First District Court Reverses Child Support Modification

The First District Court of Appeal reversed the lower court today in Nabinger v. Nabinger, in so doing finding that the lower court erred in offsetting the Former Husband’s adjusted child support obligation by the amount of an adoption subsidy received by the Former Wife.  As the Final Judgment provided for the Former Wife to receive that subsidy without credit to the Former Husband, the First District found that the unrequested credit given to the Former Husband constituted a modification in his favor not requested in the pleadings.

First District Reverses Fee Award with no Factors

The First District Court ruled today in Luke v. Luke and both affirmed the reduction of alimony and reversed the fee award issued by the trial court.  The alimony reduction was not as substantial as the one sought by the appellant, but the trial court made sufficient findings, in the view of the First DCA, to justify the limited reduction.  The fee award, however, was not made with any indication of what factors were reviewed to determine whether the fees and hours were reasonable, and so it was remanded to the trial court to make those findings.

First DCA Reverses Modification and Fee Award

In Galligar v. Galligar, the First District Court of Appeal reversed a modification of alimony which reduced the former husband’s support obligation on the grounds that the modified amount still exceeded the former husband’s ability to pay, as it amounted to 81% of his net monthly income, and on the ground that the order that he pay a portion of his former wife’s attorney’s fees was improper due to her own ability to pay.  While the trial court directed that the appellant could pay the alimony and attorneys’ fees from his assets, the First District rejected “the suggestion by the trial court that a party who is meeting a current alimony obligation is required to set aside additional funds to meet future alimony obligations, in anticipation of a potential loss of income.  The First District also found that, as each party was equally able to pay fees, it was error to make any award from one party to the other.

First District Court Affirms Modification of Support for Respite Care

The First District Court ruled today in Koslowski v. Koslowski, in so doing distinguishing that ruling from the Second District’s prior ruling in Kuttas v. Ritter, 879 So.2d 3 (Fla. 2d DCA 2004).  In that older case, the Second District allowed a modification of child support to provide for respite care expenses caused by the non-custodial parent’s move out of state and the need for child care for the parties’ teenage children as a result.  In Koslowski, the father argued that because he had not ceased exercising his timesharing, he could not be liable for such additional expenses.  The First DCA found that, as the expenses in this case were medical in nature, and as the exercise of timesharing was only one of many factors considered in Kuttas, the modification was appropriate.

Second District Reverses Default Disestablishment of Paternity

In Department of Revenue, o/b/o M.J.W. v. G.A.T., Jr., the lower tribunal granted a petition to disestablish paternity filed under Florida Statute 742.18 on the grounds that the Mother failed to produce the child for scientific paternity testing.  The Second District Court reversed that finding yesterday in an opinion published here, however, on the grounds that the lower court did not make a finding that the failure to produce the child was willful in nature.  While Section 742.18(7)(b) does in fact permit the lower court to grant the disestablishment of paternity based on a failure to appear for testing, that failure must be willful, and in the case on review the Mother was not provided with an opportunity to explain that failure.

Fifth District Court of Appeal Issues Monumental Opinion

The Fifth District Court of Appeal issued a 76 page opinion on Friday in the case of T.M.H. v. D.M.T..  In this landscape altering decision, the Court was presented with a case of first impression where two lesbian partners were the mothers of and joined in the raising of a minor child, who was borne by one after in vitro fertilization of the eggs of the other.  The lower court, in granting summary judgment finding that the Appellant had no legal rights to the child whatsoever, actually made clear that it was hoped that the ruling would be overturned.  And, despite a 43 page dissent offered by Judge C. Alan Lawson supporting the idea that the birth mother was the sole legal mother of the child in question, the Fifth District Court, Judge Sawaya’s detailed opinion found that both parents had legal rights to the child.  Not surprisingly, the Fifth District also certified to the Supreme Court as a question of great importance the following: 

Does application of section 742.14 to deprive parental rights to a lesbian woman who provided her ova to her lesbian partner so both women could have a child to raise together as equal parental partners and who did parent the child for several years after its birth render the statute unconstitutional under the Equal Protection and Privacy clauses of the Federal and State Constitutions?

However you respond to this ruling, there can be no question that it will require the Courts of this State to address issues of first impression that will shape the way the law is applied for years to come.

Second District Reverses Alimony and Equitable Distribution Awards

The Second District Court of Appeal ruled yesterday in Zambuto v. Zambuto, reversing the lower court’s ruling on two grounds.  The District Court first reversed because, despite stating an intention to do so, the Court did not attribute any earning capacity to the Former Wife to offset the alimony award made to her.  In addition, that Court found error in the lower tribunal’s distribution of dissipated funds to the Former Husband without a finding of misconduct on his part, and for a time period prior to the inevitable breakdown of the marriage.