructed to make the determination again based on the more accurate affidavit.

Wednesday, November 14, 2012

First District Reverses Denial of Modification of Injunction

The First District Court of Appeal reversed yesterday in Goodwin v. Whitley, a case in which the lower tribunal denied a motion seeking to modify the terms of an injunction against repeat violence after taking four words of testimony from the petitioner, and none from the moving party.  The First District ruled that the Appellant was entitled to cross-examine the Appellee, to testify, and to present argument to the court, and denying that opportunity to him denied him due process as well.  On remand a full evidentiary hearing is required.

Fourth District Reverses Denial of Petition for Injunction

The Fourth District Court ruled today in Hernandez v. Silverman, a case in which the Court below denied the petition without conducting a full evidentiary hearing.  The Fourth District ruled that, as the allegations were pled with sufficient specificity and additional evidence given at hearing might have justified the injunction, the hearing was required.  On remand the lower court is required to hold a full evidentiary hearing.

Friday, November 9, 2012

Fourth District Reverses Order Lacking Jurisdiction

The Fourth District Court of Appeal ruled yesterday in Campbell v. Campbell, a case in which the lower court entered an order modifying the parties’ parenting plan, and then vacated it while it was on appeal.  The Fourth District Court found that the lower court lacked jurisdiction to vacate its Modification Order while an appeal of that order was still pending.  As the Former Wife voluntarily dismissed her appeal in apparent reliance on the order now reversed, the issue is closed for further review.

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