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.
Wednesday, February 27, 2013
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
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
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
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.”
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.