Weekly Law Update on Florida Divorce & Child Custody Cases

Weekly summaries of decisions made by Florida Court of Appeals on actual divorce, child custody, child support and alimony cases.

Florida Divorce & Family Law Update for Week Ending April 19, 2015

April 21, 2015

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:             Putzig v. Bresk
Court:            Fourth District Court of Appeal.
Trial Judge: Michael G. Kaplan.
Attorneys: Richard F. Della Fera.
Issues:            Dating Violence.

Holding:    Florida statute requires a full hearing before entry of permanent injunction against dating violence. A full evidentiary hearing includes direct examination of witnesses, cross-examination of witnesses, and the presentation of any other evidence. A trial court abuses its discretion when it denies parties to a petition for a dating violence injunction the opportunity to call witnesses, present evidence, or cross-examine witnesses. In this case, the trial court violated due process rights by not affording both parties the opportunity to do so. The appeals court reversed and remanded for a hearing.

Case:              B.K. v. D.C.F.
Court:             Fourth District Court of Appeal.
Trial Judge: Hope Bristol.
Attorneys:     Lori D. Shelby, Pamela Jo Bondi, Carolyn Schwarz, Patricia Murphy Propheter.
Issues:            Termination.

Holding:   A parent has a fundamental liberty interest in the care, custody and companionship of his child. The only limitation on this right is the ultimate welfare of the child itself. To terminate a parent’s rights in his or her child, the state must first meet the statutory requirements to prove a statutory ground for termination and prove that termination is in the manifest best interest of the child. Then, to satisfy constitutional concerns, it also must prove that termination is the least restrictive means to protect the child from serious harm. The state must present clear and convincing evidence to support each element. Florida statute further provides that incarceration, or expected incarceration, for a significant portion of the child’s minority is a ground for termination.

In this case, the trial court did not err given that the Biological Father would have been incarcerated for nearly fifty percent of the child’s life. This, combined with the fact that the child was currently in foster care and the fact that Biological Father could not take custody of the child for several years, weighed in favor of termination.

Case:              Broga v. Broga
Court: First District Court of Appeal.
Trial Judge: Karen Gievers.
Attorneys:      Emilian “Ian” Bucataru, Marilyn K. Morris.
Issues:            Alimony, Child Support.
Holding: Imputing income is a two-step analysis: (1) the determination of whether the parent’s underemployment is voluntary; and (2) if so, the calculation of imputed income. Florida statute provides that monthly income shall be imputed to an unemployed or underemployed parent if the court finds such unemployment or underemployment is voluntary. The employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available. The same factors are applied for awards of child support and of alimony.

Given the uncertain nature of future employment, a court must make particularized findings regarding work history, occupational qualifications, and the current job market in the community. Failure to do so results in reversal. The prevailing income ‘in the community,’ not income that could have been earned from a relocation, is to be used.

In this case, the trial court erred in imputing income as the evidence of (1) the former husband’s occupational qualifications and (2) the prevailing earning level in the community was sparse and conflicting. Also, while there was no dispute concerning the Former Husband’s past work history, reliance on this factor alone was insufficient to impute income. While there were sufficient findings and competent substantial evidence of the Former Husband’s prior earnings, the same could not be said regarding the Former Husband’s occupational qualifications and the prevailing earning levels for similar positions within the relevant community. The appeals court reverse and remanded for the trial court to further address imputation of income.

Case:              Harris v. Harris
Court:             Fifth District Court of Appeal.
Trial Judge: Heather L. Higbee.
Attorneys:     Jeffrey A. Conner.
Issues:            Alimony, Attorney’s Fees.

Holding:   A trial court’s use of different standards for calculating each spouse’s income is an abuse of discretion. Courts properly impute income from a second job or secondary source where record evidence clearly reveals that such secondary income has been earned on a recurrent or steady basis. As for attorney’s fees, evidence is required to establish the claim. In this case, the trial court erred when it considered Former Husband’s secondary sources of income while ignoring Former Wife’s. The error was in its failure to consider her secondary income when there was sufficient evidence to demonstrate that she was able to earn a recurrent and steady secondary salary, in addition to working full-time. There was no abuse of discretion in the trial court’s decision to impute the minimum wage for a full-time workweek. The trial court also erred in awarding Former Wife attorney’s fees, as no evidence supported the reasonableness of the fee award. The appeals court remanded.

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Florida Divorce & Family Law Update for Week Ending April 12, 2015

April 14, 2015

Case:              Liberatore v. Liberatore
Court:            Fifth District Court of Appeal.
Trial Judge: Bob Leblanc.
Attorneys:     Robin I. Bresky, Cynthia Greene.
Issues:            Equitable Distribution.

Holding:      On remand, a lower court must strictly follow the instructions of an appellate court. Typically, when a lower court commits reversible error in valuing or distributing marital assets, the entire distribution plan must be reversed and reconsidered on remand. This is because each division and distribution of a marital asset and liability is interrelated to form an overall scheme fair to both parties. However, in some instances, an error in an equitable distribution plan can be corrected in isolation; in those circumstances, an appellate court may direct the lower court to correct only that error in isolation. In this case the trial court erred in moving away from the instructions of the appeals court in reconsideration of equitable distribution. The trial court proceeded, at the request of the Former Husband, to address a post-judgment sale of the parties’ martial residence while reconsidering the distribution of the marital assets. The appeals court reversed and remanded for reconsideration of the entire equitable scheme.

Case:              M.N. Jr. v. D.C.F.
Court:             Fourth District Court of Appeal.
Trial Judge: Lawrence Mirman.
Attorneys:     Chet E. Weinbaum, Karla Perkins, Laura E. Lawson.
Issues:    Adoption.

Holding:    Florida Statutes (2013) provides that an action or proceeding of any kind to vacate, set aside, or otherwise nullify a judgment of adoption . . . may not be filed more than 1 year after entry of the judgment terminating parental rights. In this case, the trial court erred in dismissing a biological Father’s second motion to set aside the termination order in the adoption of his biological child on procedural grounds (ie: notice). In fact, the motion in issue was statute-barred as it was filed more than one year after the termination order was entered. The appeals court affirmed.

Case:              Ledoux-Nottingham v. Downs
Court:             Fifth District Court of Appeal.
Trial Judge: Bob LeBlanc.
Attorneys:      Jamie Billotte Moses, Leigh Anne Miller, Andrew T. Windle.
Issues:            Grandparent Visitation, Attorney’s Fees.

Holding:          Jurisdiction

A Florida court shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this part or the determination was made under factual circumstances meeting the jurisdictional standards of Florida laws. In this case, trial court did not err when it enforced the Colorado order determining visitation for the Grandparents after the Mother moved from Colorado to Florida. Since the Colorado order was a final judgment and emanated from a “child custody proceeding” within the meaning of Florida Statutes (2013), it became enforceable in Florida pursuant to the Full Faith and Credit Clause. Accordingly, the trial courts was required, without discretion, to give recognition to final judgments of another state.

Modification

A party seeking modification of a time-sharing schedule has the burden of proving (1) a substantial and material change in circumstances, and (2) that the best interests of the child will be promoted by such modification. The substantial and material change in circumstances must have occurred subsequent to the last order addressing time-sharing.    In this case, the trial court properly determined that there had not been a substantial and material change in circumstances during the 13 days between the entry of the Colorado order and the filing of Mother’s petition.

Make-Up Visitation

In such circumstances, a trial court is not necessarily precluded from ordering make-up visitation. On remand, the trial court was directed to promptly address the Grandparents’ motion for make-up visitation.

Attorney’s Fees

Florida States (2013) provides that if a court has personal jurisdiction over the party against whom attorney’s fees are being assessed, the court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including attorney’s fees unless the party from whom fees are sought establishes that the award is clearly inappropriate. In this case, the trial court erred in summarily denying the Grandparents’ request for attorney’s fees, because it did not consider whether assessing attorney’s fees against Mother would be “clearly inappropriate.” On remand, the trial court was directed to make specific findings as to the entitlement to attorney’s fees.

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Florida Divorce & Family Law Update for Week Ending April 5, 2015

April 8, 2015

Case:               Horowitz v. Horowitz
Court:             Second District Court of Appeal.
Trial Judge: Jalal Harb.
Attorneys:      Rafael J. Echemendia.
Issues:            Injunction for Protection Against Domestic Violence.
Holding:         Cyberstalking is a form of domestic violence against which a person may
obtain an injunction. The petition for injunction must be supported by competent, substantial evidence. Florida law defines cyberstalking as engaging in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person,
causing substantial emotional distress to that person and serving no legitimate purpose.

Unlike email communication, posts to one's own Facebook page are not directed at a specific person but are instead posted for all of the user's Facebook "friends" to see, depending on a user's privacy settings. “Hacking” into a Facebook account is not cyberstalking at it is not an electronic communication. A Petitioner must also show sufficient emotional distress related to the conduct complained of.

In this case, the trial court erred in granting the petitioner an injunction against the Respondent for cyberstalking because there was insufficient evidence regarding the specific elements of the offence.

The Respondent’s Facebook posts were not "directed at a specific person". The evidence showed he had posted the questionable comments to his own Facebook page and the Petitioner was neither tagged nor identified. The pertinent allegations of the Respondent’s “hacking” into Petitioner’s account were insufficient insofar as hacking is not cyberstalking. Finally, although she testified that the posts were a concern, the Petitioner failed to establish she suffered substantial emotional distress as a result. The appeals court reversed.

Case:   A.S. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: Kathleen J. Kroll.
Attorneys:     Frank A. Kreidler, Rosemarie Farrell, Jorge Anton, Patricia M. Propheter.
Issues:           Termination of Parental Rights.

Holding:        Florida statutes establish that: a) the termination of parental rights because of abandonment must be based on clear and convincing evidence; b) a prospective parent cannot be determined to have abandoned his child until paternity is established; c) the DCF must make good faith efforts to reunification; and e) establish that termination is the least restrictive means of protecting a child from harm. Specifically, DCF must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child.   The trial court must make a specific inquiry when the identity or location of a parent is unknown and a petition for termination of parental rights has been filed. The trial court must direct the DCF to conduct a diligent search for the prospective parent if the prospective parent’s location is unknown. When such a search fails to locate a prospective parent, then DCF can proceed with a petition for termination of parental rights.

In this case, the trial court erred in ordering termination against the Father in the absence of clear and compelling evidence. The trial court erred further as it determined he abandoned the child based on inquiries of conduct prior to paternity being established. Finally the trial court erred in ordering termination when there was no evidence that reunification was not possible and that termination was the least restrictive means available to protect the child from harm.

Case:              Ledoux-Nottingham v. Downs
Court: Fifth District Court of Appeal.
Trial Judge: Bob LeBlanc.
Attorneys: Jamie Billotte Moses, Leigh Anne Miller, Andrew T. Windle.
Issues:            Grandparent Visitation, Attorney’s Fees.
Holding:         Jurisdiction

A Florida court shall recognize and enforce a child custody determination of a court of another state if the latter court exercised jurisdiction in substantial conformity with this part or the determination was made under factual circumstances meeting the jurisdictional standards of Florida laws. In this case, trial court did not err when it enforced the Colorado order determining visitation for the Grandparents after the Mother moved from Colorado to Florida. Since the Colorado order was a final judgment and emanated from a “child custody proceeding” within the meaning of Florida Statutes (2013), it became enforceable in Florida pursuant to the Full Faith and Credit Clause. Accordingly, the trial courts was required, without discretion, to give recognition to final judgments of another state.

Modification

A party seeking modification of a time-sharing schedule has the burden of proving (1) a substantial and material change in circumstances, and (2) that the best interests of the child will be promoted by such modification. The substantial and material change in circumstances must have occurred subsequent to the last order addressing time-sharing.    In this case, the trial court properly determined that there had not been a substantial and material change in circumstances during the 13 days between the entry of the Colorado order and the filing of Mother’s petition.

Make-Up Visitation

In such circumstances, a trial court is not necessarily precluded from ordering make-up visitation. On remand, the trial court was directed to promptly address the Grandparents’ motion for make-up visitation.

Attorney’s Fees

Florida States (2013) provides that if a court has personal jurisdiction over the party against whom attorney’s fees are being assessed, the court shall award the prevailing party, including a state, necessary and reasonable expenses incurred by or on behalf of the party, including attorney’s fees unless the party from whom fees are sought establishes that the award is clearly inappropriate. In this case, the trial court erred in summarily denying the Grandparents’ request for attorney’s fees, because it did not consider whether assessing attorney’s fees against Mother would be “clearly inappropriate.” On remand, the trial court was directed to make specific findings as to the entitlement to attorney’s fees.

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Florida Divorce & Family Law Update for Week Ending March 29, 2015

March 31, 2015

Case:              W.W. v. D.C.F.
Court:             First District Court of Appeal.
Trial Judge: Not Stated.
Attorneys:      Randi E. Dincher, Kelley Schaeffer, Ward L. Metzger.
Issues:            Appellate Jurisdiction.

Holding:       Pursuant to recent amendments to Florida Rules of Appellate Procedure, a post-dependency order on an authorized motion that fully resolves the issues raised by the motion is reviewable as a final order. An appeals court can properly review a post-dependency final order by appeal rather than by petition for writ of certiorari.

Case:              Clark v. Clark
Court:             First District Court of Appeal.
Trial Judge: Not Stated.
Attorneys:      Michael J. Korn, David A. Garfinkel, William S. Graessle, Jonathan W. Graessle.
Issues:            Procedure.
Holding:         In order to decide whether a motion to disqualify is legally sufficient, a
determination must be made as to whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial. Adverse rulings are insufficient to show bias. In this case, the trial court did not err when it issued a supplemental final judgment discounting the credibility of the Petitioner’s witness and tracking the language of the Respondent’s proposed supplemental final judgment. Purported statements made by the trial court to the Petitioner’s witness were insufficient to show bias particularly as the trial court also noted that it was a difficult case and that one proposed order had to be selected over the other.

Case:             Wade v. Wade
Court:            Third District Court of Appeal.
Trial Judge: George A. Sarduy.
Attorneys:      Lisa Marie Macci, Evan R. Marks, Carolyn W. West.
Issues:            Parenting, Custody.

Holding:       Where the issues on appeal arise from a final post-judgment order on time-sharing and custody and pertain to whether the trial court contradicted and impermissibly modified the terms of a Final Custody Judgment (“FCJ”), then the standard of review is dual. The appeals court’s assessment of whether a trial court has modified a FCJ is a de novo review; while the trial court’s findings of fact and rulings based on the evidentiary record are reviewed under the abuse of discretion standard. Simply because parties have the resources to frequently appeal adjustments of time-sharing, it does not follow that every such adjustment warrants the comprehensive appellate review accorded a substantive post-judgment modification. Parties should rely on the parenting coordination provisions of an FCJ as they were intended to offer a path of confidentiality and non-judicial resolution for the benefit of the children and the parties. In this case, the trial court’s adjustments to certain notice provisions of the FCJ were not modifications. The procedural aspects and logistics of parenting, access and other related matters, and the consequences of non-compliance, are ordinarily within the discretion of the trial judge. The appeals court affirmed the trial court’s order on the time-sharing provisions.

Case:   Marchek v. Marchek
Court:             Second District Court of Appeal.
Trial Judge: Elisabeth Adams.
Attorneys:      Matthew P. Irwin, Sam R. Assini.
Issues:            Equitable Distribution.

Holding: A trial court’s valuation of the business income in a property distribution, and the determination of an equalizer payment, must be based on competent, substantial evidence. For the purpose of determining the amount of income that is attributable to a spouse in computing alimony, Florida Statutes (2010), defines "income" as any payment to an individual, no matter what the source, and includes wages, salary, commissions and bonuses, compensation as an independent contractor, various benefits, and dividends and interest. In calculating a party's monthly income, business expenses must be deducted from the party's gross income. A trial court can consider any source of income but it cannot hypothesize amounts or use gross income amounts. In this case, the trial court erred in determining equitable distribution and an equity payment based on income figures that were not otherwise supported by the record. The appeals court we reversed that portion of the final judgment of dissolution.

Case:              R.W. v. D.C.F.
Court:             First District Court of Appeal.
Trial Judge: Karen A. Gievers.
Attorneys:      M. Linville Atkins, Dwight O. Slater, Kelley Schaeffer.
Issues:            Termination.

Holding:       A surrender of parental rights may only be set aside if the court finds that the surrender was obtained by fraud or duress. To invoke an appeal court’s jurisdiction to review an order of termination of parental rights, a notice of appeal must be filed within 30 days of rendition of the order. In this case, the trial court erred in denying the petitioner Mother’s post-judgment motion to set aside the surrender of her parental rights. An order denying a motion for relief from judgment is an appealable non-final order. In this case the trial court did not err in denying the motion to appeal the final order of parental termination as the petition was not filed or drafted properly and in a timely fashion. Absent an appeal of the order on the motion for relief from judgment, an otherwise unpreserved issue raised in a post-judgment motion is not to be considered in the appeal of the underlying judgment. The appeals court dismissed the appeal as it sought to review the trial court’s ruling on the mother’s post-judgment motion to set aside the surrender of her parental rights, which was not prepared and filed properly. The appeals court affirmed the final judgment terminating the mother’s parental rights to the child.

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Florida Divorce & Family Law Update for Week Ending March 22, 2015

March 24, 2015

Case:              Kobe v. Kobe
Court:             First District Court of Appeal.
Trial Judge: John L. Miller.
Attorneys:      Ross A. Keene, E. Jane Brehany.
Issues:            Alimony.

Holding: When a court awards more alimony than requested without sufficient findings in the final judgment to support the increased award, the award must be reversed and remanded for further proceedings. In this case, the trial court erred when it awarded alimony, both before and after the sale of the marital home, which, when coupled with the amount of income imputed to the Former Wife, exceeded her stated need. Further the trial court made no findings to support this award. In addition, while there was ample evidence that the parties enjoyed a high standard of living during the marriage, there was little specific evidence in the record concerning the Former Wife’s expected expenses after the marital home sold, and the trial court did not make specific findings concerning this matter. The matter was reversed and remanded for further proceedings concerning the amount of alimony needed by the Former Wife.

Case:   Hair v. Hair
Court:             Fourth District Court of Appeal.
Trial Judge: Timothy P. McCarthy.
Attorneys:      Michael L. Cohen.
Issues:            Domestic Violence Injunction.

Holding: Florida Statutes provide that a family or household member may file a petition for protection against domestic violence if that person is either the victim of domestic violence as defined under statute or has reasonable cause to believe he or she is in imminent danger of becoming the victim of any act of domestic violence. Domestic violence is any assault, including but not limited to, aggravated assault, battery, sexual assault, stalking, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member. To determine whether the victim’s fear of imminent domestic violence is reasonable, the trial court must consider the current allegations, the parties’ behaviour within the relationship, and the history of the relationship as a whole. In this case, the trial court erred in granting the injunction when the petitioner failed to present sufficient evidence that she was a victim of domestic violence or was in imminent danger of becoming a victim of domestic violence. The appeals court reversed the final judgment of injunction for protection against domestic violence.

Case:              Polcz v. Polcz
Court:             Fourth District Court of Appeal.
Trial Judge: Timothy P. McCarthy.
Attorneys:      E. Ross Zimmerman, Doreen Inkeles.
Issues:            Alimony.

Holding: The mathematical findings behind a modification order must support the court’s final decision as to a reduction in arrearages. In this case, the trial court erred insofar as within the modification order, the amount of alimony arrearages purportedly owed was inconsistent with the findings regarding the amount of alimony paid. Although the trial court may have had some other compelling reason for eliminating arrearages owed by the Former Husband, it was not apparent in the modification order. The appeals court reversed and remanded for clarification of arrearages.

Case:              K.K. v. D.C.F.
Court:             Second District Court of Appeal.
Trial Judge: Emily A. Peacock.
Attorneys:     Jennifer S. Paullin, Pamela Jo Bondi, Meredith Hall.
Issues:            Dependency, Certiorari.

Holding: To be entitled to certiorari relief, the petitioner must show that the trial court's order departs from the essential requirements of the law and results in material harm that cannot be corrected on post-judgment appeal. The question of whether the order results in material harm that cannot be corrected on post-judgment appeal constitutes a jurisdictional test, while the question of whether the order departs from the essential requirements of the law constitutes a decision on the merits. It is improper, and a denial of due process, for a court to order relief not requested in any of the pleadings. As a general rule, case plan tasks and related activities imposed on parents and children must be meaningful and designed to address the facts and circumstances upon which the court based its determination regarding dependency, or, in some circumstances, a no-contact order. Further, those tasks must be the least intrusive possible into the life of the parent and child, must focus on clearly defined objectives, and must provide the most efficient path to quick reunification or permanent placement given the circumstances of the case.

In this case, the trial court erred when it ordered the dependent children undergo therapeutic assessments in connection with the denial of the Mother's motion to amend a safety plan which prohibited her current husband, from having any contact with the children - his stepchildren. (In previous proceedings, the current husband, stepfather, was not a party per the statute. The trial court therefore entered a no-contact order as between him and the children.) Any error in requiring the children to undergo therapeutic assessments results in material harm that cannot be corrected on pos-tjudgment appeal. Once the children undergo the assessments, the damage is done. The trial court's ruling departs from the essential requirements of the law in two ways. First, the ruling denied the Mother due process by ordering relief not requested in any of the pleadings. Neither the Mother nor the Department nor the Guardian ad Litem requested further assessments of the children in connection with this motion. The entry of an order imposing conditions about which the parents had no notice or opportunity to be heard violates due process. Requiring the children undergo therapeutic assessments which are unrelated to the reasons that resulted in the initial dependency (or, here, the no-contact order) is neither meaningfully designed to address the circumstances that brought them into care nor the least intrusive means possible to protect them. The appeals court quashed that portion of the dependency order.

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Florida Divorce & Family Law Update for Week Ending March 15, 2015

March 16, 2015

Case:             Cheek v. Hesik
Court:            First District Court of Appeal.
Trial Judge: A. C. Soud, Jr..
Attorneys: William S. Graessle, Jonathan W. Graessle.
Issues:           Process.

Holding:        If a trial court issues an order adjudicating an issue not presented by the parties, or the pleadings, due process is infringed. The order, therefore, departs from the essential requirements of law. Further, where there has been no pleading requesting modification, then the modification of a judgment constitutes a jurisdictional defect. In this case, the trial court erred when it temporarily suspended the Former Husband’s one-half obligation toward travel costs and ordered that all timesharing less than four days in duration occur in the vicinity of his residence when such issues were neither properly raised by the pleadings nor set for hearing. In doing so, the Former Wife’s due process rights were violated. The appeals court reversed and remanded with instructions to vacate those portions of the order.

Case: Solache v. Ibarra
Court: Third District Court of Appeal.
Trial Judge: Valerie R. Manno Schurr.
Attorneys: Harvey D. Rogers, Nory Diaz, Nancy A. Hass.
Issues: Child Support, Contempt.

Holding: Prospective Increase in Alimony: It is improper for a trial court to grant a final judgment which provides for an automatic prospective increase in alimony in the absence of specific factual findings, or the failure to articulate any reason, for same.

The trial court erred, however, with regards to the provision in the final judgment that, upon the child of the marriage reaching the age of majority (and the termination of child support payments), the monthly alimony payments to Former Wife would automatically increase. The final judgment failed to make any specific factual findings, or articulate any reason, for such an automatic prospective increase in alimony. The appeals court concluded it was error to provide for this automatic increase, affirmed the contempt order and reversed that portion of the final judgment providing for an automatic increase in alimony.

Contempt Order

An initial determination of a support obligation by a trial court, which must be supported by competent substantial evidence, creates a presumption of a payor’s ability to pay. At a contempt hearing, it is open for a trial court to determine whether a payor alleged to have defaulted on such obligations, has overcome this presumption. The trial court must, on competent substantial evidence, determine that the payor has the present ability to pay and failed or refused to comply with the support order to pay.

In this case, the trial court did not err with regard to the trial court’s contempt order. The final judgment was predicated upon an affirmative finding of the Former Husband’s ability to pay the support amount ordered. This initial determination, which was supported by competent substantial evidence, created a presumption of the Former Husband’s ability to pay. The trial court’s determination, at the contempt hearing, that former husband failed to overcome this presumption, had the present ability to pay, and failed to comply with this order, was also supported by competent substantial evidence.

Case:              M.P. v. D.C.F.
Court: Fourth District Court of Appeal.
Trial Judge: James Martz.
Attorneys:     Antony P. Ryan, Paulina Forrest, Rosemarie Farrell.
Issues: Process.

Holding:         Dependency Order

Courts are duty-bound to ensure that their dependency orders reflect only facts proved by competent, substantial evidence presented at the dependency hearing.

In this case, the trial court erred when it included, as a factual basis for the dependency, verbatim from the “prior history” summaries of call-out investigations that were set forth in the dependency petition, being uncorroborated reports not supported by evidence at trial. The appeals court affirmed the overall order but remanded with instructions for the trial court to strike the unsupported findings from its orders.
Random Drug Testing

A court may order a parent to submit to a mental or physical examination in circumstances where (1) the parent has requested custody of the child, (2) the parent’s mental or physical condition is in issue, and (3) there is good cause shown for the examination. An mental or physical examination may be ordered any time after a shelter petition or petition for dependency is filed and the mental or physical condition of a parent, caregiver, legal custodian, or other person who has custody or is requesting custody of a child, is in issue. A qualified professional must conduct the examination. Such matters, including a case plan, must be considered by the court having regard to whether the plan is meaningful and designed to address facts and circumstances upon which the court based the finding of dependency.

In this case, the trial court erred in requiring the Father to submit to random drug testing. While the Father sought custody, and the dependency petition alleged that the father had a criminal history of drug possession, sufficient to place the issue of his substance use in issue, the trial evidence did not show that he abused drugs. There was also no evidence at trial regarding the Father’s alleged arrest for possession of drugs. The trial court relied, erroneously, on allegations of drug use, however this reliance fails to satisfy the good cause standard. Nor was there any showing that a substance abuse evaluation would meaningfully address the facts and circumstances which resulted in the adjudication of dependency as to the Father. The appeals court reversed for the trial court to strike the task of random drug testing from the Father’s case plan.

Case:              Dugan v. Dugan
Court:             Fifth District Court of Appeal.
Trial Judge: Shawn L. Briese.
Attorneys:     John N. Bogdanoff, Elizabeth Siano Harris.
Issues:            Alimony, Equitable Distribution, Attorney’s Fees.

Holding: An error on the face of a final judgment should be corrected. Findings related to alimony awards must have a proper evidentiary basis. A trial court must give its rationale, based on trial evidence, for a finding which forms part of the final judgment. In this case, the trial court erred in finding that all of Former Wife's medical expenses were entirely covered by Medicare, and entering such finding on the face of the judgment without sufficient rationale. Specifically, the trial court based its finding on what it described as the Former Husband's “uncontroverted testimony” notwithstanding that the Former Wife provided authority suggesting that she is responsible for Medicare premiums, deductibles, and noncovered expenses. The appeals court reversed on the issue of Former Wife's medical expenses and remanded.

Case:               McGarvey v. McGarvey
Court:             Fifth District Court of Appeal.
Trial Judge: Hubert L. Grimes.
Attorneys:      Brian J. Lee, William R. Alexander.
Issues:            Time-sharing, Child Support, Attorney’s Fees.

Holding:         In determining timesharing, a trial court must make an independent assessment of a timesharing arrangement that is in the best interests of the child or children. Such an assessment must be based on substantial cogent evidence. In this case, the trial court erred in finding that the parties had reached an agreement addressing, among other things, parenting, and ruled on timesharing and child support. The parties later conceded that no such agreement had been reached. The appeals court reversed the ruling on timesharing and, as a result, determined that child support may also need reconsideration.

Case:              Makaros v. Cichocki
Court:             Fifth District Court of Appeal.
Trial Judge: James H. Earp.
Attorneys:      Elizabeth Siano Harris.
Issues:            Adoption.

Holding:          Under Florida statute, jurisdiction of an adoption may be vested in the Florida courts by virtue of the fact that a child, or children, and the petitioner resided within the court's jurisdiction and the natural parent gave the required consent. An adoption proceeding is not barred merely because a competent court of another jurisdiction has validly exercised its authority by awarding custody of the child sought to be adopted when the court before whom adoption is sought otherwise has jurisdiction to proceed. A relative (ie: aunt, uncle or even grandparent) with visitation rights procured in a different state, is not necessarily entitled to notice of the stepparent adoption proceedings. The interest that entitles a person to notice of an adoption must be direct, financial, and immediate, and the person must show that he or she will gain or lose by the direct legal operation and effect of the judgment. A showing of an indirect, inconsequential, or contingent interest is inadequate, and a person with this indirect interest lacks standing to set aside a judgment of adoption.

n this case, the trial court did not err in determining that Florida was the child’s home state when the final judgment was entered. Even though the “Home State” Rule was raised as a ground in the appeals process, under the “Tipsy Coachman” Rule, the appeals court concluded that the resolution of the case did not turn on whether Florida was the “Home State” of the child under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”) at the time the court entered the adoption. Rather, regardless of whether Florida was the “Home State” of the child at the time the court entered the adoption, under Florida statute (as cited and relied on in Florida case law), the trial court had subject matter jurisdiction to enter the final judgment of adoption.

Here, the Father had sole custody of the child at the time the petition for stepparent adoption was filed. Therefore, he was the only person required to consent to the adoption. Insofar as the Father had consented, the appeals court affirmed the trial court’s denial of the motion to set aside the final judgment of stepparent adoption.

Case:              Bristow v. Bristow
Court:             Fifth District Court of Appeal.
Trial Judge: Michelle T. Morley.
Attorneys:
Issues: Injunction for Protection Against Domestic Violence.

Holding:        A petition for the dismissal of an injunction for protection against domestic violence must state a cause of action. It cannot make vague allegations. Rather, it must allege sufficient facts to show that a party has reasonable cause to believe he or she is in imminent danger of being a victim of domestic violence.

In this case the trial court did not err when it declined to set an evidentiary hearing regarding a petition filed by the Appellant on the grounds that the petition was deficient on the facts required to establish jurisdiction of the Florida courts pursuant to statute. The appeals court’s affirmance was without prejudice to the Appellant filing, if able to do so in good faith, a new, legally sufficient petition.

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