tag:blogger.com,1999:blog-23644339024454671042024-03-08T05:34:58.919-05:00Florida Family Law BlawgChristopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.comBlogger286125tag:blogger.com,1999:blog-2364433902445467104.post-83352735332098911712013-07-31T14:15:00.001-05:002013-07-31T14:15:00.451-05:00Fourth District Court Reverses Paternity Judgment<p align="justify"><font size="3">The Fourth District Court of Appeal reversed today in </font><a href="http://www.4dca.org/opinions/July%202013/07-31-13/4D12-2369.op.pdf"><em><font size="3">Jeffers v. McLeary</font></em></a><font size="3">, 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.</font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com8tag:blogger.com,1999:blog-2364433902445467104.post-27829318612245632512013-04-17T21:11:00.001-05:002013-04-17T21:11:05.028-05:00Fourth DCA Permits Domestic Violence Filing by Temporary Resident<p align="justify"><font size="3">The Fourth District Court of Appeal ruled today in </font><a href="http://www.4dca.org/opinions/April%202013/04-17-13/4D11-2616.op.pdf"><font size="3"><em>Rudel v. Rudel</em></font></a><font size="3">, 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.</font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com14tag:blogger.com,1999:blog-2364433902445467104.post-49034829594276564842013-04-17T21:04:00.001-05:002013-04-17T21:04:23.830-05:00Restriction on Toy Guns Reversed by Fourth DCA<p align="justify"><font size="3">The Fourth District Court of Appeal ruled today in </font><a href="http://www.4dca.org/opinions/April%202013/04-17-13/4D12-1940.op.pdf"><font size="3"><em>Ingram v. Ingram</em></font></a><font size="3">, 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.</font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com13tag:blogger.com,1999:blog-2364433902445467104.post-39370171714747251822013-04-05T04:36:00.001-05:002013-04-05T04:36:53.861-05:00New Alimony Law Passes Senate<p align="justify"><font size="3">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 </font><a href="http://www.flsenate.gov/Session/Bill/2013/0718/BillText/e2/PDF"><font size="3">here</font></a><font size="3">.  In very brief, the bill would:</font></p> <ul> <li> <div align="justify"><font size="3">change equitable distribution to require the use of a coverture fraction for division of marital appreciation on pre-marital assets;</font></div> </li> <li> <div align="justify"><font size="3">permit security and interest for installment payments for equitable distribution;</font></div> </li> <li> <div align="justify"><font size="3">change the length of a “long-term” marriage for alimony purposes to 20 years;</font></div> </li> <li> <div align="justify"><font size="3">change a “short-term” marriage to one of 11 years in length or less; </font></div> </li> <li> <div align="justify"><font size="3">require the Court to prioritize bridge-the-gap alimony, followed by rehabilitative alimony, over any other form;</font></div> </li> <li> <div align="justify"><font size="3">require written findings for combined alimony awards;</font></div> </li> <li> <div align="justify"><font size="3">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;</font></div> </li> <li> <div align="justify"><font size="3">eliminates from alimony consideration non-marital assets not relied on by the parties during the marriage;</font></div> </li> <li> <div align="justify"><font size="3">create a presumption that everyone’s standard of living will decrease after a divorce;</font></div> </li> <li> <div align="justify"><font size="3">limit security for alimony awards;</font></div> </li> <li> <div align="justify"><font size="3">limit the length of time for durational alimony awards;</font></div> </li> <li> <div align="justify"><font size="3">set higher burdens to overcome the presumption against alimony for short-term marriages;</font></div> </li> <li> <div align="justify"><font size="3">detail the manner in which the presumption in favor of permanent alimony for long-term marriages may be overcome;</font></div> </li> <li> <div align="justify"><font size="3">bar alimony from being awarded to a party with the higher income;</font></div> </li> <li> <div align="justify"><font size="3">bar imputation of social security benefits against the obligor based on a social security retirement benefits letter;</font></div> </li> <li> <div align="justify"><font size="3">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;</font></div> </li> <li> <div align="justify"><font size="3">If unemployed for more than 2 years but less than 3, 70% income would be imputed;</font></div> </li> <li> <div align="justify"><font size="3">if more than 3 but less than 4, 60% income is imputed;</font></div> </li> <li> <div align="justify"><font size="3">if 4-5, then 50% income is imputed, and if more than 5 years, then 40% or minimum wage, whichever is greater;</font></div> </li> <li> <div align="justify"><font size="3">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;</font></div> </li> <li> <div align="justify"><font size="3">Denies anyone the right to modify timesharing based on that on any final custody order entered before July 1, 2013;</font></div> </li> <li> <div align="justify"><font size="3">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;</font></div> </li> <li> <div align="justify"><font size="3">Requires termination with a supportive relationship unless clear and convincing evidence shows alimony is still needed;</font></div> </li> <li> <div align="justify"><font size="3">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;</font></div> </li> <li> <div align="justify"><font size="3">Bars modification of alimony based on modification of child support payments;</font></div> </li> <li> <div align="justify"><font size="3">Bars modification of alimony based on remarriage or cohabitation of obligor and makes successor spouse income irrelevant;</font></div> </li> <li> <div align="justify"><font size="3">Makes retirement a substantial change as a matter of law at a reasonable age with no intent to return to work;</font></div> </li> <li> <div align="justify"><font size="3">Permits an anticipatory petition for termination of alimony effective upon the retirement date;</font></div> </li> <li> <div align="justify"><font size="3">After a year requires the court to divorce the parties unless there will be irreparable harm and rule on the rest later; and</font></div> </li> <li> <div align="justify"><font size="3">Makes many other changes to the current laws on dissolution of marriage.</font></div> </li> </ul> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com0tag:blogger.com,1999:blog-2364433902445467104.post-37983050602040806912013-03-22T21:29:00.001-05:002013-03-22T21:29:01.162-05:00First District Reverses Child Support Decree<p align="justify"><font size="3">The First District Court of Appeal ruled today in </font><a href="http://opinions.1dca.org/written/opinions2013/03-22-2013/12-1123.pdf"><font size="3"><em>Garren v. Oliver</em></font></a><font size="3">, 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.</font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com7tag:blogger.com,1999:blog-2364433902445467104.post-75235705684068389172013-03-20T13:55:00.001-05:002013-03-20T14:01:20.297-05:00Fourth District Rejects Petition for Writ of Certiorari<p align="justify"><font size="3">The Fourth District Court of Appeal ruled today in<em> </em><a href="http://www.4dca.org/opinions/Mar%202013/03-20-13/4D11-4462.op.pdf"><em>Carrillo-Jimenez v. Carillo</em></a>, 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 <a href="http://scholar.google.com/scholar_case?case=3136682928605158988&hl=en&as_sdt=2&as_vis=1&oi=scholarr"><em>Hughes v. Schatzberg</em></a>, 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. </font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com1tag:blogger.com,1999:blog-2364433902445467104.post-55976874759348842822013-03-14T08:13:00.001-05:002013-03-14T08:13:33.981-05:00Fourth District Court Reverses Denial of Health Insurance Coverage<p align="justify"><font size="3">In the case of </font><a href="http://www.4dca.org/opinions/Mar%202013/03-13-13/4D10-2910.op.pdf"><font size="3"><em>Gaudette v. Gaudette</em></font></a><font size="3">, 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.</font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com117tag:blogger.com,1999:blog-2364433902445467104.post-69393000812317626332013-02-27T19:32:00.001-05:002013-02-27T19:32:51.770-05:00First DCA Reverses Contempt Ruling<p align="justify"><font size="3">The First District Court of Appeal reversed today in </font><a href="http://opinions.1dca.org/written/opinions2013/02-27-2013/12-3111.pdf"><font size="3"><u><em>Hardman v. Koslowski</em></u></font></a><font size="3">.  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.</font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com6tag:blogger.com,1999:blog-2364433902445467104.post-3232340002519106942013-02-27T19:24:00.001-05:002013-02-27T19:24:14.329-05:00Fourth District Reverses Relocation<p align="justify"><font size="3">The Fourth District Court of Appeal ruled today in </font><a href="http://www.4dca.org/opinions/Feb%202013/02-27-13/4D12-2943.op.pdf"><em><font size="3">Eckert v. Eckert</font></em></a><font size="3">, 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.</font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com1tag:blogger.com,1999:blog-2364433902445467104.post-74287511064599450972013-02-22T08:34:00.001-05:002013-02-22T08:34:06.029-05:00SCOTUS Reverses Dismissal of Appeal of Return Order Under Hague Convention<p align="justify"><font size="3">Chief Justice Roberts delivered the opinion of a unanimous Supreme Court of the United States this week in the case of </font><a href="http://www.supremecourt.gov/opinions/12pdf/11-1347_m648.pdf"><font size="3"><em>Chafin v. Chafin</em></font></a><font size="3">.  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 <a href="http://www.allfamilylaw.com/In-The-News/Order-2011-10-13.pdf">ordered the child’s return to Scotland</a>, 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 <a href="http://www2.bloomberglaw.com/desktop/public/document/Chafin_v_Chafin_No_1115355CC_2012_BL_231213_11th_Cir_Feb_06_2012_">dismissed the appeal.</a> 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.  </font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com1tag:blogger.com,1999:blog-2364433902445467104.post-6668833704415142992013-02-19T04:19:00.001-05:002013-02-19T04:19:54.186-05:00First District Rejects Collateral Attack on MSA Post-Judgment<p align="justify"><font size="3">The First District Court of Appeal affirmed yesterday in </font><a href="http://opinions.1dca.org/written/opinions2013/02-18-2013/11-5663.pdf"><em><font size="3">Palmer v. Palmer</font></em></a><font size="3">, 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 <a href="http://scholar.google.com/scholar_case?case=3755405444399786118&q=832+So.+2d+266&hl=en&as_sdt=2,10"><em>Wells v. Wells, 832 So.2d 266 (Fla. 4th DCA 2002)</em></a> and <a href="http://scholar.google.com/scholar_case?case=9296830352523629105&q=1+So.+3d+1278&hl=en&as_sdt=2,10"><em>Miller v. Preefer, 1 So.3d 1278 (Fla. 4th DCA 2009)</em></a><em>.</em></font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com0tag:blogger.com,1999:blog-2364433902445467104.post-35333034300787994142013-02-07T14:12:00.001-05:002013-02-07T14:12:56.072-05:00Second District Court Reverses Alimony Award<p align="justify"><font size="3">The Second District Court of Appeal reversed yesterday in </font><a href="http://www.2dca.org/opinions/Opinion_Pages/Opinion_Pages_2013/February/Ferbruary%2006,%202013/2D11-6432.pdf"><em><font size="3">Doganiero v. Doganiero</font></em></a><font size="3">, 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.”</font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com0tag:blogger.com,1999:blog-2364433902445467104.post-39017856620166827612013-02-07T14:07:00.001-05:002013-02-07T14:07:09.706-05:00Fourth District Court Reverses for Failure to Address Holiday Timesharing<p align="justify"><font size="3">The Fourth District Court issued a ruling yesterday in </font><a href="http://www.4dca.org/opinions/Feb%202013/02-06-13/4D11-31.op.pdf"><em><font size="3">Moforis v. Moforis</font></em></a><font size="3">, 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 </font><a href="http://scholar.google.com/scholar_case?case=2298878187573413460&hl=en&as_sdt=2&as_vis=1&oi=scholarr"><em><font size="3">Todd v. Guillaume-Todd</font></em></a><font size="3">.  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.</font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com0tag:blogger.com,1999:blog-2364433902445467104.post-21615201627052246342012-12-13T06:35:00.001-05:002012-12-13T06:35:29.353-05:00Second District Reverses Time-Sharing Injunction<p align="justify"><font size="3">The Second District Court ruled yesterday in </font><a href="http://www.2dca.org/opinions/Opinion_Pages/Opinion_Page_2012/December/December%2012,%202012/2D12-4739.pdf"><font size="3"><em>Weissman v. Weissman</em></font></a><font size="3">, granting in part the Petitioner’s Petition for Writ of Certiorari regarding the lower court’s emergency <em>ex parte</em> order which denied him all timesharing for a period of 90 days.  The Court ruled that, while extraordinary circumstances justified the remainder of the lower court’s emergency order, there were no such circumstances justifying a denial of timesharing, and more importantly there was absolutely no notice allowed to the Petitioner prior to the ruling on that point.  As a result of that denial of procedural due process to the Petitioner, the Court granted cert as to that issue, and quashed the no-contact provision of the order</font>.</p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com0tag:blogger.com,1999:blog-2364433902445467104.post-77906227961641384362012-12-13T06:26:00.001-05:002012-12-13T06:26:43.063-05:00First DCA Reverses Life Insurance Award<p align="justify"><font size="3">The First District Court of Appeal ruled Monday in </font><a href="http://opinions.1dca.org/written/opinions2012/12-10-2012/12-0668.pdf"><font size="3"><em>Therriault v. Therriault</em></font></a><font size="3">, first affirming the lower court’s award of permanent alimony despite the “moderate” term of the marriage.  However, the First District was compelled to reverse the award of life insurance as security for that alimony in that the lower court failed to make the requisite findings regarding availability and cost of the insurance, ability to pay by the former husband, and the special circumstances warranting security for the support award, such as a spouse in poor health, one in arrears, or the like.</font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com0tag:blogger.com,1999:blog-2364433902445467104.post-23101913288717165032012-11-22T03:56:00.001-05:002012-11-22T03:56:51.760-05:00Denial of Injunction Modification Reversed by Fourth<p align="justify"><font size="3">The Fourth District Court of Appeal ruled yesterday in </font><a href="http://www.4dca.org/opinions/Nov%202012/11-21-12/4D11-4391.op.pdf"><font size="3"><em>Lotridge v. Lobasso</em></font></a><font size="3">, 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 </font><a href="http://scholar.google.com/scholar_case?case=2718302070768262868&hl=en&as_sdt=2&as_vis=1&oi=scholarr"><font size="3"><em>Colarusso v. Lupetin</em></font></a><font size="3">, 28 So.3d 238 (4th DCA 2010).</font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com0tag:blogger.com,1999:blog-2364433902445467104.post-33996314861916974912012-11-22T03:53:00.001-05:002012-11-22T03:53:53.108-05:00Fourth District Reverses Prevailing Party Fee Award<p align="justify"><font size="3">The Fourth District Court of Appeal ruled yesterday in </font><a href="http://www.4dca.org/opinions/Nov%202012/11-21-12/4D10-5138.op.pdf"><font size="3"><em>Miller v. Miller</em></font></a><font size="3">, 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 <a href="http://scholar.google.com/scholar_case?case=2052976001437690764&q=Wendel+v.+Wendel,+852+So.2d+277,+282+(Fla.+2d+DCA+2003)&hl=en&as_sdt=2,10&as_vis=1"><em>Wendel v. Wendel</em>, 852 So.2d 277, 282 (Fla. 2d DCA 2003)</a>, 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 <a href="http://scholar.google.com/scholar_case?case=16353070574180598319&hl=en&as_sdt=2&as_vis=1&oi=scholarr"><em>Franzen v. Lacuna Golf Ltd. P’ship</em>, 717 So.2d 1090, 1093 (Fla. 4th DCA 1998).</a>  On remand the trial court was mandated to vacate the fee award.</font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com0tag:blogger.com,1999:blog-2364433902445467104.post-36943649155514992372012-11-16T11:54:00.001-05:002012-11-16T11:54:12.982-05:00First District Reverses Permanent Alimony Award<p align="justify"><font size="3">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 </font><a href="http://opinions.1dca.org/written/opinions2012/11-16-2012/11-6888.pdf"><font size="3">Margaretten v. Margaretten</font></a><font size="3">.  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.</font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com0tag:blogger.com,1999:blog-2364433902445467104.post-61743356209087972062012-11-16T11:50:00.001-05:002012-11-16T11:50:46.729-05:00First District Court Reverses Rejection of MSA<p align="justify"><font size="3">In </font><a href="http://opinions.1dca.org/written/opinions2012/11-16-2012/11-4391.pdf"><font size="3">Colley v. Colley</font></a><font size="3">, 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.</font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com5tag:blogger.com,1999:blog-2364433902445467104.post-30920276976850228082012-11-16T11:47:00.001-05:002012-11-16T11:47:08.067-05:00Fifth District Court Reverses Permanent Injunction<p>In the case of <a href="http://www.5dca.org/Opinions/Opin2012/111212/5D12-448.op.pdf">Ricks v. Dodier</a>, 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.</p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com0tag:blogger.com,1999:blog-2364433902445467104.post-5760436204865122502012-11-16T11:45:00.001-05:002012-11-16T11:45:28.854-05:00Fifth District Reverses Insufficient Modification<p align="justify"><font size="3">The Fifth District Court of Appeal reversed today in </font><a href="http://www.5dca.org/Opinions/Opin2012/111212/5D12-448.op.pdf"><font size="3"><em>Scott v. Scott</em></font></a><font size="3">, 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.</font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com0tag:blogger.com,1999:blog-2364433902445467104.post-64968666727502867052012-11-16T11:41:00.001-05:002012-11-16T11:41:29.683-05:00Fifth District Reverses Final Judgment<p align="justify"><font size="3">The Fifth District Court of Appeal reversed today in </font><a href="http://www.5dca.org/Opinions/Opin2012/111212/5D10-4143.op.pdf"><font size="3"><em>Hernandez v. Hernandez</em></font></a><font size="3">, 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.</font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com0tag:blogger.com,1999:blog-2364433902445467104.post-57034295934320656842012-11-14T20:18:00.001-05:002012-11-14T20:18:35.758-05:00First District Reverses Denial of Modification of Injunction<p align="justify"><font size="3">The First District Court of Appeal reversed yesterday in </font><a href="http://opinions.1dca.org/written/opinions2012/11-13-2012/11-6528.pdf"><font size="3"><em>Goodwin v. Whitley</em></font></a><font size="3">, 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.</font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com0tag:blogger.com,1999:blog-2364433902445467104.post-13054737084674337762012-11-14T20:15:00.001-05:002012-11-14T20:15:47.079-05:00Fourth District Reverses Denial of Petition for Injunction<p align="justify"><font size="3">The Fourth District Court ruled today in </font><a href="http://www.4dca.org/opinions/Nov%202012/11-14-12/4D12-1600.op.pdf"><font size="3"><em>Hernandez v. Silverman</em></font></a><font size="3">, 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.</font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com0tag:blogger.com,1999:blog-2364433902445467104.post-64440108985134563232012-11-09T03:02:00.001-05:002012-11-09T03:02:46.522-05:00Fourth District Reverses Order Lacking Jurisdiction<p align="justify"><font size="3">The Fourth District Court of Appeal ruled yesterday in </font><a href="http://www.4dca.org/opinions/Nov%202012/11-07-12/4D11-4008.op.pdf"><font size="3"><em>Campbell v. Campbell</em></font></a><font size="3">, 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 <em>now </em>reversed, the issue is closed for further review.</font></p> Christopher Chopinhttp://www.blogger.com/profile/00165488592417752769noreply@blogger.com0