Stephens’ Squibs – 2005

Alimony

Hull v. Hull, 910 So. 2d 898 (Fla. 1st DCA 2005).  Error to require Husband to maintain life insurance policy as security for rehabilitative alimony without making required findings regarding necessity, cost and availability.

Yitzhari v. Yitzhari, 906 So. 2d 1250 (Fla. 3rd DCA 2005).  Error to award 6 months of bridge the gap in lieu of rehabilitative alimony in 9 year marriage where Wife only had high school diploma, spoke little English, been a stay at home mother for 9 years, and received no assets that could produce income.  Written rehabilitative plan is not necessary if testimony is sufficient.

Esteva v, Rodriguez, 913 So. 2d 684 (Fla. 3rd DCA 2005).  Court has authority to award nominal permanent alimony subject to modification in the future if the Wife’s medical issue worsens.  However, this is discretionary.  See Burdick v. Burdick, 601 So.2d 632 (Fla. 4th DCA 1992).

Byers v. Byers, 910 So. 2d 336 (Fla. 4th DCA 2005).  13 year marriage in grey area with no presumption.  Trial court’s award of bridge the gap award based on finding that wife played judicial game of chicken by not working did not properly consider alimony factors.

Nichols v. Nichols, 907 So. 2d 620 (Fla. 4th DCA 2005).  14 year marriage falls in gray area and there is no presumption in favor or against an award of alimony.

Levy v. Levy, 900 So. 2d 737 (Fla. 2nd DCA 2005).  Permanent alimony ok in 2 year marriage to 32 year old wife who became disabled during the marriage.

Lakin v. Lakin, 901 So. 2d 186, (Fla. 4th DCA 2005) Permanent alimony awarded in 6 year marriage due to Wife’s health/emotional problems.

Yauch v. Yauch, 30 Fla. L. Weekly D263 (Fla. 2nd DCA 2005).  Court must make factual findings relative to statutory criteria to support alimony award.  Yauch v. Yauch, 901 So. 2d 920, 2005 Fla. App. LEXIS 5564 (Fla. Dist. Ct. App. 2d Dist., Apr. 22, 2005)

Stalnaker v. Stalnaker, 892 So. 2d 561 (Fla. 1st DCA 2005).  Court cannot consider retirement benefits as marital asset subject to equitable distribution and as source of income to pay alimony.

Griffin v. Griffin, 906 So. 2d 386 (Fla. 2nd DCA 2005).  Error to impute full time income to husband where there was an absence of substantial competent evidence to support a finding Husband could find full time employment.

Stern v. Stern, 907 So. 2d 701 (Fla. 4th DCA 2005).  Court did not abuse discretion awarding Husband alimony in long term marriage to equalize income when parties lived beyond their needs.

Custody / Visitation

Dudley v. Dudley, 899 So. 2d 483 (Fla. 1st DCA 2005), Trial Court did not abuse discretion in awarding primary to Father upon finding that Mother, who had been granted temporary primary violated previous visitation orders in order to frustrate the husband’s visitation and would in all likelihood continue to do so.

Coyne v. Coyne, 895 So. 2d 469 (Fla. 2nd DCA 2005)

Abuse of discretion to award sole parental based on unresolved immigration status and Father’s ability to appreciate responsibility in shared parental duties and decision making when no detriment shown to child.

Child Support

Greenhouse v. Greenhouse, 913 So. 2d 1201  (Fla. 4th DCA 2005).  Court in making undifferentiated temporary support must identify which portion of award is for alimony, which portion of for child support.  See. Blum v. Blum, 769 So.2d 1142 (Fla. 4th DCA 2000).

Matthews v. Matthews, 30 Fla. L. Weekly D2417 (Fla. 4th DBA 2005)  In the absence of explicit factual findings covering actual incomes attributable to the Husband and Wife, the amount and source of imputed income, the probable and potential earnings level, and the adjustments to income, the trial court’s final judgment was deficient.

Morrow v. Frommer, 913 So. 2d 1195 (Fla. 4th DCA 2005).  In establishing child support, court must either apply guidelines or give reasons for deviation.

Pike v. Pike, 932 So. 2d 229 (Fla. 4th DCA 2005).  Must set alimony before you calculate child support.

Schram v. Schram, 932 So. 2d 245 (Fla. 4th DCA 2005), Specific findings required to support source and amount of income.  When imputing income, trial court must set forth factual findings as to probable and potential earnings level and adjustments to income.

Cartwright v. Cartwright, 902 So. 2d 203 (Fla. 2nd DCA 2005).  Error to require parties to pay private school tuition for children where no competent substantial evidence indicates the amount of tuition ordered is within the parties’ customary standard of living.

Keeley v. Keeley, 899 So. 2d 387 (Fla. 2nd DCA 2005)  If agreed visitation calls for in excess of 40% of visitation, this could be basis to modify child support.

Equitable Distribution

Zold v. Zold, 911 So. 2d 1222 (Fla. 2005).  Undistributed income from sub-S is not income under 61, provided shareholder spouse (who has burden) to demonstrate that income was retained for corporate purpose rather than impermissibly retained to avoid alimony, child support or attorneys’ fees.

McLeod v. McLeod, 915 So. 2d 773 (Fla. 1st DCA 2005).  The failure for the trial court to identify the nature of all assets and liabilities and to establish a value for and distribute each marital asset and liability renders appellate court powerless to engage in meaningful appellate review.

McCarthy v. McCarthy, 922 So. 2d 223 (Fla. 3rd DCA 2005).  Section 61.077, which establishes criteria for setoffs and credits upon sale of marital property does not authorize a rental credit to the out-of-possession co-tenant during the use of the marital home for the benefit of the minor children.

Purpura v. Kelly, 913 So. 2d 110 (Fla. 4th DCA 2005).  Error to fail to treat entire amount of husband’s accrued leave time as marital asset subject to equitable distribution.

Krakower v. Krakower, 913 So. 2d 1212 (Fla. 4th DCA 2005) Error to include business as marital asset in equitable distribution when business was not in existence when dissolution filed.

Rasmussen v. Rasmussen, 909 So. 2d 969 (Fla. 2nd DCA 2005).  Baseball player who signs agreement; “in the event of death or separation Wife gets premarital stuff” is not a gift until title passes.  A mere intention to give in the future gives no obligation which the law will recognize or enforce.

Held v. Held, 912 So. 2d 637 (Fla. 4th DCA 2005).  To be a marital asset, goodwill “must exist separate and apart from the reputation or continued presence of the marital litigant”.

Macci v. Macci, 904 So. 2d 517 (Fla. 4th DCA 2005), The determination of valuation dates is squarely within the trial court’s discretion.

Acker v. Acker, 904 So. 2d 384 (Fla. 2005); Court cannot distribute pension benefits and consider the pension income in determining alimony.  Resolves conflict.

Reddell v. Reddell, 899 So. 2d 1154 (Fla. 5th DCA 2005).  Court must value all assets and liabilities for purposes of equitable distribution.

Rudderman v. Rudderman, 891 So. 2d 639 (Fla. 5DCA 2005).  Mathematical error in equitable distribution should be corrected to prevent unequal distribution.

Rao-Nagineni v. Rao, 895 So. 2d 1160 (Fla. 4th DCA 2005).  Section 67.075(6) provides bright line rule for setting the date to be used in determining “classification” of marital and non-marital assets (the date of filing or the date of an executed agreement).  Discretion left to trial courts is valuation.

Horvath v. Horvath, 893 So. 2d 649, (Fla. 4th DCA 2005).  No abuse in awarding marital home to Husband who was in better financial position to carry house and make equalizing payment.

Link v. Link, 897 So. 2d 533 (Fla. 5th DCA 2005).  Commingling presumed gift.

Yitzhari v. Yitzhari, 906 So. 2d 1250 (Fla. 3rd DCA 2005).  Error to fail to award Wife enhancement in value of Husband’s pre-marital property which resulted from the Husband’s expenditure of marital funds and labor during the marriage.  Once established that marital efforts/labor were used to enhance value, burden shifts to other party to show that some, if any, portion of enhancement would be exempt from equitable distribution.

Modification

Wade v. Hirschman, 903 So.2d 928 (Fla. 2005), burden to modify rotating custody arrangement is substantial change in circumstances.  Modifies Gibbs holding requiring proof of detriment is not an element of the substantial change test necessary to modify child custody.  [emphasis added]

Yeates v. Yeates, 915 So. 2d 735 (Fla. 2nd DCA 2005), Clarifies Wade modified Gibbs holding requiring proof of detriment is not an element of the substantial change test necessary to modify child custody.

NW, SW & CW v. DCF, 915 So. 2d 777 (Fla. 2nd DCA 2005).  Post judgment dependency results in permanent placement of child with Father.  Once dependency is discharged, the appropriate Court to modify dependency judgment is family court where dissolution occurred.  To modify must show a substantial change of circumstances since dependency order.

McIntosh v. McIntosh, 915 So. 2d 742 (Fla. 5th DCA 2005), A temporary modification is appropriate where the court determines that the obligor has suffered a reduction in income without deliberately seeking to avoid paying alimony and is acting in good faith to return his income to his previous level.  When an inability to pay alimony arises, a court must suspend payments until the ability is restored, unless the party’s inability to pay is a result of the intentional refusal to work or other willfully created inability.  Where the change in circumstances is unintentional and not willful, the obligor’s alimony obligation should be reduced to be more commensurate with his current ability to pay.

Buhler v. Buhler, 913 So. 2d 767 (Fla. 4th DCA 2005).  Where there is a substantial parental adjustment to child support, and in the future the Father does not regularly exercise 40% of overnight visits, Mother can seek modification of child support pursuant to section 61.30(11)(c) (which considers a noncustodial parent’s failure to exercise visitation as a substantial change in circumstances) and provides for retroactive application to the date the Father first failed to exercise at least that level of visitation.  [emphasis added]

Virant v. Brunce, 899 So. 2d 1157 (Fla. 5th DCA 2005).  May move for pendente lite suspension of visitation without modification.

Staats v. Staats, 899 So. 2d 357 (Fla. 1st DCA 2005).  To change custody you must show prior moral and relationship choices had a “direct adverse impact on the child”.

Bazan v. Gambone 902 So. 2d 174 (Fla. 3DCA 2005), Error to modify joint custody agreement and allow relocation when parents have acrimonious relationship, cannot communicate effectively, and Wife offered job with twice the income and could live rent free with her Mother.  This did not warrant substantial change of circumstances.

Relocation

Shafer v. Shafer, 898 So. 2d 1053 (Fla. 4th DCA 2005).  Relocation alone is not a substantial change of circumstances unless it is inconsistent with the terms of the final judgment.  The child is anchored within a geographical radius wherein these visitation rights can be reasonable exercised.  (Does not apply to those agreements that require open and liberal visitation, must have specific schedule).

Paternity

Stephens v. Boswell, 915 So. 2d 717 (Fla. 5th DCA 2005).  Res judicata applies to paternity judgment.  Good discussion of intrinsic v. extrinsic fraud and 1.540 motions.  Public policy not to deprive child of parental support based on facts that could have been easily determined prior to the entry of judgment.

Parker v. Parker, 916 So. 2d 926 (Fla. 4th DCA 2005).  The issue of paternity misrepresentation is a matter of intrinsic fraud, and therefore muse be raised within a year of the final judgment pursuant to Rule 1.540.

Lander v. Smith, 906 So. 2d 1130 (Fla. 2nd DCA 2005), Modifies Privette, 617 So.2d 305 (Fla. 1993).

Attorneys’ Fees

Lashkajani v. Lashkajani, 911 So. 2d 1154 (Fla. 2005).  Prevailing party provision regarding validity of prenuptial agreement is enforceable.

Schmigel v. Cumbi Concrete Co., 915 So. 2d 776 (Fla. 4th DCA 2005).  57.105 21 day “safe-harbor” notice only required when party requests fee.  Court may award fees pursuant to 57.105 without having to provide notice.

Ferrara v. Community Devlopers, Ltd, 917 So. 2d 907 (Fla. 4th DCA 2005).  Under 57.105, to preserve error, you must object to failure to provide 21 day “safe-harbor” notice at trial.  Otherwise, the objection is waived.

Demayo v. Demayo, 30 Fla. L. Weekly D2692 (Fla. 3rd DCA  2005), Client may waive homestead exemption by signing retainer that provides “…the client hereby knowingly, voluntarily and intelligently waives his right to assert the homestead exemption in the event a charging lien is obtained to secure balance of attorney’s fees and costs.” Demayo v. Deborah Chames & Heller & Chames, 2006 Fla. App. LEXIS 3619 (Fla. Dist. Ct. App. 3d Dist., Mar. 15, 2006)

Baime v. Baime, 912 So. 2d 1273, (Fla. 4th DCA 2005).  Section 63.1301, Florida Statutes does not allow income deduction order to be used solely for the payment of attorneys’ fees.

Miller v. Miller, 911 So. 2d 1274 (Fla. 4th DCA 2005).  Must plead fees before hearing in order to be awarded them.

Williams v. Williams, 892 So. 2d 1154 (Fla. 3DCA 2005).  Agreement provided party to pay child support and contained prevailing party language.  Court erred by not awarding fees when failure to pay support was not “willful breach”.

Garcia v. Garcia, 900 So. 2d 606 (Fla. 3DCA 2005), where settlement agreement provided that attorney’s fees awarded to prevailing party in post judgment matters, error to award less than reasonable fees and costs due to inability to pay.

Franklin & Criscuolo v. Etter, 30 Fla. L. Weekly D1941 (Fla. 3rd DCA 2005).  Charging liens attach to the proceeds of property distributions and have priority over judgment liens.  However, a guardian ad litem’s fee may take precedence.  Franklin & Criscuolo v. Etter, 924 So. 2d 947, 2006 Fla. App. LEXIS 4954 (Fla. Dist. Ct. App. 3d Dist., Apr. 5, 2006)

May v May, 908 So. 2d 558 (Fla. 2nd DCA 2005).  Error not to reserve on fees when reservation is  stipulated.

30 day issue:

Family Law Rules of Procedure – Rule 12.525 Amendment, 897 So. 2d 467 (Fla. 2005).  Rule 1.525 does not apply.

Caldwell v. Caldwell, 909 So. 2d 976 (Fla. 2nd DCA 2005).  30 day rule in 1.525 applies to post judgment modification actions.

Wilkinson v. Wlkinson (Fla. 4th DCA 2004)  Reservation for fees tolls 30 day time limit in Rule 1.525.

Smith v. Smith, 30 Fla. L. Weekly D373 (Fla. 1DCA 2004).  May serve motion for fees after court finds entitlement after 30 days if delay is excusable.  Smith v. Smith, 2005 Fla. App. LEXIS 6620 (Fla. Dist. Ct. App. 1st Dist., May 6, 2005)

Agreements

Romeo v. Romeo, 907 So. 2d 1279 (Fla. 2nd DCA 2005).  Waiver of divorce rights need to be clear and expressed.  Agreeing that one person would not contest divorce if filed does not waive any rights.

Procedure / Evidence

Porter v. Porter, 913 So. 2d 691 (Fla. 3rd DCA 2005).  Proper to file modification in Dade County (different county than divorce) where residential parent and children reside there and no proceedings were pending in original court when modification was filed.

Murphy v. Murphy, 912 So. 2d 353 (Fla. 3rd DCA 2005).  Court cannot enforce general master’s order while exceptions are pending.

Cargile-Schrage v. Schrage; 908 So. 2d 528 (Fla. 4th DCA 2005) No abuse of discretion in denying wife’s motion for continuance, filed after 2 different attorneys withdrew and 3rd attorney would represent Wife only if judge continued trial.

Belk v. Belk, 903 So. 2d 337 (Fla. 2nd DCA 2005), Abuse to grant relief from judgment pursuant to 1.540(b)(2) based on Guardian’s report that should have been discovered before trial.

Ferencz v. Ferencz, 897 So. 2d 558 (Fla. 2nd DCA 2005).  Although hearing officer had authority to hear support enforcement issues, without consent of both parties, hearing officer had no authority to award fees.

OBrien v. O’Brien, 899 So. 2d 1133 (Fla. 5th DCA 2005).  Intercepted Communications – Spyware program installed on computer that intercepted communications and Court properly excluded evidence obtained illegally.

Levitt v. Levitt, 699 So.2d 755 (Fla. 4th DCA 1997).  It is only when a term in a marital settlement agreement is ambiguous or unclear that the trial court can consider extrinsic evidence (i.e. parole evidence) as well as the parties’ interpretation of the contract to explain or clarify the ambiguous language.

Guilder v. Florida, 899 So. 2d 412 (Fla. 4th DCA 2005).  Recording face to face conversation without prior consent does constitute an interception of an oral communication in violation of section 934.03.

Name Change:

Nielsen v. Musgrove, 912 So. 2d 1255 (Fla. 1st DCA 2005), A court may only change a minor’s last name over objection when the evidence establishes it is in the best interest of the child to do so.

 

Cases that distinguish Berg-Perlow:

TD v. DCF, 924 So. 2d 827 (Fla. 2nd DCA 2005).  There is no bright line test for reversing proposed final judgment signed by Court.

Chivari v. Ferrell, 909 So. 2d 546 (Fla. 4th DCA 2005).  Court that signed Husband’s proposed Final judgment of dissolution not per se reversible.  Court did change fee provision in judgment.

Contempt /Enforcement

Burckle v. Burckle, 915 So. 2d 747 (Fla. 2nd DCA 2005).  Court cannot change custody as contempt remedy when not raised in motion and party failed to invoke the court’s jurisdiction to consider a change in custody.

Orsini v. Orsini, 909 So. 2d 558 (Fla. 4th DCA 2005).  Defense of laches rejected where wife knew of Husbands whereabouts and did not seek to enforce for 5 years, Husband had remarried and acquired new financial obligations.  Husband did not prove prejudice.  See Ticktin v. Kearin, 807 So.2d 659 (Fla. 3rd DCA 2001)

Reed v. Reed, 914 So. 2d 26 (Fla. 4th DCA 2005).  Former Spouse’s obligation to make mortgage payments is in the nature of a settlement of property rights, rather than an obligation for support. (i.e. no contempt).

Robinson- Wilson v. Wilson, 918 So. 2d 335 (Fla. 4th DCA 2005) Contempt order upheld because Wife interfered with visitation.  Court upheld $12,000 fee award even though great disparity in income.

Buchanan v. Buchanan, 932 So. 2d 270 (Fla. 2nd DCA 2005).  To support finding of present ability to pay requires competent, substantial evidence.

Partridge v. Partridge, 912 So. 2d 649 (Fla. 4th DCA 2005).  Court may force sale of homestead property if obligee “acts either egregiously, reprehensibly, or fraudently to justify sell of homestead property”.

Marcus v. Marcus, 902 So. 2d 259 (Fla. 4th DCA 2005).  Error to hold Mother in contempt to take adequate steps to insure “father gets his visitation” where Wife would have to physically force children to return with Father.

Harris v. Millett- Harris, 900 So. 2d 712 (Fla. 3rd DCA 2005).  Evidence of Husband’s more than comfortable lifestyle was sufficient evidence of Husband’s purge ability.

Moncher v. Maine, 892 So. 2d 1147 (Fla. 5th DCA 2005).  Court has authority to order anger management classes even when relief not requested.

Miller v. Miller, 891 So. 2d 1201 (Fla. 4th DCA 2005).  Court cannot use discovery sanction to find ability to pay in contempt hearing.

East v. Lague, 893 So. 2d 706, (Fla. 1st DCA 2005).  Can seek contempt on obligation to pay college if intended as child support.

Annulment

Brown v. Taylor, 889 so.2d 1016 (Fla. 2DCA 2005).  A marriage that has been consummated cannot be annulled for fraud.

Appeals

Brewer v. Solovsky, 899 So. 2d 497 (Fla. 4th DCA 2005).  When a non-final appeal is pending, Court cannot enter final judgment.

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