First District Court Reverses Fee Award

The First District Court of Appeal reversed today in Shawfrank v. Shawfrank, a case in which the Appellant, the Former Husband below, was ordered to pay substantial fees to the Appellee on the basis that his petition for modification of alimony was without merit.  The First District found that in fact they were unable to conclude that the Former Husband’s petition was wholly without merit, in that the record supported that the former husband had lost a source of income, and was depleting capital assets to pay alimony.  As such, because the suit was not wholly without merit, and because the parties were each able to pay their own fees, the award was reversed.

Second District Reverses Split of Medical Expenses

The Second District Court of Appeal reversed today in Weaver v. Weaver, a case in which the lower court had ruled that each party to the divorce would pay 50% of uncovered medical expenses as incident to child support.  The Appellant argued that the law in fact requires the court to divide those expenses according to each party’s pro rata share of the total income available for support, and the Second District Court agreed.

Fifth District Reverses Modification of Arrearages

The Fifth District Court of Appeal reversed today in Cortina v. Lorie, a case in which the lower court issued an order reducing the amount of child support arrearages due from the former husband.  The former husband alleged that he had been unable to pay support while in prison, that he had made some payments, and that there was a verbal modification of his obligation to pay while he was in prison.  The Fifth District, however, found that the inability to pay argument was waived by his failure to seek modification at the time of his incarceration, that he offered no evidence of payment while he was in prison, and that the trial court rejected the verbal modification argument.  None of these grounds were sufficient to warrant a reduction in arrearages.  The trial court, in fact, had ordered the reduction on the theory that only the Former Wife, and not the children, would benefit from repayment of the already vested arrearages.  The appellate court ruled that, even if this were a reason for modification, it was outside the scope of the pleadings or any matter tried by consent.

5th DCA Overturns Finding of Res Judicata

The Fifth District Court of Appeal ruled today in Fabre v. Fabre, reversing the lower court’s dismissal of a petition for paternity.  The petition had been dismissed as the child’s mother and her then husband’s final judgment of dissolution of marriage established paternity, and the lower tribunal found this to be res judicata as to any new request for determination of paternity.  The Fifth District found this was error, in that the purported father was not a party to that original divorce suit.  While the Appellee argued that the pleading was insufficient to state a case, the Fifth District pointed out that the Appellee was attempting to correct that error by amendment, and his action was dismissed instead.  The dismissal was reversed, and on remand, the lower court is mandated to permit the amendment.

Third DCA Reverses Order Granting Relief

The Third District Court of Appeal reversed today in Murphy v. Evans, a case in which the former husband’s counsel was repeatedly held in contempt and required to deposit fines into the court registry, but then granted relief from those orders and refunded his monies at a non-evidentiary hearing in response to an ex parte motion.  The Third District Court reviewed the attorney’s conduct and found that granting him relief from the fines was an abuse of the court’s discretion.

Fourth DCA Reverses Contempt Finding

The Fourth District Court of Appeal reversed the lower tribunal’s finding of contempt today in Holtz v. Holtz.  First and foremost, the Court found error in the lower court’s use of its contempt power to enforce an equitable distribution payment.  Second, as to the finding of contempt related to payment of support, the lower court made no finding that the alleged contemnor had the present ability to pay, and had willfully refused to comply with the prior order of the court.  Each of these required reversal.

First DCA Affirms Finding of Laches

In its ruling today in Martin v. Schmidth, the First District Court of Appeal affirmed the lower court’s finding of laches preventing the Former Wife from being held in contempt.  The Court affirmed in that the Former Husband had not preserved his arguments against the existence of a laches defense at the hearing below or in a motion for rehearing.