Second District Reverses Final Judgment on Several Grounds

The Second District Court of Appeal issued its ruling today in Fortune v. Fortune, in so doing reversing the lower tribunal for characterizing an advance from the Husband’s business as a marital debt, for failing to award at least nominal permanent alimony to the Wife despite her entitlement to it, for assigning dependency exemptions to the Husband without providing for waivers from the Wife or making the exemptions conditional on current child support, and for failing to restore the Wife’s maiden name despite her request.

Fourth District Court Reverses Private School Tuition Order

The Fourth District Court of Appeal issued its opinion today in Grillo v. Clay, reversing the lower tribunal for its failure to hold an evidentiary hearing before modifying child support to include a private preschool tuition obligation, and pointing out that the order was defective as well for conditioning the Father’s exercise of timesharing on his payment of this new obligation, thus conditioning visitation rights on the payment of child support.

Court Reminds Appellant of New Statute

The Fourth District Court ruled Wednesday in Cox v. Deacon, in part reminding the Appellant and others that, due to changes in Florida Statute § 741.30(6)(c), Fla. Stat. (2010), there is no longer a one year limitation on the term of a permanent injunction against domestic violence.

Failure to Address Fees Mandates Reversal

The Fourth District Court of Appeal issued its ruling in Flores v. Flores this week, reversing the lower court solely on the basis that it did not address the Former Wife’s request for fees, made in her response to a petition to modify as well as in her written closing arguments after trial and the pretrial statement.  Because the Court below did not rule on fees or reserve on the issue, and did not grant rehearing as to that failure, the Fourth District Court reversed, citing the similar case of Harbin v. Harbin, 762 So. 2d 561 (Fla. 5th DCA 2000).

Third District Court of Appeals Defines the Standard

The Third District Court of Appeals issued its opinion today in Castillo v. Castillo, rejecting the appeal on the grounds that the lower tribunal’s unstated ruling was within its discretion.  In so doing, however, the 3d DCA succinctly and clearly spelled out the nature of the abuse of discretion standard.  Please excuse the block cite, but its worthwhile, in my opinion:

The trial court has broad discretion to use various available remedies to do equity between the parties to a dissolution proceeding. See Misdraji v. Misdraji, 702 So. 2d 1292, 1294 (Fla. 3d DCA 1997) (“It is a well recognized principle that appellate courts should not substitute their judgment for that of the trial court by reevaluating the testimony, and that the trial court must be upheld unless an appellant clearly shows that the trial court has abused its discretion.”). The remedies which may be used to accomplish this purpose include lump sum alimony, permanent periodic alimony, rehabilitative alimony, child support, special equity in property and
the award of exclusive possession of property. Canakaris v. Canakaris, 382 So. 2d 1197 (Fla. 1980). “Because these remedies are interrelated as part of an overall scheme, it is ‘extremely important that they also be reviewed by appellate courts as a whole, rather than independently.’” Guobaitis v. Sherrer, 18 So. 3d 28, 33 (Fla. 3d DCA 2009) (quoting Canakaris, 382 So. 2d at 1202). Where a decision is within the judicial discretion of the trial judge, as in determining the amount of alimony or child support, the standard for appellate review is abuse of discretion. Viewed as a matter of discretion, on appeal we can reverse only if no reasonable judge would have decided as this one did. See Canakaris, 382 So. 2d at 1203 (“If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness.”).

Court’s Own Investigation Causes Reversal

The Fourth District Court today reversed a finding of contempt in Albert v. Rogers, in part due to the Court’s modification of visitation without a pleading seeking that relief, as well as the Court’s decision to call the children’s school and speak to an unknown individual to check up on the testimony of the alleged contemnor.  Because of the independent investigation, the Fourth District also directed that the proceedings occur before a different Judge.

Florida Supreme Court Resolves Relocation Conflict

The Florida Supreme Court issued a revised opinion on February 10, 2011 in Arthur v. Arthur, weighing in on the conflict between the Second District Court's ruling in that case and the holdings of Sylvester v. Sylvester, 992 So. 2d 296 (Fla. 1st DCA 2008); Janousek v. Janousek, 616 So. 2d 131 (Fla. 1st DCA 1993); and Martinez v. Martinez, 573 So. 2d 37 (Fla. 1st DCA 1990). In a nutshell, the Second District approved a lower tribunal's order permitting relocation twenty months after the entry of the Final Judgment, and the Supreme Court rejected the idea that a court is able to make a determination of best interest 20 months away, and required instead that "best interests determination in petitions for relocation must be made at the time of the final hearing and must be supported by competent, substantial evidence".