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 and Family Law Update for Week Ending April 24, 2016

April 27, 2016

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:              Lathrop v. Lathrop n/k/a Posey
Court:            Second District Court of Appeal.
Trial Judge: John A. Schaefer.
Attorneys:     Dorothy F. Easley, Allison M. Perry.
Issues:            Alimony.
Holding:       In the absence of special circumstances, a Former Spouse cannot be required to maintain life insurance for the purpose of securing an alimony obligation. A final judgment of dissolution must set forth sufficient findings of special circumstances to support a requirement for life insurance. In this case, the trial court erred in requiring the Former Husband to maintain a life insurance policy to secure the payment of permanent alimony in the absence of any special circumstances to justify the life insurance requirement. The appeals court reversed.

Case:              Thomas-Nance v. Nance
Court:            Second District Court of Appeal.
Trial Judge: Martha J. Cook.
Attorneys:      Deborah Marks.
Issues:            Alimony.
Holding:        To deprive a party of the majority of the assets of the marriage for the rest of his or her life is an abuse of discretion. The sentimental interest of one party in marital property cannot take priority over financial fairness to the other. In this case, the trial court erred when it ordered that the Former Husband to pay the Former Wife her interest in the marital home at a monthly rate which would require her to wait more than 20 years to receive her share of the marital assets. The payment plan was patently unreasonable. The appeals court revered and remanded.

Case:              B.J. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge: Maria Sampedro-Iglesia.
Attorneys:   Eugene F. Zenobi, Kevin Coyle Colbert, Karla Perkins, Laura J. Lee (Sandford).
Issues:            Dependency.
Holding:   An appellate court reviews an adjudication of dependency for an abuse of discretion, and will uphold the determination if the trial court applied the correct law and its ruling is supported by competent, substantial evidence. The parent's harmful behavior must be a present threat to the child, based on competent, substantial evidence that the child was either abandoned, abused, or neglected, or that the risk of abandonment, abuse or neglect is imminent. In this case, the trial court erred in ordering dependency in the absence of competent substantial evidence of imminent prospective abuse, abandonment, or neglect. The appeals court reversed and remanded.

Case:              Vaught v. Vaught
Court:            Fourth District Court of Appeal.
Trial Judge: Lisa S. Small.
Attorneys:     Andrew David Stine, Manuel Farach.
Issues:           Domestic Violence Injunction.

Holding: A party defending against a claim is entitled to due process, including the right to proper and adequate notice of the allegations which form the basis for the relief sought. Under Florida Statutes (2014) a Respondent to a petition for a domestic violence injunction shall be personally served with a copy of the petition. In this case, the trial court erred in ordering a domestic violence injunction when certain new allegations were raised for the first time in a supplemental affidavit and not at the hearing. The trial court further erred in denying the Respondent’s motion for continuance where the notice of the final hearing on the new and supplemental allegations was provided only a few business days before the hearing. The appeals court reversed the final judgment of injunction.

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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 April 17, 2016

April 18, 2016

Case:              Nolan v. Nolan
Court:            First District Court of Appeal.
Trial Judge: E. McRae Mathis.
Attorneys:     Gary Baker, Barry L. Zisser, Corrine A. Bylund.
Issues:           Alimony, Equitable Distribution, Attorney’s Fees.

Holding:        Equitable Distribution

The reversal and remand of the equitable distribution portion of the final judgment necessitates reversal and remand of the alimony and attorney’s fees portions of the final judgment as well. As such, other aspects of the final judgment required reversal and remand.

Alimony

Florida Statutes (2015), directs the trial court to first make a specific factual determination as to whether either party has an actual need for alimony and whether the other party has the ability to pay. If the trial court so determines, it must then consider all of the relevant factors in section 61.08(2)(a)-(j), Florida Statutes (2015). The parties here were married for 33 years, which is considered a long-term marriage which raised a rebuttal presumption of entitlement to permanent alimony. In this case, the trial court erred as the alimony award was not adequately supported by the evidence or the findings in the final judgment. While Florida Statutes (2015), directs the trial court to consider all sources of income available to either party, (including overtime and bonuses) it simultaneously recognized that a seven-day work week is not reasonable. The trial court erred in calculating the alimony award based upon the husband’s income that was unsustainable and that was also shown, both by the evidence and basic notions of reasonableness, to be no longer available to him.

Attorney’s Fees

A trial court abuses its discretion in awarding attorney’s fees if the equal distribution of the marital property has been achieved and the trial court equalized incomes through its alimony awards. Florida Statutes (2015), allows the trial court to order a party to pay a reasonable amount of attorney’s fees after considering the financial resources of both parties.

In this case, the trial court erred as, it awarded attorney’s fees when the final judgment placed the Former Wife in a substantially equal position as the Former Husband. The appeals court remanded.

Case:              Bielling v. Bielling
Court:            First District Court of Appeal.
Trial Judge:   W. Gregg McCaulie.
Attorneys:     Christopher T. Wilson.
Issues:           Child Support, Time Sharing, Parenting.

Holding:        Due process requires that a party be given the opportunity to be heard and to testify and call witnesses on his or her behalf. The denial of this right is fundamental error. Denial of due process is valid basis for disqualification of a trial judge but an appellate court requires an order at issue properly before it to review. In this case, the trial court erred as it entered final judgment without notice to the parties, while the hearing was ongoing. The appeals court reversed but as issue of disqualification was not properly before it, could not address it.

Case:              B.G. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge:   Kirk C. Volker.
Attorneys:     Thomas Montgomery, Meredith K. Hall, Bradenton, Sara E. Goldfarb.
Issues:            Dependency.

Holding:        A court cannot relinquish jurisdiction to circumvent The Interstate Compact on the Placement of Children (“ICPC”). In this case, the trial court erred in relinquishing jurisdiction of a matter regarding dependency in Florida (where the Mother had custody pursuant to a Domestic Relations Order) to Texas (where the Father resided and had obtained a Shelter Order). Specifically, it: a) found that the Child was permanently placed with the Father by virtue of the Shelter Order, which did not alter the Father’s status as the noncustodial parent under the prior the Mother’s Domestic Relations order; b) tried to circumvent the ICPC; and c) relinquished jurisdiction over the Child in the middle of a dependency case after removing her from the Mother who had custody under a prior court order. The appeals court vacated and remanded.

Case:              S.M. v. D.C.F.
Court:            Fifth District Court of Appeal.
Trial Judge:   Michelle T. Morley.
Attorneys:     Summer N. Boyd, Deborah A. Schroth, Christopher S. Mulligan, WendieMichelle Cooper.
Issues:             Termination.

Holding: An order for termination must be founded on compelling, substantive evidence and proper application of such evidence to the relevant statutory provisions. In this case, the trial court did not err when it ordered termination of the Father’s parental rights as the order. There were multiple statutory grounds properly found by the trial court. The appeals court affirmed but remanded for clarification of the order on entry.

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Florida Divorce & Family Law Update for Week Ending April 10, 2016

April 12, 2016

Case:            Schneider v. Schneider
Court:            First District Court of Appeal.
Trial Judge: Dan Wilensky.
Attorneys:     Lynn W. Martin.
Issues:           Contempt, Attorney’s Fees.

Holding:      A finding of contempt for unpaid debt is proper only if the debt is alimony or child support. It is an abuse of discretion to hold a person in contempt for failure to comply with a property-settlement provision of a final judgment of dissolution of marriage. In this case, the trial court erred in finding the Former Husband in contempt regarding an order to pay child support and a property settlement payment from his military retirement pay each month. Specifically, he paid the Former Wife the amount due for child support several days after it was due. She considered the money as payment for the property settlement, and the remainder as child support. The trial court ratified her opinion and found the Former Husband in contempt for refusal to make a property settlement payment on time. The appeals court could not rule on whether error occurred regarding the award of fees due to lack of preservation or transcripts of the relevant proceedings. The appeals court reversed as to contempt but affirmed as to the award of fees.

Case:             M.D. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: Kenneth L. Gillespie.
Attorneys:     Katherine L. Corrigan, Pamela Jo Bondi, Carolyn Schwarz, KelleySchaeffer.
Issues:           Termination.

Holding: A trial court’s decision to terminate parental rights must be based upon clear and convincing evidence supporting statutorily enumerated grounds. appellate review is limited to whether the judgment was supported by competent substantial evidence. In this case, the trial court did not err as its decision to terminate was based on competent, substantial evidence regarding statutory requirements. The trial judge found that the Father knew how to communicate with the Child in an effort to maintain a relationship, but he did not, and found the Father’s testimony not to be credible. The Father’s appeal required the appeals court reweigh the evidence, which it could not. The appeals court affirmed.

Case:             Caputo v. Caputo
Court:            Fourth District Court of Appeal.
Trial Judge: Jeffrey Dana Gillen.
Attorneys:     Jay A. Schwartz, Colleen E. Huott.
Issues:           Contempt.

Holding:       Contempt cannot lie where the order or judgment does not specifically address the matter complained of. An order finding entitlement to attorneys’ fees is a non-final, non-appealable order. It is acceptable to have a determination made at a subsequent hearing. In this case, the trial court did not err in dismissing the Former Wife’s attempt to hold the Former Husband in contempt for enrolling their child in daycare near his place of employment, and awarding him attorney’s fees. Contempt could not be ordered because the final judgment of dissolution did not expressly address daycare. Nor did the trial court err when it ordered the Former Husband was entitled to attorney’s fees as they were to be determined at a subsequent hearing. The appeals court affirmed.

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Florida Divorce & Family Law Update for 2 Weeks Ending April 1, 2016

April 5, 2016

Case:             J.M. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: J. David Langford.
Attorneys:     Antony P. Ryan, Melanie L. Casper, Rosemarie Farrell, Laura J. Lee.
Issues:            Dependency.
Holding:      Without evidence showing that domestic violence has occurred when a child or children were present, or that they were aware of such violence, a finding of impending harm to the children is unsubstantiated. For purposes of dependency, harm to a child includes extensive, abusive, and chronic use of a controlled substance or alcohol by a parent when the child is demonstrably adversely affected by such usage. In this case, the trial court erred in ordering dependency in the absence of competent substantial evidence that: a. the child was aware of alleged incidents of violence between the Mother and Father, or was affected by such instances; and b. the Mother was under the influence of substances in the presence of the Child, or that any substance abuse adversely affected the Child (despite her being under the influence in the presence of others). The appeals court reversed.

Case:              J.B. and D.C.F. v. C.S.
Court:            First District Court of Appeal.
Trial Judge:   Karen A. Gievers.
Attorneys:   Theresa Flury, Kelley Schaeffer, Dwight O. Slater, Thomasina Moore,    Ronald Newlin, Lorraine M. Donovan-Lepanto, Mike Donovan, Stephen Johnson.
Issues:            Termination, Reunification.
Holding:        Where the trial court's findings are supported by competent substantial evidence and the appellate court cannot say that no one could reasonably find such evidence to be clear and convincing, the findings will not be set aside on appellate review. In this case, the trial court did not err as it made its determination that statutory grounds for termination of parental rights existed; that termination promoted the children’s best interests; and that termination was the least restrictive means to protect the children from serious harm as competent substantial evidence. The appeals court affirmed.

Case:             Children’s Home Society of Florida v. V.D.
Court:            First District Court of Appeal.
Trial Judge: Karen A. Gievers.
Attorneys:     Cheryl R. Eisen-Yeary, Elizabeth W. Willis, James V. Cook.
Issues:            Adoption.
Holding:      Under Florida Statutes, an adoption agency is not required to serve a notice of intended adoption plan on a putative father unless the mother has first identified a known and locatable unmarried biological father by the date she signs her consent for adoption. . Likewise, the statute does not require the agency to conduct a diligent search for the putative father unless the mother has identified a potential father within the timeframes required by the statute which are identified as the date the mother signs the consent for adoption. In this case, the trial court erred as no putative father was known, or locatable, or identified, by the time the birth mother signed her consent for adoption. Although that is the only time frame relevant under the statute, it is also true that the limited information the birth mother provided later, under questioning from the trial court, likewise did not identify a known or locatable putative father. The Society was not subject to any diligent search requirement beyond what it had already completed prior to the termination of parental rights. The appeals court reversed.

Case:             Demmi v. Demmi
Court:            First District Court of Appeal.
Trial Judge: David Rimmer.
Attorneys:      Bradley G. Johnson, Bradley G. Fisher.
Issues:            Child Support/Expenses.
Holding:        In making an order as to non-covered medical expenses, if such expenses are ordered to be separately paid, a trial court must allocate these expenses in the same percentage as the child support allocation unless there is a rationale in the final judgment to the contrary. In this case, the trial court erred in ordering the parties to each be responsible for the payment of 50% of the non-covered medical expenses of the children because such allocation conflicted with the final judgment’s allocation of the parties’ relative financial responsibility for child support.

Case:             Felice v. Felice
Court:            Second District Court of Appeal.
Trial Judge: Christine Greider.
Attorneys:
Issues:            Equitable Distribution, Parenting.
Holding:         In this case, the trial court erred by including a portion of the value of the Former Husband's premarital home as a marital asset in the equitable distribution scheme. While the parties’ did not specifically refer to any right to the appreciation or enhancement of the Former Husband’s premarital home the broad language of the agreement expressly waived the Former Wife's rights and claims in the property and included the appreciated or enhanced value of the property that occurs during the marriage. The court further erred as it failed to incorporate into the amended final judgment the amended parenting plan that the trial court ordered on rehearing from the original final judgment. The appeals court reversed.

Case:              R.W. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge: Jeri B. Cohen.
Attorneys:      Albert W. Guffanti, Karla Perkins, Laura J. Lee (Sanford).
Issues:            Termination.
Holding:         A trial court may properly question witnesses when required by the interests of justice. In this case, the trial court did not err in its participation in the questioning of witnesses at an adjudicatory hearing. Such questioning did not constitute an abandonment of the trial court’s role of neutrality and impartiality and did not deprive the appellant of due process. The appellant failed to object to most of the court’s questions it now relies upon for this claim. The appeals court affirmed.

Case:             Collins v. Collins, Sr.
Court:            Fifth District Court of Appeal.
Trial Judge: Mark J. Hill.
Attorneys:     Brandon M. Tyson, Paul W. Darby, Thomas Holden.
Issues:            Parenting.
Holding:      In awarding limited or restrictions on parental responsibility, a trial court must make specific findings on point. In this case, although the trial court’s factual findings supported its decision, the appeals court remanded because the final judgment failed to include a specific finding that shared parental responsibility would be detrimental to the children.

Case:            Nuila v. Stolp
Court:            Fifth District Court of Appeal.
Trial Judge: Kelly J. McKibben.
Attorneys:      Lindsey M. Sharp.
Issues: Injunction Against Domestic Violence.
Holding:   An injunction against dating violence is statutorily authorized if a petitioner proved three elements: (1) a dating relationship within the past six months; (2) at least one occasion of dating violence; and (3) reasonable cause to believe that he or she is in imminent danger ofanother act of dating violence. In this case, the trial court erred as, while there was competent substantial evidence on that the parties had dated in the past 6 months and there had been an episode of dating violence, the third statutory element, reasonable cause to believe that the petitioner was in imminent danger of another act of dating violence, was not supported by competent substantial evidence. The appeals court reversed.

Case:             G.K. v. D.C.F.
Court:            Fourth District Court of Appeal.
Trial Judge: J. David Langford.
Attorneys:     Antony P. Ryan, Richard G. Bartmon, Rosemarie Farrell, Laura J. Lee.
Issues:            Dependency.
Holding:        An order for dependency must be based on competent substantial evidence, avoiding inadmissible hearsay evidence, of risk to the child/children. In this case, the trial court erred in ordering dependency when there was no competent substantial evidence that the children where at risk or witnessed incidents of domestic violence involving the parents, or that the Father posed a current threat to the safety of the children. The trial court also relied upon inadmissible hearsay evidence to support the order of dependency. The appeals court reversed and remanded.

Case:            Abramovic v. Abramovic
Court:            Fourth District Court of Appeal.
Trial Judge: Jeffrey Dana Gillen.
Attorneys:     Jamie Billotte Moses.
Issues:            Equitable Distribution, Exemption.
Holding:        A lump sum equalizing payment to accomplish equitable distribution is properly awarded only when the evidence reflects a justification for such an award and the ability of the paying spouse to make the payment without substantially endangering his or her economic status. The custodial parent presumptively is entitled to the tax exemptions but may release them to the noncustodial parent. A final judgment awarding a dependency tax exemption must require that the exemption be conditional on the paying spouse’s being current in his support obligations. In this case, the trial court erred in requiring the Former Wife to make an equalizing payment which the evidence showed she could not afford; giving the Former Husband the dependency exemption without conditioning it on his compliance with his child support obligations, and not alternating the dependency exemption between the parties. The appeals court reversed.

Case:            McGlynn v. Tallman-McGlynn
Court:            Fourth District Court of Appeal.
Trial Judge: Amy L. Smith.
Attorneys:      Robert M. Lewis, Catherine S. Eaton, Cash A. Eaton.
Issues:            Alimony, Child Support.
Holding:        Any error on the part of the trial court may be considered invited error. Matters argued for the first time in a reply brief will not be considered by the reviewing court. In this case, the trial court did not err in computing and applying the Former Husband’s net income when determining child support payments. The error raised by the Former Husband regarding calculation of his income was invited error as the court’s calculations were based on his affidavit evidence and not raised properly on appeal (he raised it in a reply brief). The Former Husband’s arguments regarding calculations were not supported by the record, and the trial court’s conclusions that he could to survive economically after making all required payments was supported on the evidence. The appeal court affirmed.

Case:            Palmer v. Palmer
Court:            Fifth District Court of Appeal.
Trial Judge: Ann Melinda Craggs.
Attorneys:      Robert H. McLean, Bureus Wayne Argo.
Issues:            Parenting, Time-Sharing.
Holding:         In this case, the trial court did not err in allowing the Former Husband to reopen the evidence after the trial had concluded and regarding time-sharing. However, it did err in denying the Former Wife’s petition to limit their child’s exposure to dogs (due to allergies) in the face of expert evidence supporting a restriction and the Former Husband conceding that a restriction was in the child’s best interest. The appeals court reversed and remanded regarding restricting exposure to dogs

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Florida Divorce & Family Law Update for Week Ending January 17, 2016

January 19, 2016

Case:              J.P. v. D.C.F.
Court:            First District Court of Appeal.
Trial Judge: Marci L. Goodman.
Attorneys:     Crystal McBee Frusciante, Dwight O. Slater.
Issues:            Termination.

Holding:   A finding that evidence is clear and convincing attracts a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evidentiary support. This standard of review is highly deferential. Prior to terminating a parent's rights under Florida statutes, several requirements must be met.

The trial court must find the children's life, safety, or health would be threatened by continued interaction with the parent, regardless of the provision of services.
The Department must show that there is no reasonable basis to believe a parent will improve and termination is in the child’s best interest.
Termination of parental rights must meet the least restrictive means test.

In this case, the trial court did not err as its findings were supported by competent, substantial evidence. A statutory ground for termination of parental rights was proven, the evidence supported the court’s finding that termination was in the child’s manifest best interest, and termination of parental rights passes the least restrictive means test. Using the “highly deferential” standard of review applied to termination of parental rights cases, the appeals court affirmed.

Case:              J.F. v. D.C.F.
Court:            Second District Court of Appeal.
Trial Judge: Scott Brownell.
Attorneys:      Patrick R. Cunningham, Pamela Jo Bondi, Meredith K. Hall, David Krupski.
Issues:            Termination.

Holding:        Florida statutes requires the trial court to find by clear and convincing evidence that at least one of the statutory grounds for termination exists. The amendment to section 39.806(1)(f), effective on July 1, 2014, which applied to this matter, provided that proof of a nexus between egregious conduct to a child and the potential harm to the child's sibling is not required. Prior to the amendment, the case law required proof of nexus, which was often provided by expert testimony. No one challenged the constitutionality of the amendment on the ground that it could not withstand the strict scrutiny required for statutes that impact a fundamental right.

In this case, the trial court did not err as there was competent, substantial evidence supporting termination as to each child on at least one of the grounds enumerated in section 39.806, Florida Statutes (2014). The appeals court affirmed, however, wrote to address the elimination of the "nexus" requirement such that trial courts may wish to take extra care in the application of this statute until any questions concerning its constitutionality have been resolved.

Case:              N.B. v. D.C.F.
Court:            Third District Court of Appeal.
Trial Judge: Cindy Lederman.
Attorneys: Eugene F. Zenobi, Kevin Coyle Colbert, Karla Perkins, Kelley Schaeffer (Sanford).
Issues:            Termination.

Holding:        To terminate parental rights, the State must demonstrate by clear and convincing evidence: (1) the existence of one of the statutory grounds under Florida statutes; (2) that termination is in the best interest of the child; and (3) that termination is the least restrictive means of protecting the child from harm. The standard of review for challenges to the sufficiency of the evidence supporting a termination of parental rights is whether the trial court’s order is supported by substantial competent evidence. Facial constitutional attacks and attacks involving fundamental liberty interest, such as parental rights, may be raised for the first time on appeal. Florida statutes authorize the filing of a petition for termination of parental rights when on three or more occasions the child or another child of the parent or parents has been placed in out-of-home care and the conditions that led to the placement were caused by the parent or parents. When a statute impinges on a fundamental liberty interest, such as parenting one’s child, an appeals court must analyze the constitutionality of the statute under a strict scrutiny standard. The State must establish at least one statutory ground by clear and convincing evidence. It must also establish by clear and convincing evidence that termination is in the manifest best interest of the children and that termination is the least restrictive means of protecting the children from harm.

In this case, the trial court did not err in rendering its order as it was based on the record which contained competent evidence establishing the statutory grounds for termination exist, specifically that termination was in the manifest best interest of the children and was the least restrictive means of protecting the children from harm. The appeals court affirmed.

Case:              D.C.F. v. J.S. and S.I.
Court:            Fourth District Court of Appeal.
Trial Judge: Michael Heisey.
Attorneys:     Rosemarie Farrell, Laura E. Lawson, T. Charles Shafer, Ryan Thomas Truskoski.
Issues:            Termination.

Holding:         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.
the parent of a child is incarcerated and the court determines by clear and convincing evidence that continuing the parental relationship with the incarcerated parent would be harmful to the child and, for this reason termination is in the best interest of the child.

When determining harm, the court shall consider the following factors:

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 erred in denying the termination of both parents when the Department proved by clear and convincing evidence that, by applying the statutorily mandated factors, continuing the parental relationship with the incarcerated father would be harmful to the child and, for this reason, termination of the father’s parental rights is in the child’s best interests. First, the court did not address the relationship between the child and the father using the statutory factors. The Department proved by clear and convincing evidence that the father and the child have no relationship. Second, the court did not address the father’s current and past provision for the child’s developmental, cognitive, psychological and physical needs. Third, regarding the father’s history of criminal behavior, the court merely noted that the father’s commission of armed burglaries and felony assault with a firearm resulting in injury was “disturbing.” The court did not address the fact that this was the father’s second conviction for armed violent offenses or how the resulting incarceration caused his prolonged unavailability to parent. Fourth, while the court mentioned the child’s age, the court did not address the child’s age when considering the harm flowing from the father’s prolonged unavailability to parent.

The appeals court reversed the denial of the termination of the Mother and the Father, respectively.

Case:              Tatum v. Triana-Tatum
Court:            Fifth District Court of Appeal.
Trial Judge: Robert M. Evans.
Attorneys:     Carlton Pierce, Oscar Gonzalez, Jr.
Issues:            Child Support, Relocation.

Holding: Retroactive child support begins to run from the date the petition for modification is filed. In this case, the trial court erred when it set as the accrual date for retroactive child support, a date prior to that on which the Father’s supplemental petition for modification was filed. The appeals court remanded for recalculation of child support arrearages.

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Florida Divorce & Family Law Update for 2 Weeks Ending January 10, 2016

January 13, 2016

Case:              A.C. v. D.C.F. and Adoptive Parents of R.A.
Court: Second District Court of Appeal.
Trial Judge: Kathleen J. Kroll.
Attorneys:     Ronald L. Bornstein, Meredith K. Hall, Bradenton, Philip M. Burlington.
Issues:           Termination.

Holding:     A motion for relief from judgment should not be summarily denied without an evidentiary hearing unless its allegations and accompanying affidavits fail to allege ‘colorable entitlement’ to relief. In this case, the trial court erred in denying the Mother’s motion to vacate the order terminating her parental rights on the basis that she lacked standing (an adoption situation). The appeals court reversed but expressed no opinion as to whether any colorable entitlement to relief under rule 8.270 was shown.

Case:              Forssell v. Forssell
Court: Fourth District Court of Appeal.
Trial Judge: Laura M. Watson.
Attorneys:     Daniel E. Forrest, Joyce A. Julian.
Issues:           Time-sharing.

Holding:       In this case, the Father brought two appeals, that of a: 1. non-final order granting the emergency motion of the Mother to indefinitely suspend his time-sharing with their minor children; and 2. non-final order denying the parties’ joint request to vacate and dissolve the final judgment for protection against domestic violence, which the Mother had obtained against him. In this case, the trial court abused its discretion in failing to set out, in its order, the steps the Father must take to re-establish time-sharing. The appeals court consolidated two cases and reversed the time-sharing order in part and the order denying the motion to vacate and dissolve the injunction.

Case:              Benedict v. Benedict
Court: Fourth District Court of Appeal.
Trial Judge: Tim Bailey.
Attorneys:     Herbert L. Benedict, William G. Crawford.
Issues:           Alimony.

Holding:     The Former Wife sought a judgment on alimony arrearages while the Former Husband’s petition to modify alimony was pending. The Former Husband appeals from the money judgment of the trial court. He argues that the judgment constituted error because he is disabled and unemployed and the Former Wife’s improved financial circumstances obviate her need for support. In this case, the trial court did not err as the Former Husband must raise his claims in the trial court during modification proceedings and must present evidence in support of his modification petition. The appeals court affirmed but without prejudice to the Former Husband proceeding on his modification petition and then seeking relief from the alimony arrearages judgment if the result of the modification proceeding warrants such relief.

Case:              S.L. v. D.C.F.
Court: Second District Court of Appeal.
Trial Judge: Lee A. Schreiber.
Attorneys:     Toni A. Butler, Meredith K. Hall, Laura Lawson.
Issues:           Termination.

Holding: There are strict time frames in cases involving the termination of parental rights. Under the Florida Rule of Judicial Administration, there is a sixty-day time requirement for decisions by courts in such matters. There is also public policy of expediting termination proceedings. In this case, the trial court rendered its final judgment over eight months after the termination hearing (and only after the Guardian Ad Litem filed a motion for ruling on petition for termination of parental rights). During the eight-month delay, several events occurred that required judicial review, including a change of custody that separated the younger children from the older ones. The appeals court affirmed but wrote to emphasize that strict compliance with the rules and statutes governing the time frames in dependency and termination cases is required.

Case:              Felice v. Felice
Court: Second District Court of Appeal.
Trial Judge: Christine Greider.
Attorneys:     Appellant was pro se.
Issues:           Equitable Distribution, Parenting.

Holding:

Equitable distribution
An inter-spousal agreement can expressly waive a Former Spouse's rights and claims in property, including the appreciated or enhanced value of property that occurs during the marriage. In this case, the trial court erred in including a portion of the value of the Former Husband's premarital home as a marital asset in the equitable distribution scheme. Even though the agreement did not specifically refer to any right to the appreciation or enhancement of his premarital home, the broad language of the agreement expressly waived the Former Wife's rights and claims in the property and was considered to include the appreciated or enhanced value of the property that occurred during the marriage. The appeals court reversed.

Parenting
If a trial court modifies a parenting plan in an order on motions for rehearing it must also implement the new parenting plan in the amended final judgment. In this case, the trial court erred in failing to incorporate into the amended final judgment the amended parenting plan that was ordered on rehearing from the original final judgment. The appeals court reversed the amended final judgment to the extent that the parenting plan language and attached parenting plan were inconsistent with the trial court's rulings on rehearing and directed the trial court to amend to be consistent with same.

Case:              Pollack v. Pollack
Court: Fifth District Court of Appeal.
Trial Judge: Charles Hood.
Attorneys:     Richard J. D'Amico, Philip J. Bonamo.
Issues:           Alimony.

Holding:       In this case, the trial court erred by terminating alimony retroactively to the date when the recipient Former Wife Appellant began residing with her significant other, as opposed to the date when the payor Former Husband filed his petition to terminate alimony. The appeals court reversed and remanded with directions to the trial court to enter a new order terminating alimony retroactively to the date of the supplemental petition for modification.

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