Below are summaries of recent decisions from Florida's appellate courts on Florida divorce and family law issues. Clicking on the case name allows you to view the appellate opinion described in the analysis below. These summaries are courtesy of Bruce Law Firm, P.A., a law firm limited to representation of clients in the mediation, litigation and appeals of Florida marital and family law matters. The firm also created and maintains the family law focused appellate resources website DivorceCourtAppeals.com.
Case: Cherry v. Viker
Court: First District Court of Appeal.
Trial Judge: Robert Wheeler.
Attorneys: M. Stephen Stanfield, Emilian “Ian” Bucataru.
Issues: Attorney’s Fees.
Holding: An award of attorney’s fees pursuant to Florida Statutes must be based on the need of the party seeking the fees and the ability of the other party to pay the fees, based on competent substantial evidence. Further, an award of temporary fees must be properly based on evidence to support the award because a temporary award does not create vested rights. In this case, the trial court erred as its order for temporary attorney’s fees to the Former Wife was not supported by competent, substantial evidence. Specifically, the trial court’s findings regarding the parties’ financial resources were not supported by evidence (only argument of counsel was presented at the hearing below). The trial court could not have properly determined the need of the party seeking fees or the ability of the other party to pay. The appeals court reversed.
Case: Bork v. Bork
Court: First District Court of Appeal.
Trial Judge: David Rimmer.
Attorneys: Ross A. Keene, Brian P. North.
Issues: Alimony.
Holding: In making an alimony award, a trial court’s award must be based on proper findings concerning the respective incomes of the parties, which must be based on proper record evidence. In this case, the trial court erred as it calculated the alimony award based on the Former Husband’s net income after it had been reduced by the amount of a prior, temporary alimony award to the Former Wife. The record therefore reflected a clear error in the financial information utilized by the trial court in setting the permanent alimony amount. Since the temporary alimony award was in place only until the final hearing, the Former Husband’s net monthly income should have been adjusted and increased by the temporary award amount before calculating the Former Wife’s alimony amount. The trial court’s finding concerning the former husband’s net monthly income was not supported by the evidence. The appeals court reversed and remanded.
Case: Trainor v. Trainor
Court: Fourth District Court of Appeal.
Trial Judge: Scott Suskauer.
Attorneys: Christine Deis, Jenna D. Wickenhauser, Kendrick Almaguer, Yvette B. Reyes.
Issues: Alimony, Attorney’s Fees.
Holding: The standard of review for an award of attorneys’ fees is abuse of discretion. While a trial court has broad discretion in making an award of temporary attorney’s fees, the trial court must make sufficient factual findings as to the reasonableness of the time expended and the hourly rates. In this case, the trial court erred when it failed to address the reasonableness of the Former Wife’s attorneys’ fees, regarding the number of hours expended and the hourly rate. The appeals court reversed and remanded.
Case: Brezault v. Brezault
Court: Fourth District Court of Appeal.
Trial Judge: Dennis D. Bailey.
Attorneys: May L. Cain.
Issues: Alimony.
Holding: Florida Statutes provide a specific, non-exhaustive list of factors for the court to consider in making such awards. While the nature and amount of an alimony award is in the discretion of the trial court, it must be supported by competent substantial evidence. Findings must be made regarding the statutory factors, based on the evidence. Absent special circumstances which do not appear in the judgment, an alimony award should not exceed a spouse’s need. In this case, the trial court erred in the amount of alimony awarded to the Former Husband as the decision was not supported by the evidence. Specifically, the recipient spouse’s need was not supported by competent substantial evidence. Further, the trial court failed to make the required findings to support the award. The appeals court reversed and remanded.
Case: Street v. Street
Court: First District Court of Appeal.
Trial Judge: Michael Flowers.
Attorneys: David A. Carroll, David J. Oberliesen, Tonya Holman.
Issues: Timesharing, Procedure.
Holding: A scrivener’s error on the final order can be grounds for reversal. In this case, the trial court erred as the final order erroneously reflected the timesharing split. The appeals court reversed the portions of the final order reflecting the (scrivener’s) error and remanded for recalculation of the Former Husband’s child support payment to reflect the appropriate timesharing split.
Case: Liguori, Jr. v. Liguori
Court: Second District Court of Appeal.
Trial Judge: John S. Carlin.
Attorneys: Kathryn F. Pugh, Bernard T. King.
Issues: Child Support, Alimony, Parenting.
Holding: Child Support
The court has discretion to award child support retroactive to the date when the parents no longer lived in the same household with the child. The standard of review for a trial court's imputation of income is whether competent substantial evidence supports it. A final judgment must allocate responsibility for the child/children's uncovered medical and dental costs if applicable. The court may adjust a child support award when the children spend a significant amount of time with the noncustodial parent.
In this case, the trial court erred when it recalculated the award of temporary child support to the extent it calculated the support from the date of filing the petition rather than the date the Former Husband moved out of the marital residence. Further, while the record supported imputation of income, the final judgment failed to allocate responsibility for the children's uncovered medical and dental costs and did not provide for the children's health and dental insurance. Finally, the trial court's calculation regarding the number of overnights allocated to each parent was incorrect. The appeals court reversed and remanded.
Timesharing
A trial court's timesharing plan must be affirmed if it is supported by competent substantial evidence. When forming a parenting plan, the trial court must consider the best interest of the child. In this case, the trial court did not err as the Former Husband did not ask the trial court to continue the plan that had been in place. Instead, he offered a timesharing proposal which the trial court declined but, instead, gave him a temporary plan with more after school time. There was no abuse of discretion in the trial court's decision not to adopt either parent’s proposal and set out a different schedule because the best interests of the children were considered. The appeals court affirmed.
Case: C.B. v. D.C.F.
Court: Fifth District Court of Appeal.
Trial Judge: Timothy R. Shea.
Attorneys: Aaron S. Baghdadi, Derek J. Angell, Rosemarie Farrell.
Issues: Termination, Abandonment.
Holding: An appellate court will affirm an order terminating parental rights if, upon the pleadings and evidence before the trial court, there was a theory or principle of law which would support the trial court's judgment in favor of termination. Abandonment under Florida Statutes requires strict findings of fact that there was, among other things, no contact between Parent and Child for a period of time. In this case, the trial court did not err in terminating parental rights because it was substantiated by the pleadings and evidence. However, the trial court erred in finding abandonment, because the record reflected the Mother regularly visited with the child, provided toys and clothing for the child, and the child appeared happy to see her during the scheduled visits. The appeals court affirmed as to termination and reversed as to the finding of abandonment.
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