Third DCA Bars Spousal Recovery Based on Homestead Protection

In an unusual case, the Third District Court of Appeal ruled today in Kerzner v. Kerzner & Kerzner, and affirmed the lower tribunal’s ruling that a former spouse who had intervened in the divorce of her former spouse and his current wife could not recover on judgments for unpaid child support from the proceeds of a voluntarily sold home, on the basis that the Former Husband was entitled to homestead protection.

Second District Reverses Denial of Petition for Disestablishment of Paternity

The Second District Court of Appeal ruled today in P.G. v. E.W., in so doing reversing the lower tribunal’s denial of the Former Husband’s Petition to Disestablish Paternity.  In reversing, the Second District found first that a primary residential parent or a parent ordered to share in uncovered medical expenses qualifies as a “male ordered to pay child support” within the meaning of Florida Statute 742.18.  Next, the Court found that even a parent who perhaps should have suspected paternity was in question could raise DNA testing results as newly discovered evidence in support of a petition to disestablish.  And, in addition, the Court found that such a parent was not disqualified for any behavior suggested to violate F.S. 742.18(3) prior to receipt of the DNA results.  The Second District acknowledged the clear conflict as to this ruling between this case and Hooks v. Quaintance, 36 Fla. L. Weekly D2214 (Fla. 1st DCA October 6, 2011).  Finally, the Court rejected the idea that the primary residential parent continuing to exert parental authority was barred from seeking to disestablish that paternity.  The Second District expressly finds in closing that the 2006 statutory provisions permit a parent to seek this relief where it would have been barred in the past.

Fifth District Reverses for Failure to Honor Stipulation and Make Findings as to Rental Value

The Fifth District Court reversed today in Tuomey v. Tuomey, in so doing finding merit in two arguments raised by the former husband in his appeal of the final judgment of dissolution of marriage.  First, the Court neglected to include the parties’ stipulation as to contact between a relative and the minor children, and the Fifth DCA found this to be error, citing Johnson v. Johnson, 663 So.2d 663, 665 (Fla. 2d DCA 1995).  Next, the trial court was found to be in error for offsetting the Former Husband’s payment of expenses related to the former marital home pending its sale against its fair rental value without making any finding as to the amount of that rental value.  However, the Former Husband’s claim of error to the effect that the lower court distributed unvested stock options as a marital asset was rejected, as the record reflected on careful review that only vested options were distributed.

Third DCA Reverses Emergency Relocation Order

The Third District Court of Appeal reversed yesterday in Mata v. Mata, a case in which the lower tribunal had granted the appellee’s emergency motion to permit relocation of the parties’ minor child to North Carolina.  The lower court did not take evidence or testimony, but found based on argument and the pleadings that a temporary relocation would be permitted.  The District Court reversed on the basis that the lower court did not consider the factors in F.S. 61.13002(6)(b)(2) before granting the Mother’s motion for a temporary relocation.  The Court made no finding of a likelihood that the eventual relocation would be granted, and its failure to take testimony or evidence supporting the ruling was found unreasonable as well.

Support Order Reversed for Improper Deviation

The First District Court of Appeal reversed yesterday in D.O.R., ex rel Sherman v. Daly, finding that the lower court improperly deviated from the guideline support amount by using the “gross up” method for calculating support in a case where not the parenting plan, but rather the parties’ informal agreement, provided for substantially shared time-sharing between the parents.

Fourth District Reverses for Failure to Find Net Income

The Fourth District Court reversed the lower tribunal’s judgment granting a modification of child support in Capo v. Capo yesterday, finding that the lower court’s failure to make findings as to the net income of each party as a starting point for calculating child support was sufficient to require remand.

Retroactive Modification of Support Reversed

The Fourth District Court of Appeal issued an opinion yesterday in Escobar v. Escobar, in so doing reversing the lower court’s determination that a retroactive modification of child support back to the date of a 2004 Final Judgment was required.  The ruling below was based on conflicting statements in the Final Judgment as to whether the support was to be paid bi-weekly or semi-monthly.  The Fourth District found error in the lower tribunal’s essential overruling of a final, prior ruling that found no ambiguity in the Final Judgment’s determination of support, which was not appealed.  Error was also found in the Court’s review of issues not properly plead.