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 June 14, 2015

June 16, 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:              Ardis v. Ardis
Court:             First District Court of Appeal.
Trial Judge: T. Michael Jones.
Attorneys:      Nancy A. Daniels, Glenna Joyce Reeves, Pamela Jo Bondi, Michael McDermott.
Issues:           Protection Against Domestic Violence.

Holding:          A judgment of contempt is presumed correct on appeal and will not be
disturbed unless there is insufficient evidence in the record to support it. Indirect criminal contempt may be found for violation of a court order, but only if the order clearly and definitely advises the person of its command and direction. In this case, all of the malfeasance alleged in the Former Wife’s petition post-dated the entry in of a Dissolution of Marriage (DOM) Order. Here, the continued compliance by the Former Husband with the courteous conduct provision in the domestic violence order, after the court entered the DOM order, renders the appeals court unable affirm the criminal contempt judgment and sentence entered against the Former Husband based upon a wilful violation of that order. The appeals court reversed and remanded.

Case:              Heard v. Perales
Court:             Fourth District Court of Appeal.
Trial Judge: F. Shields McManus.
Attorneys:      E. Christopher DeSantis, Michael Rebuck.
Issues:           Child Support, Imputation.

Holding: In imputing income, the trial court engages in a two-step process. Firstly, the trial court must conclude that the termination of income was voluntary. Secondly, the trial court must determine whether the subsequent unemployment is the result of the Former Spouse’s pursuit of his or her own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received. The trial court must make factual findings as to both steps. The trial court must set also forth factual findings as to the probable and potential earnings level, source of imputed and actual income, and adjustments to income. The party claiming income should be imputed to the other party, on purported grounds of unemployment or underemployment, bears the burden of showing both that the other party is employable and that there is employment available to him or her.

In this case, the trial court properly engaged on the first step, as is it determined, on proper evidence, that the Former Wife lost her employment because of her particular conduct. Such finding was sufficient to support a conclusion that she was voluntarily unemployed. However, the trial court erred regarding the second step as it made no findings regarding the Former Wife’s diligence in seeking new employment. Nor did the evidence support a finding that her subsequent unemployment resulted from less than diligent and bona fide efforts to find employment as the Former Husband did not introduce evidence as to these issues. Given the lack of necessary findings and evidence, the appeals court reversed and remanded for a redetermination of child support.

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The Bruce Law Firm, P.A. is limited to the resolution of marital and family la w matters in Florida’s trial and appellate courts. The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts. The firm pays referral fees in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.

Florida Divorce & Family Law Update for Week Ending June 7, 2015

June 9, 2015

Case: Bisel v. Bisel
Court: Fourth District Court of Appeal.
Trial Judge: Laura M. Watson.
Attorneys: Kim L. Picazio.
Issues: Procedure, Child Support.

Holding: Florida law clearly holds that a trial court lacks jurisdiction to hear and to determine matters which are not the subject of proper pleading and notice. To allow a court to rule on a matter without proper pleadings and notice violates a party’s due process rights. In this case, the trial court erred in that the notice of hearing had several problems, the first of which is that the description failed to notify Former Wife that the trial court would consider and rule upon her supplemental petition for upward modification of child support. Secondly, the Former Wife did not receive timely notice of the hearing as it related to her supplemental petition. Finally, pursuant to Florida Family Law Rules of Procedure, the trial court (not the Former Husband) was required to enter an order setting the action for trial. The appeals court reversed and remanded for further proceedings.

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Matthew S. Nugent, Adam M. Zborowski & Christopher R. Bruce limit their practice to resolution of marital and family law matters in Florida's trial and appellate courts. The firm handles divorce litigation in South Florida and accepts referrals for appellate representation in all of Florida’s appellate courts. The firm pays referral fees in accordance with Florida Bar Rules for appellate matters, which are handled primarily on a fixed fee basis with a limited money back promise if the brief is not filed within 45 days of the firm receiving the transcript and record on appeal.

Florida Divorce & Family Law Update for Week Ending May 31, 2015

June 4, 2015

Case:               Winnier v. Winnier
Court:             Second District Court of Appeal.
Trial Judge: Amy M. Williams.
Attorneys:      Paul H. Bowen, David S. Ristoff, Jane H. Grossman.
Issues:            Alimony.

Holding:      A trial court must impute income reasonably projected for earnings on liquid assets awarded in property division. In this case, the trial court erred in failing to impute income to the Former Wife for earnings that could reasonably be projected based on her liquid assets, then, and without explanation, the trial court imputed such income to the Former Husband. The appeals court reversed and remanded for recalculation of the alimony amount.

Case:               Haywald v. Fougere
Court:             First District Court of Appeal.
Trial Judge: David Rimmer.
Attorneys:      Michael T. Webster.
Issues:             Attorney’s Fees.
Holding:          It is an abuse of discretion to grant fees where both parties are equally able to pay their own. Equalizing income through an alimony award and then awarding fees is an abuse of discretion. The court’s job is to determine whether one party has a need and the other has the ability to pay. In this case, the trial court erred in ordering the Former Husband to pay significant sums of both alimony and child support then failing to deduct such sums in assessing his ability to pay the Former Wife’s attorney’s fees. The Former Husband no longer has these funds available within his resources. Properly considered, the parties’ relative abilities to pay attorneys’ fees were, in this circumstance, essentially equal and an award of fees was an abuse of discretion. The appeals court reversed.

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Florida Divorce & Family Law Update for Week Ending May 24, 2015

May 27, 2015

Case:              Williams v. Williams
Court:             First District Court of Appeal.
Trial Judge: Kelvin C. Wells.
Attorneys:      Jerome M. Novey, Shannon L. Novey, Christin F. Gonzalez, John F. Greene.
Issues:            Equitable Distribution.

Holding:        A trial court’s fair market value determination of marital assets must be supported by competent, substantial evidence. Equalization payments and asset distribution must be supported by competent, substantial evidence and trial court must provide sufficient findings and documentation to allow the appellate court meaningful review. In this case, the trial court erred as it did not base its equitable distribution of marital assets and an equalization payment to the Former Wife on competent and substantial evidence. The error was such that the appeals court could not conduct meaningful review of the judgment at issue. The appeals court reversed and remanded those parts of the judgment which were erroneous.

Case:              Bronstein v. Bronstein
Court:             Third District Court of Appeal.
Trial Judge: Scott M. Bernstein.
Attorneys:      Liliana Loebl, Daniel Kaplan, Daniels Kashtan, Lorne E. Berkeley.
Issues:            Parenting, Procedure.

Holding:        To obtain a writ of certiorari, there must exist: (1) a departure from the essential requirements of the law; (2) resulting in material injury; (3) that cannot be corrected on postjudgment appeal. Further, a motion for modification of timesharing must be given notice of the hearing, and present the relief being sought. Specifically, it should be based, and established, on competent and substantial evidence, a material change in circumstances. Such a motion must also involve the taking of evidence and any order that arises should include factual findings. If an order grants relief of an emergency nature, there should be evidence of a true emergency (ie: that the minor child involved is at risk of harm or will be removed from the jurisdiction.)

In this case, the trial court erred in ordering a modification of the parties’ parenting plan on application by the Former Husband insofar as although the Former Wife was given notice of (and attended) the hearing in this matter, the Former Husband’s motion did not seek a modification of the timesharing arrangement, and Former Wife was not on notice that such relief was within the scope of the motion or the hearing. Further, the motion was unverified; the motion did not seek emergency relief; and the trial court did not take any testimony or rely upon any sworn evidence. There was nothing provided by Former Husband to establish a true emergency or to suggest that Child was being threatened with physical harm or about to be improperly removed from the State of Florida. There was nothing presented even to establish the existence of a substantial change of circumstances such that Child’s temporary relocation to Colorado pending the evidentiary hearing was warranted and in Child’s best interest. The court’s Order, which contained no factual findings, was based solely on argument from counsel and the unverified allegations in the Former Husband’s Motion. In rendering its emergency Order upon this basis, and scheduling the evidentiary hearing some four months later, the court departed from the essential requirements of the law, causing irreparable harm that cannot be remedied on post-judgment appeal.

The appeals court granted the Former Wife’s petition, issued the writ of certiorari, and quashed the impugned order below, with instructions that minor child be returned to Former Wife’s care and remanded for further proceedings.

Case: Edgar v. Firuta
Court: Third District Court of Appeal.
Trial Judge: Luis M. Garcia.
Issues: Parenting, Attorney’s Fees.

Holding: Florida procedural Rules authorize a court to permit testimony at a civil hearing or trial by audio or video communication equipment by agreement of the parties or for good cause shown on written request of a party and reasonable notice to all other parties. In this case, the trial court erred in denying the Mother’s petition to telephonically appear at the hearing addressing timesharing and related matters, because the Father objected. The Mother, who was unemployed and had not received child support for the parties’ four children from the Father, lived in North Carolina, had made her petition to appear via technological communications, some 2 months after the procedural rules were amended to so allow such appearance. The court below was not, therefore, barred from considering the mother’s request to testify by telephone simply because the father objected but could have allowed the testimony for good cause shown. The appeals court reversed.

Case:              Badgley v. Sanchez
Court:             Fourth District Court of Appeal.
Trial Judge: Steven B. Feren.
Attorneys:      J. Scott Gunn, Sue-Ellen Kenny, Scott D. Glassman.
Issues:            Equitable Distribution, Alimony.

Holding:         Equitable Distribution
Florida Statutes (2013), governing distribution of marital assets and liabilities, provides that the trial court must begin with the premise that the distribution should be equal and requires consideration and factual findings in the judgment regarding nine specified factors in assessing whether an unequal distribution is warranted. In this case, trial court erred in awarding a 60/40 distribution which was premised solely on the parties’ income and which failed to contain the factual findings required by statute.

Alimony

Florida Statutes (2013), authorizes the award of alimony, based on consideration of a variety of factors that the court shall consider in determining the amount and type. A trial court errs where it fails to make the findings required by statute. In this case, the trial court erred as the final judgment regarding alimony failed to reference the statutory provision and the relevant factors, despite the fact that some of the findings could be fairly read to correlate with the relevant factors. The appeals court reversed on both above issues.

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.
Issues:            Termination.

Holding:      Florida statute provides incarceration as a ground for termination. Specifically, under statute, termination may be ordered when the parent of a child is incarcerated and the period of time for which the parent is expected to be incarcerated will constitute a significant portion of the child’s minority. When determining whether the period of time is significant, the court shall consider the child’s age and the child’s need for a permanent and stable home. The period of time begins on the date that the parent enters into incarceration. In addition, the trial court must find that termination is in the manifest best interests of the child. In making this determination, Florida statute sets forth a list of non-exclusive relevant factors, including, but not limited to: (1) any suitable permanent custody arrangement with a relative; (2) the ability the parent to provide the child with food, clothing, medical care or other remedial care; (3) the capacity of the parent or parents to care for the child to the extent that the child’s safety, well-being, and physical, mental, and emotional health will not be endangered upon the child’s return home; and others. Finally, the Department must show, by clear and convincing evidence, that termination is the least restrictive means to prevent serious harm to the child. In this case, the trial court did not err as it considered the relevant factors and made the required factual findings. In so doing, the court found termination of parental rights was the least restrictive means of protecting the minor child from harm because the child had not seen the Father since tiny infancy and did not know him. The appeals court affirmed but remanded to the trial court to consider access between the Father and the minor child.

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Florida Divorce & Family Law Update for Week Ending May 17, 2015

May 19, 2015

Case:               Santos v. Santos
Court: Second District Court of Appeal.
Trial Judge: Amy Smith.
Attorneys:      Christine Greider, Justin C. Carlin, James W. Chandler.
Issues:             Parenting, Child Support.

Holding: The use of outdated financial information in calculating a child support towward can constitute reversible error. In this case, the trial court erred in its modification of the child support plan in the final judgment when it used outdated financial information from both the Former Wife and the Former Husband in calculating the amount of child support. The appeals court reversed the final judgment with respect to the child support modification and remanded for the trial court to reconsider the support award in light of the parties' updated financial information.

Case:               Robertson v. Robertson
Court: Fourth District Court of Appeal.
Trial Judge: Merrilee Ehrlich.
Attorneys:      John T. David, Rhoda Sokoloff.
Issues:             Injunction for Protection.

Holding:        Florida Statutes (2013), criminalizes a person who wilfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person. To harass, is to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose. This “course of conduct” includes “a series of acts over a period of time, however short, which evidences a continuity of purpose.” In this case, the trial court did not err in entering the injunction insofar as surveillance-based evidence showed three incidents, which were further verified by Appellant’s e-mail to Appellee admitting to being at her residence, established a course of conduct sufficient to support the trial court’s entry of the injunction against Appellant.

Case:               Plummer v. Forget
Court: Fifth District Court of Appeal.
Trial Judge: Dan Traver.
Attorneys:      Patrick Michael Megaro, Jennifer M. Manyen.
Issues:             Injunction for Protection.

Holding:          A person commits the act of stalking by wilfully, maliciously, and repeatedly following, harassing, or cyberstalking another person. To harass another person means to engage in a course of conduct directed at that specific person which causes substantial emotional distress to him or her and serves no legitimate purpose. A course of conduct is a series of actions, over a period of time, which evidences a continuity of purpose. Each incident of stalking must be proven by competent, substantial evidence. When evaluating whether competent, substantial evidence supports a trial court's ruling, legal sufficiency, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal. In determining whether each incident of harassment causing substantial emotional distress has been established to support a finding of stalking, courts use a reasonable person standard, not a subjective standard. In this case the trial court erred in entering the injunction for protection as the evidence was legally insufficient to support doing so. The appeals court reversed.

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Florida Divorce & Family Law Update for Three Weeks Ending May 10, 2015

May 12, 2015

Case:              Santos v. Santos
Court:             Second District Court of Appeal.
Trial Judge: Amy Smith.
Attorneys:     Christine Greider, Justin C. Carlin, James W. Chandler.
Issues:            Parenting, Child Support.

Holding: The use of outdated financial information in calculating a child support award can constitute reversible error. In this case, the trial court erred in its modification of the child support plan in the final judgment when it used outdated financial information from both the Former Wife and the Former Husband in calculating the amount of child support. The appeals court reversed the final judgment with respect to the child support modification and remanded for the trial court to reconsider the support award in light of the parties' updated financial information.

Case:              Robertson v. Robertson
Court:             Fourth District Court of Appeal.
Trial Judge: Merrilee Ehrlich.
Attorneys:     John T. David, Rhoda Sokoloff.
Issues:            Injunction for Protection.

Holding: Florida Statutes (2013), criminalizes a person who wilfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person. To harass, is to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose. This “course of conduct” includes “a series of acts over a period of time, however short, which evidences a continuity of purpose.” In this case, the trial court did not err in entering the injunction insofar as surveillance-based evidence showed three incidents, which were further verified by Appellant’s e-mail to Appellee admitting to being at her residence, established a course of conduct sufficient to support the trial court’s entry of the injunction against Appellant.

Case:              Plummer v. Forget
Court:             Fifth District Court of Appeal.
Trial Judge: Dan Traver.
Attorneys:      Patrick Michael Megaro, Jennifer M. Manyen.
Issues: Injunction for Protection.

Holding: A person commits the act of stalking by wilfully, maliciously, and repeatedly following, harassing, or cyberstalking another person. To harass another person means to engage in a course of conduct directed at that specific person which causes substantial emotional distress to him or her and serves no legitimate purpose. A course of conduct is a series of actions, over a period of time, which evidences a continuity of purpose. Each incident of stalking must be proven by competent, substantial evidence. When evaluating whether competent, substantial evidence supports a trial court's ruling, legal sufficiency, as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal. In determining whether each incident of harassment causing substantial emotional distress has been established to support a finding of stalking, courts use a reasonable person standard, not a subjective standard. In this case the trial court erred in entering the injunction for protection as the evidence was legally insufficient to support doing so. The appeals court reversed.

Case:              Beckstrom v. Beckstrom
Court:             Fourth District Court of Appeal.
Trial Judge: Amy Smith.
Attorneys:      Betty C. Resch, Sean P. Sheppard.
Issues:            Alimony, Attorney’s Fees.
Holding: Attorney’s Fees

Despite the lack of a transcript and an adequate record, when the error appears on the face of the judgment, it should be corrected. A trial court may order a party to pay a reasonable amount for attorney’s fees. The trial court is required to consider the financial resources of both parties and make findings regarding their respective financial needs and abilities to pay. Failure to do so requires reversal. The trial court also has discretion to allow payment of an award of attorney’s fees over time, but it must set out a factual basis for imposing the specific payment plan selected. In this case, the trial court found the Former Wife was in need of attorney’s fees, but did not make a finding as to the Former Husband’s ability to pay and did not set forth any factual basis for imposing this specific payment plan. The appeals court reversed the judgment on this issue and remanded the case to the trial court to make the requisite written findings.

Life Insurance Policy

Under the invited error rule, a party cannot successfully complain about an error for which he or she is responsible or of rulings that he or she invited the court to make. In this case, the trial court did not err in ordering the Former Husband to purchase a life insurance policy and include such a provision in his proposed final judgment when the Former Husband so agreed earlier in the proceedings. The appeals court affirmed on this point.

Case:              Gilroy v. Gilroy
Court:             Second District Court of Appeal.
Trial Judge: Amy M. Williams.
Attorneys:     Jane H. Grossman, Peter N. Meros.
Issues:            Time-sharing, Child Support.

Holding: Florida Family Law Rules of Procedure require the filing of a financial affidavit in supplemental dissolution proceedings, with service within 45 days of service of the initial pleading on the respondent. The Rules provide a continuing duty to supplement financial affidavits upon a material change in financial circumstances. The requirement to provide a financial affidavit in supplemental proceedings is mandatory and cannot be waived by the parties. As well, a request for a continuance must be entertained, in order to properly present evidence regarding the relevant issues. In this case, the trial court erred in denying the Former Husband's request for a continuance when the Former Wife did not serve and file her financial evidence in compliance with the Rules and giving the Former Husband sufficient time to properly review it and prepare. The appeals court reversed and ordered a new hearing on the issue of child support and directed that discovery be conducted prior to the final hearing on remand.

Case:              C.D. v. D.C.F.
Court:             First District Court of Appeal.
Trial Judge: David M. Gooding.
Attorneys: Jeffrey E. Lewis, Crystal McBee Frusciante, Kelley Schaeffer, Ward L. Metzger.
Issues:            Termination.

Holding: In termination of parental rights cases, the standard of review is highly deferential. The trial court's findings must be supported by competent substantial evidence. In order for parental rights to be permanently and involuntarily severed, the state must show by clear and convincing evidence that reunification with the parent poses a substantial risk of significant harm to the child. As parental rights constitute a fundamental liberty interest, the state must establish in each case that termination of those rights is the least restrictive means of protecting the child from serious harm. Florida statutes provide that the availability of a placement with a relative may not be considered as a ground to deny the termination of parental rights. However, in this case the applicable test was whether termination was the least restrictive means of protecting a child from serious harm. In this case, the trial court erred as it found the least restrictive means of achieving permanency and held that termination was the least restrictive means of protecting the children from harm. The appeals court reversed.

Case:              Sisca v. Sisca
Court:             Fourth District Court of Appeal.
Trial Judge: Thomas H. Barkdull, III.
Attorneys:      Roger Levine, Amy D. Shield, Jonathan M. Streisfeld, Michael B. Gilden.
Issues:            Alimony, Attorney’s Fees.

Holding:    Under Florida statute, awards of attorney’s fees must be based on evidence that demonstrates the requisite need and ability to pay. An obligor should not be made to invade certain assets and investments if there is evidence the obligee has their own assets upon which he or she could rely. In this case, the trial court erred in ordering the Former Wife to pay the Former Husband’s attorney’s fees despite evidence showing her net income was lower than his. Rather, the trial court based its decision on financial evidence showing her investments, liquid assets, were worth more than his. However, based on their respective net monthly incomes, to pay his fees, the Former Wife would have to invade the liquid assets, while his financial evidence showed he had investments and other assets on which he could rely. Under these circumstances, it was an abuse of the trial court’s discretion to require the Former wife to pay the Former Husband’s fees. The appeals court reversed the fee awards.

Case:              D.S. v. D.C.F.
Court:             Fourth District Court of Appeal.
Trial Judge: Hope Bristol.
Attorneys:   Antony P. Ryan, Paulina Forrest, Pamela Jo Bondi, Carolyn Schwarz, Patricia Murphy Propheter.
Issues:            Termination.

Holding: Termination of parental rights by the state requires clear and convincing evidence establishing one of the enumerated statutory grounds including risk to the child; that termination is in the manifest best interest of the child; and that termination is the least restrictive means of protecting the child from harm. Grounds for establishing termination can include the incarceration of a parent and whether the period of time for which the parent will be incarcerated will constitute a significant portion of the child’s minority. In determining whether the period of time is significant, the court shall consider the child’s age and the child’s need for a permanent and stable home. The period of time begins on the date that the parent enters into incarceration. The court must look both at the length of the incarceration as well as its effect on the child’s need for permanency. The state must prove that termination is in the best interest of the child and the least restrictive means of protecting him or her from harm. In this case the trial court was correct in terminating for the minor child who had been in foster care, the foster parents anticipated adopting him and he did not wish to see his father. The state proved same by clear and convincing evidence. That child’s need for permanency (being adopted) was paramount, supported by competent substantial evidence, in the manifest best interest of the child and was the least restrictive means to prevent harm to him.

As for the children living with a relative, the trial court erred in terminating as the state did not establish grounds for same. The children were living with a relative, and the Father maintained as close a relationship as his incarceration has allowed and the finding that his incarceration amounted to a significant portion of the children’s minorities was not supported by substantial and competent evidence. Nor was it shown that termination was in the children’s best interest nor the least restrictive means to prevent harm to the children. The appeals court affirmed the termination regarding the one child parental but we reversed the termination as to the other children.

Case:              Brandon-Thomas v. Brandon-Thomas
Court:             Second District Court of Appeal.
Trial Judge: John E. Duryea, Jr..
Attorneys:     Luis E. Insignares, Brian J. Kruger, Michael E. Chionopoulos, Pamela Jo Bondi, Allen Winsor, Adam S. Tanenbaum.
Issues:             Same-Sex Marriage.
Holding: The trial court was reversed for dismissing a same-sex divorce case based on lack of jurisdiction. The appellate court remanded to the trial court to consider the merits of the divorce petition.

Like those federal court decisions recognizing same-sex marriages, a same-sex divorce must be analysed principally for compliance with the Equal Protection and Due Process Clauses of the federal constitution to the extent that the trial court's order denied relief to the appellant. The application of the constitutional principles of equal protection and due process apply to the dissolution of same-sex marriages. The issues at hand require key focus. The primary issues at hand involve the rights of a same-sex couple, validly married in another state and now living in Florida, to seek a dissolution of marriage in Florida. A heterosexual couple under similar circumstance could easily invoke a Florida trial court's jurisdiction. More precisely defining the issue and the right enables easier application of the constitutional principles of equal protection and due process.

In this case, the court is petitioned to assist in returning the parties to single status – to adjust the parties' financial and property relationships and provide some judicial direction concerning child custody. The parties are not asking a Florida court to form a marital union, they seek disengagement from a broken relationship. Upon dissolution of marriage, the parties will each be single. Apart from the mandates of any final judgment, any state or federal obligations or benefits attendant to marriage presumably will cease. A well-settled general framework is utilized for the constitutional analysis. The substantive component of the Due Process Clause checks state authority to enact untenable measures, even if enacted with appropriate procedural safeguards. Substantive due process protects fundamental rights. As the Florida Constitution and legislation classify same-sex couples differently than heterosexual couples for purposes of dissolution of marriage, the proper definition of the right sought plays a leading role. In this case, the state failed to identify and argue the proper right. Rather, it pursued analysis and argument related to Florida’s ban of same-sex marriage and regarding Florida laws, under which, sexual orientation is not a protected class entitled to strict-scrutiny analysis. As the state bears the burden of presenting only a rational basis for its legislation, on the arguments presented, it fell short and tied the analysis to the need to promote procreation and have children raised in a particular family situation. The state made this a same-sex issue when it is not. Once the real issues are defined that becomes apparent. However, even if Florida's purported interest in procreation and having children raised in a heterosexual household were rational reasons to ban same-sex marriage, the state did not establish why or how prohibiting a validly married same-sex couple from seeking a divorce in Florida advances either of these interests. The state has not articulated how prohibiting a trial court from dissolving a same-sex marriage, validly entered into in another state, will promote a rise in procreation. Nor does the state explain how denying a couple a divorce will optimize what it sees as an ideal environment for raising children. Indeed, in the context of a marriage dissolution, the trial court will be in an ideal situation to protect the best interest of the child parented by this couple. The appeals court did not discount the state's reason for enacting its laws and noted that a court should defer to the state when it has provided a basis for its statutory and constitutional classifications. However, such deference presupposes that the state has a rational basis for its position, which in this case, was not established.

Case:              Gilliard v. Gilliard
Court:             Fifth District Court of Appeal.
Trial Judge: Linda Schoonover.
Attorneys:      David L. Robold, Shannon L. Akins, Nicholas A. Shannin, Patrick John McGinley.
Issues:            Alimony, Equitable Distribution, Attorney’s Fees.
Holding: Alimony
In order to award alimony, a court must make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance. The burden to show his or her financial need and the spouse’s ability to pay is on the party requesting alimony. A marriage having a duration of greater than 7 years but less than 17 years is considered a moderate-term marriage and there is no presumption for or against permanent alimony. Permanent alimony may be awarded following a moderate-term marriage if such an award is appropriate based upon clear and convincing evidence after consideration of the factors set out by statute. The purpose of permanent alimony is to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties.   The ability to pay alimony should be based on the party’s net, not gross, income.

In this case, the trial court erred in awarding alimony based on the Former Husband’s gross income. The trial court also erred in considering Former Husband’s future retirement benefits as both current income and a marital asset, included in its distribution of the parties’ marital assets when the future retirement benefits should be considered in the division of marital assets. The trial court erred further when it failed to make specific written findings regarding the standard of living established during the marriage, the contributions of each party to the marriage, or the tax treatment and consequences of awarding alimony.

Equitable Distribution

Under Florida statute, in distributing marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal. Although a trial court may distribute marital assets and liabilities unequally, it is required to justify such an award based on all relevant factors under statute. A court should make enumerated findings related to each factor under statute. While parties may agree to a specific distribution of some of their assets and liabilities in a mediated or other settlement agreement, the court should placed values on the various items of personal property because each division and distribution of a marital asset and liability is interrelated to form an overall scheme fair to both parties.

The trial court erred in awarding an asset to the Former Wife firstly in the equitable distribution scheme and then a second time in the attorney’s fees. The trial court erred in failing to place a value on the parties’ automobiles, furniture, and furnishings distributed pursuant to the partial mediation agreement and erred when it ordered the Former Husband to make mortgage payments if he failed to make his alimony payments. Proper recourse there would have been to impose sanctions for wilfully failing to comply with a court order. The trial court also erred in failing to consider the consolidation loan as a marital liability.

Attorney’s Fees

An award of attorney’s fees must be based on clear and cogent evidence of the parties’ respective need and ability to pay. Such findings must be housed in specific factual findings which also include those regarding the attorney’s work (ie: reasonable number of hours spent and the reasonable hourly rate.) In this case, the trial court did not err in that regard, but did improperly include an asset that was already distributed when it conducted the ability to pay analysis.

The appeals court reversed the entire distribution plan and remanded for reconsideration.

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