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: Koch v. Koch
Court: First District Court of Appeal.
Trial Judge: Stanley H. Griffis, III.
Attorneys: S. Scott Walker.
Issues: Parenting.
Holding: Restrictions upon a noncustodial parent’s right to expose his or her child to his or her religious beliefs have consistently been overturned in the absence of a clear, affirmative showing that the religious activities at issue will be harmful to the child. However, Florida Statutes (2015) requires Florida courts to determine all matters relating to parenting and time-sharing of each minor child of the parties in accordance with the best interests of the child. Religiously-motivated behavior with an impact on a child’s welfare cannot be ignored. The welfare and best interests of the children must prevail. In this case, the trial court did not err in restricting parenting and timesharing of the parties’ children and, in particular, in its injunction of the Father discussing any religious matters with his children during visitation, as he used religion against the Mother. The Father’s use and/or leverage of religious views was abusive to the children. The appeals court affirmed.
Case: T.M. v. D.C.F.
Court: Second District Court of Appeal.
Trial Judge: James V. Pierce.
Attorneys: Ita M. Neymotin, David C. Chafin, Bernie McCabe, Leslie M. Layne.
Issues: Guardianship, Supervision.
Holding: Florida Statutes (2015) require a trial court placing child in a permanent guardianship to make specific considerations as to the child, the placement and the permanent guardian(s). The trial court’s order must be written and specify why the child's parents are not fit to care for the child and why reunification is not possible by referring to specific findings of fact. It must also give reasons why, among other things, a permanent guardianship is being established instead of adoption; specify the frequency and nature of visitation or contact between the child and his or her parents, grandparents and his or her siblings and order the permanent guardian not to return the child to the parent’s physical care and custody without the approval of the court. In this case, the trial court erred as its order placing the Mother’s children in permanent guardianship failed to make the findings required by law. Specifically, the trial court's order made no specific findings as to why the Mother was not fit to care for her children; why reunification was not possible; why the court ordered permanent guardianship rather than adoption; and it failed to order the permanent guardian not to return the children to her physical care and custody without approval of the court. The trial court did not conduct an evidentiary hearing on the motion for permanent guardianship and did not have before it competent and substantial evidence to support the findings. The appeals court reversed and remanded.
Case: M.S. v. D.C.F.
Court: Second District Court of Appeal.
Trial Judge: Emily A. Peacock.
Attorneys: Scott L. Robbins, Pamela Jo Bondi, Christopher Lumpkin, Mary Soorus, Laura E. Lawson.
Issues: Termination.
Holding: Florida Statutes (2014) provide that grounds for termination of parental rights may be established when the parent or parents engaged in conduct toward the child (or other children) that demonstrates continuing the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child. Florida Statutes also permits termination based upon incarceration if the court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and that termination is in the child's best interest. The trial court must consider to assist it with this determination: a. The age of the child. b. The relationship between the child and the parent. c. The nature of the parent's current and past provision for the child's developmental, cognitive, psychological, and physical needs. d. The parent's history of criminal behavior, which may include the frequency of incarceration and the unavailability of the parent to the child due to incarceration. e. Any other factor the court deems relevant. In this case, the trial court did not err in its denial of the Mother’s motion seeking a new adjudicatory hearing based upon the alleged ineffective assistance of her court appointed counsel. Although 4 of the 5 grounds found by the trial court for termination were not supported by competent, substantial evidence, the trial court was correct in its finding that it would be harmful to the child to continue the relationship with the Mother, an incarcerated parent, under Florida Statutes (2014). The appeals court affirmed.
Case: Guerra v. Guerra
Court: Second District Court of Appeal.
Trial Judge: Mary C. Evans.
Attorneys: Lisa P. Kirby.
Issues: Attorney’s Fees.
Holding: It is error for a trial court to make prospective determinations purporting to decide whether support obligations will be dischargeable in bankruptcy. In this case, the trial court erred when it included in its order a provision characterizing the award of attorney's fees and costs as a form of support not dischargeable in bankruptcy or by any other means. The entry of the award was appropriate on the facts, but prospective determinations purporting to decide whether support obligations will be dischargeable in bankruptcy are improper. The appeals court reversed the relevant portion of the order and remanded.
Case: N.G. v. D.C.F.
Court: Fifth District Court of Appeal.
Trial Judge: Timothy R. Shea.
Attorneys: David B. Falstad, Rosemarie Farrell, Richard S. Dellinger.
Issues: Termination.
Holding: If a trial court terminates parental rights, it shall enter a written order of disposition briefly stating the facts upon which its decision to terminate the parental rights is made. In this case, the trial court erred as the final judgment terminating the Mother’s parental rights did not contain the findings of fact required by law. The appeals court reversed and remanded.
Case: B.R. v. D.C.F.
Court: Fifth District Court of Appeal.
Trial Judge: Timothy R. Shea.
Attorneys: Aaron S. Baghdadi, Rosemarie Farrell, Richard S. Dellinger.
Issues: Termination.
Holding: If a trial court terminates parental rights, it shall enter a written order of disposition briefly stating the facts upon which its decision to terminate the parental rights is made. In this case, the trial court erred as the final judgment terminating the Mother’s parental rights did not contain the findings of fact required by law. The appeals court reversed and remanded.
Case: Coleman v. Bland
Court: Fifth District Court of Appeal.
Trial Judge: Sally D.M. Kest.
Attorneys: Carlton Pierce.
Issues: Equitable Division, Attorney’s Fees.
Holding: Equitable Distribution
In this case, the trial court did not err when it denied the Former Wife’s claims regarding the Former Husband’s pension, and prior appeals had resolved the matter. Specifically, the trial court was correct as the Former Wife’s claims were: (1) barred by res judicata as they could have been raised in a prior appeal; (2) beyond the scope of remand on a prior appeal; (3) beyond the scope of the pleadings; and (4) lacked justification or supporting evidence. The appeals court affirmed.
Attorney’s Fees
The trial court erred in finding that the Former Husband was unable to pay appellate attorney’s fees. This finding contradicted its prior attorney’s fee award without any additional evidence or hearing. It was also unsupported by the record showing a large disparity in the parties’ incomes and the fact that the Former Wife prevailed on the significant issue on appeal and filed a timely motion for costs. The appeals court reversed and remanded.
Case: D.R. & D.C.F. v. J.R., S.R., D.R. & G.A.L.
Court: Fifth District Court of Appeal.
Trial Judge: Susan W. Stacy.
Attorneys: H. Kyle Fletcher, Jr., Rosemarie Farrell, Eddie J. Bell, Heather Morcroft, Sara E. Goldfarb.
Issues: Dependency, Guardianship.
Holding: The standard of review for a question of law in dependency proceedings is de novo. The Interstate Compact on the Placement of Children (ICPC) applies to out-of-state placements with natural parents. The ICPC was to ensure that a child is placed in a suitable environment. Once a court has legal custody of a child, it would be negligent to relinquish that child to an out-of-state parent without some indication that the parent is able to care for the child appropriately. In this case, the trial court erred in failing to comply with the requirements of the ICPC when it placed two of the parties’ minor children in the Father's custody (removing them from the Mother’s custody after issues of violence and abuse), in Massachusetts, without complying with the ICPC. However, the children were not required to be immediately returned to Florida. The appeals court reversed the portion of the final order terminating the trial court’s jurisdiction and remanded with instructions for the trial court to determine whether it would be in the children’s best interest for them to remain in the father's custody pending the completion of the ICPC process.
Case: Clemens v. Clemens
Court: Fifth District Court of Appeal.
Trial Judge: Dawn D. Nichols.
Attorneys: Mark A. Skipper.
Issues: Alimony.
Holding: Permanent alimony is used to provide for the needs and necessities of life for a former spouse as they were established during the marriage of the parties. For long-term marriages, an initial presumption in favor of permanent alimony exists. The can be rebutted by sufficient evidence. In this case, the trial court did not err in its denial of the Former Wife’s rehabilitative alimony. However, the trial court erred (abused its discretion) in denying her permanent alimony, specifically, when it found that she did not have a need for alimony based on the figures set forth in her most recent financial affidavit (based on her current living arrangements, where she was renting a single room in a friend’s residence). The trial court should have considered the necessities as they were established during the marriage of the parties. Further, as this was a long term marriage (19 years), there was an initial presumption of permanent alimony which the Former Husband did not rebut on the evidence. The appeals court reversed and remanded.
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