Second District Finds Appeal Untimely

The Second District Court of Appeal ruled yesterday in Gohary v. Gohary, dismissing the Former Husband’s appeal on the basis that it was untimely.  While the Former Husband argued that his Motion for Rehearing tolled the time for a Notice of Appeal to be filed, the Second District Court found that, as only temporary timesharing was ordered in the Final Judgment, it did not constitute a final order.  As the deadline for appealing a non-final order is not tolled by the filing of a Motion for Rehearing, the Former Husband’s appeal was not timely noticed, and was dismissed as a result.

Fourth District Reverses Paternity Determination Made at Case Management Conference

The Fourth District Court of Appeal ruled yesterday in Rodriguez v. Santana, in so doing reversing the lower tribunal’s ruling which made a final determination on a petition to determine paternity at a hearing noticed only for a case management conference.  In ruling that the Motion for Relief from Judgment directed to that determination should have been granted, the Fourth District Court cited Illanes v. Gutierrez, 972 So.2d 222 (Fla. 3d DCA 2007), which held that “Florida courts have repeatedly held that it is a violation of a parent’s due process rights for a court to modify visitation in a final judgment unless the issue of modification is properly presented to it by written pleadings, noticed to the parties, or litigated below.”

Third District Reverses Award of Private School Tuition

The Third District Court of Appeal ruled yesterday in Khutorsky v. Ilina, reversing as to one of the two issues raised on appeal.  In short, the District Court reversed an award which obligated the Former Husband to pay future private school tuition and related expenses in a case where the Former Wife had not sought that relief, or any affirmative relief whatsoever.  The Court cited McDonald v. McDonald, 732 So.2d 505, 506 (Fla. 4th DCA 1999) and Gelman v. Gelman, 24 So.3d 1281 (Fla. 4th DCA 2010) as support for this idea.

First District Court Affirms Temporary Custody Change

The First District Court released its Order on Rehearing today in Delivorias v. Delivorias, in which it continued to affirm the ruling by the lower tribunal which granted the Former Husband’s Motion for Contempt and also provided temporary relief on his counter-petition for modification of primary residential custody.  The First District ruled that the temporary order which moved the minor child from Louisiana to Florida was appropriate despite the lack of specific findings of fact in that the Former Husband had set out the correct test for changing custody, alleged supporting facts, and the trial court accepted those allegations.  In other words, the failure to include the “magic words” regarding the child’s best interests does not require reversal.

Second District Reverses for Denial of Due Process

The Second District Court of Appeal reversed today in Miranda v. Munoz-Ortiz, a case in which the lower tribunal granted sole time-sharing and sole parental responsibility to the Mother.  The Father, in prison, was granted the right to appear at the final hearing via telephone, but alleged that he was denied that right by the Court’s proceeding with the hearing earlier than scheduled, and the prison officials returning him to his dorm instead of allowing him to participate.  The lower tribunal ruled on rehearing that the “limitations and/or restrictions imposed on the Father as a result of his incarceration” were not matters within that court’s jurisdiction.  The Second District reversed on the basis that, at the very least, an evidentiary hearing was required to determine whether the Father had made all efforts within his control to attend the final hearing, as he is still entitled to due process in that action.

Fifth District Reverses Retroactive Modification

The Fifth District Court of Appeal reversed today in Buhler v. Buhler, a case where the Former Wife sought retroactive modification of support beginning with the date that the Former Husband ceased taking additional visitation he was awarded under a previous decree.  The lower tribunal granted the modification, but retroactive only to the date of filing of the petition seeking the modification.  The Fifth District reversed on the basis that it was mandatory that the retroactive modification begin on the date when visitation was found to have ceased.

First DCA Reverses for Not Following Mandate

The First District Court of Appeal, having previously reversed in Sullivan v. Hoff-Sullivan on the basis that the interpretation of the parties’ divorce agreement could not be re-litigated after a Georgia Court of competent jurisdiction had already entered orders interpreting it, reversed again today in an opinion released here.  On remand, the trial court again interpreted the parties’ agreement, established a new child support amount and retroactive arrearage, and as such the First District found that the mandate barring reinterpretation of the parties’ agreement had not been followed.