Stephens’ Squibs – 2006

Alimony:

Kelley v. Kelley, 31 Fla. L. Weekly D3035 (Fla. 2nd DCA 2006).  Trial reversed for only awarding $1,585 in permanent alimony for 29 year marriage where wife did not work, wife conceded she could be imputed $2,450 for imputed income from work and investments when needs were $5,821 and Husband had clear ability to pay.

Squindo v. Osuna-Squindo, 943 So. 2d 232 (Fla. 3rd DCA 2006).  Permanent and lump sum alimony reversed in 25 year marriage because it exceeds husband’s ability.

Norman v. Norman, 939 So.2d 240 (Fla. 1st DCA 2006).  Error to order spouse to obtain life insurance as security for alimony and child support without evidence of cost and availability.

Pavese v. Pavese, 932 So.2d 1269 (Fla. 2nd DCA 2006).  When awarding or denying alimony, a court is required to make factual findings pertinent to the marital standard of living, the durations of the marriage, the age and health of the parties, and the economic circumstances of the parties.  Failure to do this is reversible error.  Relative to the issues of alimony and child support, a court is required to determine each party’s income.

Bode v. Bode, 920 So. 2d 841  (Fla. 4th DCA 2006).  Court abused discretion in awarding rehabilitative alimony in 2 year marriage.  No evidence length of marriage affected wife’s ability to earn income.

Searcey v. Searcey, 923 So. 2d 528  (Fla. 2nd DCA 2006).  Court abused discretion in awarding Husband $492 in permanent alimony in 32 year marriage where Wife earned $101k gross and Husband was imputed $11k.

Gomes-Cruz v. Cruz, 919 So. 2d 559 (Fla. 5th DCA 2006).  No abuse of discretion in denying permanent alimony in 7.5 year marriage when 34 year old wife claimed to be permanently disabled.

Baig v. Baig, 917 So. 2d 379  (Fla. 2nd 2006).  Error to award rehabilitative alimony without written findings of fact.

Imputation of Income:

Jobe v. Sassano, 934 So. 2d 576 (Fla. 1st DCA 2006).  Court must explain how it reaches imputed income.  Court should consider in-kind payments to the extent the reduce living expenses.

Swain v. Swain, 932 So. 2d 1214 (Fla. 1st DCA 2006).  Cannot impute income beyond occupational qualification.  Court erred in imputing to Wife what accountant would make due to Wife’s failure to pursue accounting degree.

Bowen v. Bowen, 937 So. 2d 741 (Fla. 4th DCA 2006).  Wife’s testimony she earned $10 an hour and had potential of earning $12 an hour along with findings Wife voluntarily left work with no plans to regain employment was sufficient to support imputation of income at $1,300/month.

Roca v. Roca, 937 So. 2d 736 (Fla. 4th DCA 2006).  A court may impute income where a party is willfully earning less and has the capability to earn more by use of its best efforts.  Income may only be imputed at a level supported by the evidence of employment potential and probable earnings based on history, qualifications and prevailing wages.  Absent special circumstances, it is error to impute income in an amount higher then that ever earned.

Vazquez v. Vazquez, 922 So. 2d 368 (Fla 4th DCA 2006) No abuse in discretion in imputing income to husband where he voluntarily left employment, husband failed to make good faith effort to find employment.

Jones v. Jones, 920 So. 2d 800 (Fla. 5th DCA 2006)  Trial Court is required to set forth amount and source of imputed income.  A diploma alone does not guarantee employment and does not constitute evidence for imputation of income.

Custody:

Knifley v. Knifley, 944 So. 2d 1136 (Fla. 5th DCA)  Specific factors not required to be articulated in judgment as long as best interests of child considered.

Small v. Fiugel-Small, (Fla. 5th DCA 2006).  Order affirmed granting mother temporary sole parental and restricting father’s visitation when father refused access during 5 week visitation and refused to return child as order by the court.

Rahall v. Cheaib- Rahall, 937 So. 2d 1223 (Fla. 2nd DCA 2006).  Court’s could sanction Husband for failure to pay temporary attorney fees by failing to conduct discovery but could not limit Husband’s child related issues.

Loughlin v. Loughlin, 935 So. 2d 82 (Fla.5th DCA 2006).  Judgment affirmed specifying husband’s visitation be supervised, submit to drug testing, obtain evaluation by psychologist.  Requirement which authorized release of husband’s psychological documents as his mental health was not element of claim or defense.

Schumaker v. Schumaker, 931 So. 2d 271 (Fla. 5th DCA 2006).  Court failed to award any holiday or summer visitation.  The granting of limited visitation is problematic.  However, trial courts have discretion to order visitation based on the facts of each case.  In this case, the evidence justified the restriction.

Kasdorf v. Kasdorf, 931 So. 2d 257 (Fla. 4th DCA 2006).  No abuse in awarding Husband primary where wife sabotaged visitation and lacked inclination to foster loving relationship between child and Dad.  Ultimate decision making affirmed when Wife first objected to issue in appeal.  Cross petitions for primary residential parenting coupled with support for decision in evidence is sufficient notice that medical decisions would be at issue.

Staats v. Staats, 924 So. 2d 82 (Fla. 1st DCA 2006)  UCCJEA Case.  Modification started in Florida, even if parents have no further ties to Florida prevails over subsequent filed modifications.

Hamilton v. Hamilton, 922 So. 2d 263 (Fla. 2nd DCA 2006).  Court abused  discretion in awarding primary to mother where Father was experienced and capable custodial parent who posed no threat to child, and mother alcoholism and chronic mental condition previously endangered child and posed threat of doing so in the future.

Wakeman v. Dixon, 921 So. 2d 669 (Fla. 1st DCA 2006)  Agreement providing for visitation with non parent unenforceable even when non-parent is sperm donor who lived with mother.  The Florida Supreme Court has held that under the privacy provision of the Florida Constitution, a third party, including grandparents, cannot be granted visitation absent evidence of demonstrable harm to the child.  The State constitutional right to privacy is much broader in scope, embraces more privacy interest, and extends more protection than its federal counterparts.

Rimes v. Rimes, 921 So. 2d 655 (Fla. 2nd DCA 2006) Error not to apply substantial change in circumstances test when agreement provides for supervised visitation.

Hancock v. Hancock, 915 So. 2d 1277 (Fla. 4th DCA 2006), Father and Mother could not agree on whether to continue to home school children.  Under these circumstances Court should grant one parent exclusive decision making for educational decisions.

Relocation:

Lancaster v. Briley, 932 So. 2d 549 (Fla. 1st DCA 2006).  Trial Court abused discretion by denying relocation request when overwhelming evidence proved quality of life for minor child would be greatly improved by relocation.  In cases where final judgment incorporates expressed prohibition against relocation, moving party must show a change of circumstances.

Exclusive Use of Marital Home:

Rumler v. Rumler, 932 So. 2d 1165 (Fla. 2nd DCA 2006)  Portion of pension that is disability benefit should be excluded from equitable distribution.

Holitzner v. Holitzner, 920 So. 2d 827 (Fla. 4th DCA 2006)  Set offs and credits must be specified in final judgment or agreement pursuant to 61.077.

Delgado v. Delgado, 920 So. 2d 661 (Fla. 2nd DCA 2006); Recognizes Zeller, 396 so.2d 1177 (Fla 4th DCA 1981) and Dorsett, 902 So.2d 947 (Fla 4th DCA 2005) that orders granting custodial parent exclusive use of home  are generally accepted principles of Florida divorce law, unless lengthy period of exclusive occupancy is not financially feasible or whether compelling financial circumstances require the sale of the marital home.

Equitable Distribution:

Willman v. Willman,  31 Fla. L. Weekly D3103 (Fla. 1st DCA).  Filing of divorce is bright line test for categorizing marital assets and liabilities absent a settlement agreement to the contrary.

Joachim v. Joachim, Error to value Husband’s contractors license (cost of obtaining it) in equitable distribution.

Landay v. Landay, 31 Fla. L. Weekly D2362 (Fla. 4th DCA 2006).  Follows Landay in formula of special equity (non-marital contribution) in marital home.  In addition to spouses one half share, the contributing spouse acquires a special equity in the property equal to one half the ratio which the spouses contribution bears to the entire consideration.

Hay v. Hay, 944 So. 2d 1043  (Fla. 4th DCA 2006).  No abuse in determining husband failed to carry burden in proving no gift was intended when marital home bought from pre-marital funds.  All items bought from line of credit marital regardless of how titled.

Haley v. Haley, 936 So. 2d 1136 (Fla. 5th DCA 2006).  Trial court erred, capital loss carry forwards from wife’s non-marital property not subject to equitable distribution.

Smith v. Smith, 934 So. 2d 636 (Fla. 2nd DCA 2006).  Trial court reversed for 1) adopting husband’s proposed equitable distribution which omitted three credit cards without written findings, 2) court failed to award wife portion of the husband’s pension that accrued during the marriage.

Williams v. Williams, 935 So. 2d 54 (Fla. 1st DCA 2006).  Follows Pullo, which compels reversal of declaring DROP benefits non-marital.

Stough v. Stough, 933 So. 2d 603 (Fla. 1st DCA 2006).  Trial court reversed for declaring land purchased from funds from Wife’s irrevocably trust, but Court overlooked fact funds went through parties joint checking account.  Wife failed to overcome presumption that $95,000 advance from irrevocable trust that no gift to the couple was intended.

St. Fleur v. St. Fleur, 929 So. 2d 734 (Fla. 4th DCA 2006).  Payment of marital debt is property division and not in nature of support and therefore cannot be paid through support disbursement.

Hardee v. Hardee, 929 So. 2d 714 (Fla. 1st DCA 2006).  Error to award contingent settlement from lawsuit in equitable distribution.  Any such settlement in this case would represent future lost wages, disability and medical expenses, not a marital asset.  Only the portion paid to the injured spouse as compensation for past lost wages and earning capacity is to be considered to be marital.

Wallace v. Wallace, 922 So. 2d 1008 (Fla. 1st DCA 2006)  Trial court did not err in awarding special equity to Wife in marital enhancement of pre-marital residence.

Boutwell v. Adams, 920 So. 2d 151 (Fla. 1st DCA 2006)  Unequal distribution remanded for clearer findings of fact.

Kusterer v. Kusterer, 933 So. 2d 542 (Fla. 1st DCA 2006)  Follows Zold, 911 So.2d 1222 (Fla. 2005) Error to adopt bright line rule by including pass through income from sub-s (even though not distributed to shareholders) in determining income for child support purposes.

Grieco v. Grieco, 917 So. 2d 1052 (Fla. 2nd DCA 2006)  Wife’s name on account alone, without more, does not transform inheritance into marital asset.   Court has latitude to award credits for expenses paid from non marital funds.

Enforcement:

Granell v. Granell, 940 So. 2d 513 (Fla. 2nd DCA 2006).  Finding husband in contempt for failure to provide health insurance to the Wife.  However, Court could not require husband to pay for all past and future medical bills without finding expenses are necessary and examination of husband’s ability.

Dileo v. Dileo, 939 So. 2d 181 (Fla. 5th DCA 2006).  Record failed to establish husband was properly notified of hearing.  Contempt order legally insufficient where order did not contain specific findings of address or ability to comply with purge.

Oglesby v. Oglesby. 921 So. 2d 849 (Fla. 2nd DCA 2006).  Error to hold husband in contempt for failing to stay in military in order for pension to vest.

Bongiorno v. Yule. 920 So. 2d 1209 (Fla. 1st DCA 2006)  Lump sum alimony enforceable by contempt if intended for support rather than property settlement.

Robinson-Wilson v. Wilson, 932 So. 2d 330 (Fla. 4th DCA 2006).  Despite disparity in income, Husband was entitled to fees when Wife found in contempt for interfering with visitation.

Minda v. Ponce, 918 So. 2d 417 (Fla. 2nd DCA 2006)  Error to find someone in contempt when intent was not plainly expressed in written order.

Modification:

Reiner v. Reiner, 942 So. 2d 944 (Fla. 5th DCA 2006).  Where final judgment provided custody to aunt, Father did not have absolute right to custody upon release from jail.  Evidentiary modification hearing required.

Conville v. Murphy, 942 So. 2d 924 (Fla. 5th DCA 2006).  Reversed when permanent custody to Father at a hearing that was to consider Father’s request for emergency hearing.

Williams v. Williams, 939 So. 2d 1154 (Fla. 2nd DCA 2006).  Court could not modify provisions of property division.  No showing of duress.

Braswell v. Braswell, 935 So. 2d 604 (Fla. 4th DCA 2006).  Trial court abused discretion when it treated father’s motion as emergency and then ordered a temporary modification of custody.  There was no evidence in this record of an actual emergency.

Alois v. Alois, 937 So. 2d 171 (Fla. 4th DCA 2006).  The Court should consider non-custodial parent’s basic necessities such as food, housing, utilities and transportation to determine if parent can economically survive when deciding to deviate from child support.

Novoa v. De Socarraz, 935 So. 2d 40 (Fla. 3rd DCA 2006).  Reverses trial court who granted Father’s request to alter visitation schedule in order to attend family reunion.  Did not meet standards of modification.

Mendes v. Mendes, 947 So. 2d 450  (Fla. 4th DCA 2006).  A claim of fluctuating income due to market conditions does not justify termination of alimony unless a permanent, not fluctuating, loss of ability to earn income at previous levels is evidenced.

Attorney Fees:

Griffith v. Griffith, 941 So. 2d 1285 (Fla. 4th DCA 2006).  Error to award fees for litigating over fees on a contractual basis (i.e. provided for in settlement agreement).

Kusick v. Kusick, 944 So. 2d 1081 (Fla. 2nd DCA 2006).  Order awarding fees must contain specific findings as to reasonableness of hours and rate.

Moss v. Moss, 939 So. 2d 159 (Fla. 2nd DCA 2006).  Husband failed to seek fees pursuant to prevailing party in prenup so failed to reserve on appeal.

Pubillones v. Lyons, 31 Fla. L. Weekly D2398 (Fla. 3rd DCA 2006).  Where there is a disparity in income, it is abuse in discretion to require party with smaller income to bear their entire burden of fees.  In this case, wife limited income and had assistance from family.  Court did not abuse discretion in denying fees.

Bogos v. Bogos, 936 So. 2d 1184 (Fla. 2nd DCA 2006).  Fact that Wife’s brother paid her attorneys’ fees not enough to deny request.

Peterson v. DeLuca, 936 So. 2d 752 (Fla. 4th DCA 2006).  Award of attorneys fees reversed when no evidence submitted on the matter and the trial court lacked basis for making said finding.

Ulbrich v. Coolidge, 935 So. 2d 607 (Fla. 4th DCA 2006).  In cases involving settlement agreement with prevailing party provision, section 61.16 cannot be used as bass for fee unless child related proceeding.

Vinovich v. Bookstein, 933 So. 2d 731 (Fla. 4th DCA 2006).  If the party is found in contempt, it is proper for the court to compensate the inured party by assessing attorney’s fees for the contempt proceedings.

Vanderpol v. Frengut, 932 So. 2d 1251 (Fla. 4th DCA 2006).  Error to award fees under 57.105 where opposing party withdrew challenged motion within 21 days.

Roca v. Roca, 937 So. 2d 736 (Fla. 4th DCA 2006).  When fees awarded for inappropriate Court conduct (Rosen), Court must make identifying findings of facts associated with misconduct.

Longmeier v. Longmeier, 921 So. 2d 808 (Fla. 1st DCA 2006)  Error to award fees for time fees were not requested.

Derrevere v. Derrevere, 924 So. 2d 987 (Fla. 4th DCA 2006).  If court equalized income and assets, temporary attorney fees should be refunded.

Settlements:

Matos v. Matos, 31 Fla. L. Weekly D33 (Fla. 4th DCA 2006).  Purported oral agreement which gave wife no relief, with evidence of coercion not enforceable unless it is express (written) agreement).

Mccutcheon v. Tracy, 928 So. 2d 364 (Fla. 3rd DCA 2006).  Marital settlement agreements governed by contract rule.

Temporary Support:

Johnson-Gainer v. Gainer, 921 So. 2d 798 (Fla. 5th DCA 2006).  Temporary support obligation should not be satisfied from marital asset unless demonstrated through substantial competent evidence that cannot meet obligation without invading marital assets.

Procedure:

Kareff v. Kareff, 943 So. 2d 890 (Fla. 4th DCA 2006).  Mathematical errors in child support calculations are matters of law reviewed de nova.

Baran v. Baran, 941 So. 2d 1233 (Fla. 2nd DCA 2006).  Court denied due process by setting emergency hearing with one day notice when attorney had notice of unavailability and 2 day delay would not be prejudicial.

Costanzo v. Costanzo, 31 Fla. L. Weekly D2841 (Fla. 3rd DCA 2006).  Sister may obtain D.V. injunction, if warranted, against brother as they are blood related.

McGoldrick v. McGoldrick, 940 So. 2d 1275 (Fla. 2nd DCA 2006).  Reversed final judgment rendered 8 months after hearing with inconsistent findings not supported by record.

Carroll v. Carroll, 936 So. 2d 706 (Fla. 4th DCA 2006).  Failure to place financial affidavits in evidence, while technically in improper, was waived by lack of contemporaneous objection.

Hesselton v. Hesselton, 935 So. 2d 80  (Fla. 2nd DCA 2006).  Husband was resident of Massachusetts and has not submitted to jurisdiction of Florida Courts.  Because Courts do not have jurisdiction over husband, it cannot adjudicate issues of alimony and property rights but can dissolve marriage.

Cerase v. Dewhurst, 935 So. 2d 575 (Fla. 3rd DCA 2006).  Once a trial court appoints a magistrate to take testimony and make findings, it loses the prerogative of substituting its judgments for that of the magistrate.  Where exceptions to a magistrate’s report have been filed, a trial court reviews the records to determine whether the magistrate’s findings of facts and conclusions of law are supported by competent evidence or clearly erroneous or whether the magistrate misconstrued the legal effects of the evidence.

Van Epps v. Hartzell, 934 So. 2d 590 (Fla 5th DCA 2006).  Lack of transcript prevent this court from reviewing sufficient of the evidence to support lower court’s findings.  However, error on face of order can be addressed.  Court made no findings on attorneys fees and therefore fee award remanded.

Smith v. Smith, 932 So. 2d 638 (Fla. 2nd DCA 2006).  If exceptions are filed to general master’s report, hearing is mandatory if requested.

DOR v. Long, 937 So.2d 1235 (Fla. 1st DCA 2006).  409.2563(2)(f) requires DOR to terminate.

Bouquety v. Bouquety, 933 So. 2d 610 (Fla. 3rd DCA 2006).  Florida Court that issues child support order may not modify or enforce its own order if the order has been modified by another state.

Kirsch v. Kirsch, 933 So. 2d 623 (Fla. 4th DCA 2006).  Where there is a latent ambiguity, the court may consider parole evidence, including “evidence as to the interpretation which the parties may appear to have placed thereon by their actions and the manner of their dealings thereunder.

Gonzalez v. Gonzalez 936 So. 2d 27 (Fla. 5th DCA 2006).   Trial court abused discretion and overturned for granting motion to transfer case to Puerto Rico for forum non conveniens.  Under section 47.122 plaintiff’s forum selection is presumptively correct, and the burden is on the other party to show either undue expense or substantial inconvience.  Affidavits need to be submitted to support motion / response.

Bender v. Bender, 931 So. 2d 282 (Fla. 5th DCA 2006).  Final judgment that reserved jurisdiction for one year “in regard to propriety of alimony award” not final order subject to appeal even though labeled “Final Judgment”.

Weber v. Weber, 31 Fla. L. Weekly D1541 (Fla. 2nd DCA 2006).  Wife’s nonimmigration status does not preclude her, as a matter of law, from establishing Florida residency pursuant to section 61.021, Florida Statutes.  In this case the Wife presented competent, substantial evidence that she resided in the State of Florida for six months and had a bona fide intent to remain in Florida indefinitely.

Caldwell v. Caldwell, 921 So. 2d 759 (Fla. 1dt DCA 2006).  Husband waives defense of lack of personal jurisdiction by entering general appearance.

Lopez v. Lopez, 920 So. 2d 1165 (Fla. 3rd DCA 2006).  When default entered due to discovery violations, Court still required to hold evidentiary final hearing.

Hernandez v. Hernandez, 924 So. 2d 853 (Fla. 2nd DCA 2006).  Appeal pending, appellate court relinquished jurisdiction for express purpose of calculating temporary child support, Court exceeded jurisdiction by taking onto account 50/50 custody split.

Jenkins v. Jenkins, 915 So. 2d 1248 (Fla. 4th DCA 2006) Florida has personal jurisdiction even when husband’s actual presence was diminimis where marital home in Florida, house homesteaded, parties registered to vote in Florida and had Florida’s driver’s license.

Jarp v. Jarp, 919 So. 2d 614 (Fla. 3rd DCA 2006), Factual allegations in motion to disqualify legally insufficient based on dispute between attorney and judge 20 years ago when Judge last granted recusal 12 years ago.

Grandparent Visitation:

Forbes v. Chapin, 917 So. 2d 948 (Fla. 4th DCA 2006).  Despite stipulation that grandparent would have visitation, grandparent had no right to notice in adoption.  Natural parents privacy rights prevail.

Misc:

Doyle v. Owens, 936 So. 2d 1173 (Fla 1st DCA 2006).  Good dissent discussion about changing child’s surname in paternity cases.

Marlowe v. Brown, 944 So. 2d 1036 (Fla. 4th DCA 2006).  Husband’s death left Wife in legal position of one whose marriage was terminated by death, not final judgment.  Interlocutory orders in divorce proceedings generally do not survive dismissal of lawsuit upon death of party.

Epstein v. Epstein, 915 So. 2d 1272 (Fla. 4th DCA 2006) One who seeks the aid of equity must do so with clean hands.

Joslin v. Joslin, 933 So. 2d 106 (Fla. 5th DCA 2006).  Abuse of discretion means no reasonable person could differ with respect proprietary actions of trial judge.

L.M.C. v. DCF, 935 So.2d 47 (Fla. 5th DCA 2006).  Error to deny parents right to present evidence as to probable cause at shelter hearing in dependency.

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