Wednesday, July 31, 2013

Fourth District Court Reverses Paternity Judgment

The Fourth District Court of Appeal reversed today in Jeffers v. McLeary, a case in which the Father appealed an amended final judgment of paternity on the grounds that the Court was required to take evidence from each party regarding timesharing.  The Father failed to appear for the contempt hearing from which a Final Judgment of Paternity issued, but timely filed a motion for rehearing or to vacate seeking to offer testimony on the issue.  In an opinion authored by Judge Ciklin, the Court ruled that, in this very narrow set of facts relating only to timesharing, the Court should have held a hearing to consider the Father’s evidence as to timesharing, so that the eventual ruling would be sure to conform with the best interests of the minor child.

Wednesday, April 17, 2013

Fourth DCA Permits Domestic Violence Filing by Temporary Resident

The Fourth District Court of Appeal ruled today in Rudel v. Rudel, a case involving two German residents.  While the Wife and daughter of the parties had temporarily moved to Florida for the minor child to attend school, the Wife filed a petition for divorce and another for an injunction against domestic violence.  The Fourth District upheld the lower court’s dismissal of the petition for dissolution, in that the Wife lacked any intent to remain or actual residence in the state.  However,  in reviewing the petition for an injunction, the Fourth District determined that the Wife had in fact stated sufficient facts to justify entry of an injunction, and no contrary evidence was presented by the Husband.  The Fourth District, as such, reversed the lower court’s credibility determination and remanded for a new hearing on the petition for injunction.

Restriction on Toy Guns Reversed by Fourth DCA

The Fourth District Court of Appeal ruled today in Ingram v. Ingram, reversing as to a single issue raised.  Referencing an “unfortunate experience” with a BB gun while on a visit with his father, the Fourth District upheld a restriction on BB guns, paintball guns, or actual firearms during timesharing.  However, in the lack of any evidence supporting such a ruling, the 4th reversed the prohibition on the child possessing any toy gun as well.

Friday, April 5, 2013

New Alimony Law Passes Senate

After a third reading in the Florida Senate yesterday, CS/CS/SB 718, innocuously titled “Family Law”, was approved by that body with a vote of 29 yeas to 11 nays, and is now on its way to the House Clerk for a first reading and committee assignment.  The most recently amended version of the bill text is available here.  In very brief, the bill would:

  • change equitable distribution to require the use of a coverture fraction for division of marital appreciation on pre-marital assets;
  • permit security and interest for installment payments for equitable distribution;
  • change the length of a “long-term” marriage for alimony purposes to 20 years;
  • change a “short-term” marriage to one of 11 years in length or less;
  • require the Court to prioritize bridge-the-gap alimony, followed by rehabilitative alimony, over any other form;
  • require written findings for combined alimony awards;
  • place a burden of proof on the party seeking alimony to show need as a first matter, then determine ability to pay, then employ the traditional alimony factors;
  • eliminates from alimony consideration non-marital assets not relied on by the parties during the marriage;
  • create a presumption that everyone’s standard of living will decrease after a divorce;
  • limit security for alimony awards;
  • limit the length of time for durational alimony awards;
  • set higher burdens to overcome the presumption against alimony for short-term marriages;
  • detail the manner in which the presumption in favor of permanent alimony for long-term marriages may be overcome;
  • bar alimony from being awarded to a party with the higher income;
  • bar imputation of social security benefits against the obligor based on a social security retirement benefits letter;
  • if the obligor is unemployed at the time of the Petition for more than a year but less than two automatically impute them 80% of their former salary;
  • If unemployed for more than 2 years but less than 3, 70% income would be imputed;
  • if more than 3 but less than 4, 60% income is imputed;
  • if 4-5, then 50% income is imputed, and if more than 5 years, then 40% or minimum wage, whichever is greater;
  • add a presumption that equal timesharing is in the best interests of the child unless the court finds either detriment or clear and convincing evidence of extenuating circumstances;
  • Denies anyone the right to modify timesharing based on that on any final custody order entered before July 1, 2013;
  • Allows for upward modification of alimony if needs are not met at time of dissolution based on clear and convincing evidence which must include federal tax returns, and limits any finding of permanence in an obligor’s income to at least 2 years in length before a modification can be granted;
  • Requires termination with a supportive relationship unless clear and convincing evidence shows alimony is still needed;
  • Creates a rebuttable presumption that modification or termination of alimony is retroactive to the date of filing, and if the oblige unnecessarily or unreasonably fights the termination, the court may award the obligor his fees under 61.16;
  • Bars modification of alimony based on modification of child support payments;
  • Bars modification of alimony based on remarriage or cohabitation of obligor and makes successor spouse income irrelevant;
  • Makes retirement a substantial change as a matter of law at a reasonable age with no intent to return to work;
  • Permits an anticipatory petition for termination of alimony effective upon the retirement date;
  • After a year requires the court to divorce the parties unless there will be irreparable harm and rule on the rest later; and
  • Makes many other changes to the current laws on dissolution of marriage.

Friday, March 22, 2013

First District Reverses Child Support Decree

The First District Court of Appeal ruled today in Garren v. Oliver, a case in which the Appellant challenged the lower court’s judgment of paternity.  The First District found merit in one issue raised, specifically that the child support set did not use the “gross up” method for support calculation despite a schedule of timesharing that warranted it.  The First District Court reversed on this basis, finding that the use of the alternate calculation was mandatory.

Wednesday, March 20, 2013

Fourth District Rejects Petition for Writ of Certiorari

The Fourth District Court of Appeal ruled today in Carrillo-Jimenez v. Carillo, a case in which the Appellant had sought to strike a social investigation report which he alleged unfairly disclosed confidential communications between the parties’ minor children and their psychotherapist.  The Petition was denied based on the holding of Hughes v. Schatzberg, 872 So.2d 996 (Fla.4th DCA 2004), which held that a parent involved in litigation over the welfare of a child may not assert the psychotherapist patient privilege on behalf of the child.  The Court appeared to pay special attention to the petitioner’s motivation in seeking the writ.

Thursday, March 14, 2013

Fourth District Court Reverses Denial of Health Insurance Coverage

In the case of Gaudette v. Gaudette, the lower court determined that it was unable to award the Appellant payment of her health insurance from the Appellee as “there was no evidence presented as to the cost of the Wife’s health insurance and if that cost would be affordable to the Husband with his limited income.  The Fourth District Court of Appeal reversed yesterday on the basis that the Appellee’s own financial affidavit listed the cost of Appellant’s health insurance.  Finding this sufficient record evidence, on remand the Fourth District instructed the lower court to reconsider its findings on this issue.

Wednesday, February 27, 2013

First DCA Reverses Contempt Ruling

The First District Court of Appeal reversed today in Hardman v. Koslowski.  In that case, the lower court found the Former Wife in contempt for violating a contempt order despite evidently providing the full timesharing ordered.  In question was aspirational language contained in the order suggesting a hope that the Former Husband’s timesharing would return to routine and normal timesharing, and the Former Wife’s alleged failure to negotiate with the Former Husband to achieve that state.  On review, the First District reversed in that the order in question does not specifically instruct the Former Wife to engage in any conduct in line with the aspirational comments in the order.  As such, the contempt finding was reversed, with its accompanying sanction.  The First District also found that sanction improper on the basis of the lack of any finding of need or ability to pay, and the lack of any purge provision.

Fourth District Reverses Relocation

The Fourth District Court of Appeal ruled today in Eckert v. Eckert, a case in which the lower court granted the Mother’s request for relocation without making any findings, including even a finding that relocation was in the child’s best interest.  The Mother had testified that other than the use of a home belonging to her son in the new location, she had no reason to move.  The Fourth District reversed the grant of relocation.  In addition, the lower court declined to impute income to the Mother on the basis that the Court believed the parties agreed that she would not work while the child was still young, despite the lack of any reference to any such agreement in the record, and evidence that the Mother returned to work immediately after the birth of the child.  This ruling was also reversed, as was an order that the Father secure child support with two million dollars in insurance and no findings made as to the cost or availability of such insurance.

Friday, February 22, 2013

SCOTUS Reverses Dismissal of Appeal of Return Order Under Hague Convention

Chief Justice Roberts delivered the opinion of a unanimous Supreme Court of the United States this week in the case of Chafin v. Chafin.  In that case, the Petitioner was a U.S. citizen and member of the armed forces, and the Respondent was a citizen of the U.K., living in Germany, where the parties later had a child.  During the Petitioner’s deployment in Afghanistan, the Respondent moved with the child to Scotland.  When the Petitioner was later transferred to Alabama, the Respondent traveled there with the child, and soon after the Petitioner filed for divorce and custody of the child in that state.  The Respondent was subsequently deported, at which point the minor child stayed with the Petitioner.  Several months later, however, the Respondent filed a petition under the Hague Convention on the Civil Aspects of International Child Abduction and the International Child Abduction Remedies Act seeking the child’s return to Scotland.  The District Court for the Northern District of Alabama ordered the child’s return to Scotland, and the Respondent immediately took the child to that country and initiated child custody proceedings in that jurisdiction.  Scotland granted interim custody and an injunction against removal of the child prohibiting the Petitioner from removing the child from Scotland.  While Petitioner appealed the District Court’s return order to the Eleventh Circuit Court of Appeals, that Court ruled that the appeal was moot in that U.S. Courts lack authority to act once a child has been returned to a foreign country, and dismissed the appeal. SCOTUS reversed this week, however, and found that the return of a child to a foreign country under the Hague Convention does not render an appeal of that return order moot. 

Tuesday, February 19, 2013

First District Rejects Collateral Attack on MSA Post-Judgment

The First District Court of Appeal affirmed yesterday in Palmer v. Palmer, a case in which the Former Husband sought review of the lower court’s enforcement of the parties’ Marital Settlement Agreement.  Specifically, that agreement contained a provision requiring the Former Husband to pay a set penalty for failure to obtain refinancing on the former marital home within the agreed time.  The Former Husband argued that the provision was not a valid liquidated damages clause, but rather a punitive damage for delay in performance, and therefore was void.  The First District Court found that, in fact, such a provision would at most make for a voidable, not void, contract, thus barring a collateral attack after the incorporation of the agreement into the Court’s Final Judgment per Wells v. Wells, 832 So.2d 266 (Fla. 4th DCA 2002) and Miller v. Preefer, 1 So.3d 1278 (Fla. 4th DCA 2009).

Thursday, February 7, 2013

Second District Court Reverses Alimony Award

The Second District Court of Appeal reversed yesterday in Doganiero v. Doganiero, finding merit in only one of the issues raised.  The lower court granted the Former Wife a sixteen year period of alimony, but made no finding despite facts suggesting the propriety of permanent alimony that made clear why only durational alimony was given.  On remand the lower court was instructed to explore permanent periodic alimony, and to set forth its rationale for any award of alimony.  In addition, the alimony awarded was for $100.00 per month, and the lower court was instructed on remand that any type of alimony awarded “must be of a legally sufficient amount.”

Fourth District Court Reverses for Failure to Address Holiday Timesharing

The Fourth District Court issued a ruling yesterday in Moforis v. Moforis, in so doing again reversing a Final Judgment yesterday due to the trial court’s failure to address holiday or vacation timesharing in that decree, as they previously had in Todd v. Guillaume-Todd.  In that case, the Court ruled, even in the absence of a transcript of the pertinent hearing, that the lower court’s failure, where visitation is ordered, to permit holiday timesharing contradicts such a routine practice as to be error.  The same case also addressed, and rejected, provisions for the forfeiture of timesharing after a certain period of lateness.

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