Stephens Squibs’ – 2008

Alimony:

Perkovich v. Humphrey-Perkovich, 2 So. 3d 348 (Fla. 2nd DCA 2008). $1,000/month alimony reversed where Husband makes $450K/yearly and Wife makes $320,000. Disparate incomes alone do not justify alimony. Remanded for consideration of nominal alimony based on medical condition.

Beebe v. Beebe, 994 So. 2d 484 (Fla. 5th DCA 2008). Not per se improper to equalize income by alimony especially when there is a substantial and dramatic reduction in their standard of living as a result of the marital breakup and an equalization of their net incomes would place both parties in an equal miserable situation of not having enough money to support their lifestyle.

Berry v. Berry, 992 So. 2d 898  (Fla. 2nd DCA 2008). Permanent alimony affirmed on eleven year marriage, there was substantial competent evidence of Wife’s need and Husband’s ability.

Cogen v. Cogen, 992 So. 2d 865 (Fla. 5th DCA 2008). Error to award rehabilitative alimony where no rehabilitative plan.

Mcleod v. Mcleod, 989 So. 2d 1255 (Fla. 1st DCA 2008). Trial Court reversed for applying 6% rate of return on investment without any evidence.

Carbaugh v. Carbaugh, 33  FLA. L. WEEKLY  D1875 (Fla. 3rd DCA 2008). Alimony amount reversed when based on housing expenses living in Keys when Wife planned to live in Alabama, a less expensive location.

Crosson v. Crosson, 989 So. 2d 19 (Fla. 2nd DCA 2008). Court reversed for requiring life insurance to insure alimony obligation when Court failed to make necessary findings regarding parties’ insurability, cost of insurance, ability to afford insurance, special circumstances that warrant.

Ritter v. Kieszkowski, 980 So. 2d 1271 (Fla. 3rd DCA 2008). Award of rehabilitative alimony in 14 month marriage. Reversed where Wife did not work in chosen field she was qualified for and no evidence Wife’s earning ability suffered during marriage.

Mihaita v. Batista-Mihatia, 983 So. 2d 36 (Fla. 4th DCA 2008). Court reversed for awarding permanent alimony in 13 year marriage. Children age 14 and 10 did not justify permanent alimony.

Trespalacios v. Trespalacios, 978 So. 2d 858 (Fla. 2nd DCA 2008). Despite Zold, Court did not err in imputing pass through income when in prior years Husband took pass through for personal expenses.

Stewart v. Stewart, 976 So. 2d 1224 (Fla. 4th DCA 2008). Error to include mechanism to automatically increase alimony based on future increase in Husband’s income. Especially when Husband had current ability to pay all of wife’s needs.

Storey v. Storey, 979 So. 2d 1057 (Fla. 2nd DCA 2008). Court reversed for awarding alimony that included children’s needs and awarding child support. Impermissible double dipping.

Salazar v. Salazar, 976 So. 2d 1155 (Fla. 4th DCA 2008) Error not to award nominal alimony in long term marriage.

Parker v. Parker, 976 So. 2d 104 (Fla. 2nd DCA 2008). Court reversed for abusing discretion in awarding permanent alimony without competent evidence.

Benitez v. Benitez, 976 So. 2d 75 (Fla. 3rd DCA 2008). Court did not err in dismissed alimony modification action when parties agreed alimony was non-modifiable.

Schlagel v. Schlagel, 973 So. 2d 672 (Fla. 2nd DCA 2008). Court affirmed for imputing $40,000 to Wife, an amount that exceeded her previous earnings. Wife had law degree but couldn’t pass bar exam. Court found Wife did not make best effort to this and fell into “special circumstances” exception. Court reversed for not awarding nominal income in 21 year marriage.

White v. White, 974 So. 2d 504 (Fla. 1st DCA 2008). Court reversed for awarding $77,000 in lump sum alimony without making findings of fact as required by section 61.08(2).

Leonard v. Leonard, 971 So. 2d 263 (Fla. 1st DCA 2008). Trial Court abused discretion by imputing $35,000/yearly to Former Husband. No finding of fact. Trial Court must 1) conclude termination of income was voluntary & 2) determine whether underemployment resulted from pursuit of spouses own interest or less than diligent/bona fide effort to find similar income.

Custody:

Aguirre v. Aguirre, 985 So. 2d 1203 (Fla. 4th DCA 2008). Final judgment facially deficient when it awards wife primary residency but fails to address shared parental responsibility.  However, not error to fail to make written findings on 61.13 custody factors, so long as court finds it’s in children’s best interest.

Hill v. Hill, 976 So. 2d 1192 (Fla. 2nd DCA 2008). Trial Court reversed for modifying visitation with no change of circumstances. Wife did not appear at hearing, so award could have been sanctioned…but, who knows?  Sanction does not warrant modification case remanded.

Crossin v. Crossin, 979 So. 2d 298 (Fla. 4th DCA 2008). Custody reversed when Husband prohibited from presenting custody evidence when pleadings struck in a divorce case, the striking of a pleading is a sanction with no impact on child custody issues.

Williams v. Primerano, 973 So. 2d 645 (Fla. 4th DCA 2008). Court reversed for awarding temporary custody when only motion for pick up was noticed.

Todd v. Todd, 972 So. 2d 1003 (Fla. 4th DCA 2008). Visitation provisions reversed as a matter of law when; a) visitation is waived if father is twenty minutes late; b) too vague to restrict over nights until Father has “ stable residence” & “separate area for the child and”;  c) visitation does not provide holiday schedule.

Keller v. Smith, 971 So. 2d 191 (Fla. 1st DCA 2008). Court remanded for awarding shared responsibility when Husband was a violent felon and judgment was silent as to the fact.

Relocation:

Sylvester v. Sylvester, 992 So. 2d 296 (Fla. 1st DCA 2008). Court reversed for allowing parent with two year old to relocate in five years. The Court should wait and make decision at that time.

Arthur v. Arthur, 987 So. 2d 212 (Fla. 2nd DCA 2008). Trial Court affirmed for allowing parent to relocate 18 month child upon child’s third birthday.

Arthur v. Arthur, 987 So. 2d 212 (Fla. 2nd DCA 2008). Court affirmed for allowing relocation 20 months after final judgment.

Norris v. Heckerman, 33  FLA. L. WEEKLY  D335 (Fla. 1st DCA 2008). Court granting relocation affirmed even without strong findings of fact, strong dissent.

Exclusive Use of Marital Home:

Asherman v. Asherman, 977 So. 2d 763 (Fla. 2nd DCA 2008). Trial Court affirmed for awarding exclusive use and possession of house until the death of Wife’s grandparents. Court found agreement between parties that Grandparents could reside there for the rest of their lives and Grandparents provided $54,000 towards purchase of residence and $41,000 in additional improvements. Husband gets credit for rent from Wife’s occupancy.

Equitable Distribution:

Smith v. Smith, 996 So. 2d 924 (Fla. 1st DCA 2008). Court’s award to Wife of Husband’s one-half pending social security/disability remanded to determine damages for future loss (non-marital).

Hitchcock v. Hitchcock, 992 So. 2d 436 (Fla. 4th DCA 2008). Unequal distribution reversed in long term marriage where Wife’s initial contribution was commingled and presumptively a gift to Husband.

Wilson v. Wilson, 992 So. 2d 395 (Fla. 1st DCA 2008). Court reversed for classifying entire non-marital asset as marital where value of nonmarital asset increased by marital efforts. Only enhancement becomes marital and Court needs findings.

Sweet v. Sweet, 993 So. 2d 91 (Fla. 2nd DCA 2008). If a person is ousted from a home per a final judgment, and no rental reimbursement is provided, it is assumed the trial court intended none.

Cardella-Navarro v. Navarro, 992 So. 2d 319 (Fla. 3rd DCA 2008). Trial Court reversed after awarding wife 4.5 million in business debt when short term marriage, Husband controlled and mishandles business and most of debt arose after separation.

Brown v. Brown, 989 So. 2d 763 (Fla. 4th DCA 2008). Judge Colin reversed after rejecting both parties methodology for calculating value and courts valuation was inconsistent with findings with no evidentiary basis.

Juliano v. Juliano, 991 So. 2d 394 (Fla. 4th DCA 2008). Judge Brunson reversed in awarding non-party creditor judgment on homestead property, instead of allocating debt to one party or another.

Worthen v. Worthen, 991 So. 2d 400 (Fla. 2nd DCA 2008). Court reversed for ordering partition when neither party requested it.

Franklin v. Franklin, 988 So. 2d 125 (Fla. 2nd DCA 2008). Court reversed for 70/30 unequal distribution based solely on basis of wealth accumulated by parties from gifts from Wife’s parents.

Kay v. Kay, 33  FLA. L. WEEKLY  D2065 (Fla. 5th DCA 2008). Court reversed for considering disability insurance proceeds as marital property even when disabled spouse allowed policy to lapse and non-disabled spouse paid to reinstate it.

Rodriguez v. Rodriguez, 994 So. 2d 1157  (Fla. 3rd DCA 2008). Court reversed for considering value of non marital property in distributing the marital assets. Award of exclusive use and possession of home preferred over unequal distribution.

Kovats v. Gregg-Kovats, 984 So. 2d 1277 (Fla. 5th DCA 2008). No competent evidence to support findings of enterprise goodwill. Incumbent upon proponent of existence of enterprise goodwill to present evidence.

Jones v. Treasure, 983 So. 2d 634 (Fla. 4th DCA 2008). A QDRO that fails to conform to dictates of Final Judgment will be reversed. Here there was a latent ambiguity and matter for further proceedings to determine “intent of the parties”. Latent ambiguity exists where contract fails to specify the rights and duties of the parties in certain situations and extrinsic evidence is necessary for interpretation or a choice between two possible meetings.

Dwyer v. Dwyer, 981 So. 2d 1254 (Fla., 2nd DCA 2008). Trial Court erred by not finding equity created in Husband’s non marital property when proceeds from refinancing marital home were used to pay non marital debt.

Storn v. Storn, 993 So. 2d 1065 (Fla. 1st DCA 2008). Court reversed for failing to distribute two marital retirement accounts and erring by distributing a non marital account that was not commingled.

Randozza v. Randozza, 980 So. 2d 1210 (Fla. 3rd DCA 2008). Court affirmed on awarding equitable lien on Wife’s homestead property when Wife owed $180,000 equalizing payment, went bankrupt, sold house and put all proceeds into new residence.

Wolf v. Wolf, 979 So. 2d 1123 (Fla. 2nd DCA 2008). Trial Court affirmed for not valuing fractional interest in hunting cabin when no evidence presented. Case remanded to address unaddressed rental income.

Foster v. Foster, 978 So. 2d 248 (Fla. 5th DCA 2008). Trial Court reversed for not making factual findings to support unequal distribution.

Simmons v. Simmons, 979 So. 2d 1063 D897 (Fla. 1st DCA 2008).  Trial Court affirmed in not valuing assets. If no evidence to value presented, objection waived.

Erp v. Erp, 976 So. 2d 1234 (Fla. 2nd DCA 2008). Court reversed for applying discounted interest rate to equalizing payment but Court does have some discretion, just not in this case. Statutory interest must be used.

Asherman v. Asherman, 977 So. 2d 763 D885 (Fla. 2nd DCA 2008). Error to award Wife one half of pension that does not produce benefits until Husband is age sixty five (Year 2034) without reducing value to present sum.

Patman v. Patman, 978 So. 2d 832 (Fla. 3rd DCA 2008). Trial Court affirmed for valuing marital home at time of petition being filed as opposed to trial date citing Norwood v. Anapol-Norwood, 931 So 2d 951 (Fla. 3rd DCA 2006)

Schutz v. Schutz, 979 So. 2d 297 D720 (Fla. 2nd DCA 2008). Court reversed for scrivener’s error in property division.

Voronin v. Voronin, 975 So. 2d 1228 (Fla. 1st DCA 2008). Even without transcript, court erred as matter of law in equitable distribution. Court could not see form exhibits.

Bardowell v. Bardowell, 975 So. 2d 628 (Fla. 4th DCA 2008). Court reversed for not distributing Husband’s FRS Pension, finding it diminims. Preferred approach involved a reduction to present factoring in the contingencies of vesting, maturity and the pensioners.

Parker v. Parker, 976 So. 2d 104 (Fla. 2nd DCA 2008). Court abused discretion by falling to value and categorizes liabilities and assets properly.

McMillan v. McMillan, 990 So. 2d 1059 (Fla. 2008) Court reversed for failing to equally distribute capital loss carry forward listed on Wife’s financial. Court also erred by not awarding credit to Husband for paying joint expenses post filing.

Everhart v. Everhart,  976 So. 2d 1138 (Fla. 5th DCA 2008). Equitable distribution reversed for double dipping and crediting Wife with debts that were paid off during marriage by family business or Former Husband.

Nolan v. Nolan, 973 So. 2d 1243 (Fla. 4th DCA 2008) Court erred in awarding 100% furnishings to one party when both parties suggested they be divided equally.

Alverez v. Alverez, 974 So. 2d 1126 (Fla. 5th DCA 2008). Trial court reversed for categorizing a joint account as marital when only asset acquired before marriage, no commingling or otherwise untraceable. Burden shifted to Wife to prove Husband intended a gift. No evidence of gift offered.

Weaver v. Hotchkiss, 972 So. 2d 1060 (Fla. 2nd DCA 2008). Court reversed for dismissing post-judgment motion for enforcement. Circuit Court has inherent jurisdiction to enforce the dissolution judgment. The internal operation of the Court system and the assignment of judges to various divisions do not limit a particular judge’s jurisdiction.

Pfrengle v. Kay, 976 So. 2d 1134 (Fla. 2nd DCA 2008). Trial Court revered for categorizing assets as non marital based on argument purchase price was less than proceeds from sale of pre marital assets. Good co-mingling discussion. “Money is fungible, and once commingled loses its separate character.

Roth v. Roth, 973 So. 2d 580 (Fla. 2nd DCA 2008). Trial Court reversed for charging Husband with marital waste when dissipated funds were used to pay martial expense and no evidence Husband engaged in martial misconduct. Court erred in imposing equity lien on Husband’s non marital homestead property.

Keller v. Smith, 971 So. 2d 191 (Fla. 1st DCA 2008). Trial Court erred in awarding property titles in Husband’s name alone but acquired during marriage. Burden of proof on party seeking non-marital treatment.

Child Support:

Calero v. Calero, 996 So. 2d 244 (Fla. 4th DCA 2008). Summer jobs should not be included in absence of findings employment would be available in future. Court allocating 63% of child care cost to Father and 37% to Mother contrary to statute.

Smith v. Smith, 993 So. 2d 588 (Fla. 1st DCA 2008). Child Support determination revered because no evidence of Wife’s income or earnings ability.

Ponce v. Ponce, 997 So. 2d 1120 (Fla. 4th DCA 2008). Trial Court reversed for setting Husband’s income higher than the evidence supports.

Hall v. Hall, 994 So. 2d 1169 (Fla. 1st DCA 2008). Court reversed after 96% deviation. Disability income is income for purposes of child support.

Lopez v. Lopez, 994 So. 2d 374 (Fla. 3rd DCA 2008). Court did not err by averaging both parties’ child support calculations when Father has children more than 40% every other year.

Guard v. Guard, 993 So. 2d 1086 (Fla. 5th DCA 2008). Trial Court reversed for not properly handling costs of day care per support guidelines.

Posner v. Posner, 988 So. 2d 128 (Fla. 4th DCA 2008). Judge Colin reversed for imposing financial obligations (alimony, support, tuition, etc) that exhausted husband’s income. Reasonable persons can not differ as to the impropriety of actions taken by trial Court.

Cypress v. Jumper, 990 So. 2d 576 (Fla. 4th DCA 2008). Trial Court affirmed for not ordering father to pay child support. Child received $2,625/ monthly from Seminole tribe which more than met child’s need. Argument that trial court cannot relieve parent of financial responsibility failed.

Aguirre v. Aguirre, 985 So. 2d 1203 (Fla. 4th DCA 2008). Judge Rapp’s final judgment facially deficient on child support when it lacks any findings on parties’ income.

Martland v. Arabia, 985 So. 2d 681 (Fla. 4th DCA 2008).  Court reversed for downward deviation of child support and no retroactive support. Distinguishes Alois where custodial parent was financially stable. Case at hand, economic survival at issue.

Kelley v. Kelley, 987 So. 2d 1246 (Fla. 2nd DCA 2008). Explains child support where each party has one child (split custody).

Burnett v. Burnett, 995 So. 2d 519 (Fla. 2nd DCA 2008). Court reversed for 1) failing to address Wife’s temporary child support arrearage or reversing jurisdiction to do so eliminating her obligation, 2) not crediting Husband with one half of mortgage payment during exclusive use of marital home with children, 3) ordering exclusive use and possession of house without evidence to support it is financially feasible.

Vong v. Chassang, 981 So. 2d 1262 (Fla. 2nd DCA 2008). Error to award retroactive child support for period when parties were residing together.

Karten v. Karten, 983 So. 2d 17 (Fla. 3rd DCA 2008). Trial Court reversed for calculating child support on children who already emancipated.

Salazar v. Salazar, 976 So. 2d 1155 (Fla. 4th DCA 2008). Court erred in ordering 50/50 responsibility on uncovered medical when party’s income was 36% and 64%. 61.30(8) mandate pro rate.

Crossin v. Crossin, 979 So. 2d 298 (Fla. 4th DCA 2008). Error to base child support on income from illegal sources. It is against public policy to base support upon the assumption that party will violate law in order to acquire necessary funds to pay it.

Voronin v. Voronin, 975 So. 2d 1228  (Fla. 1st DCA 2008). Court erred as matter of law setting child support be referring to guidelines attached, and nothing was attached.

Jaworski v. Jaworski, 972 So. 2d 1095 (Fla. 2nd DCA 2008). Trial court reversed for not using gross up child support method (substantial parenting adjustment) when there is rotating custody.

Duffey v. Duffey, 972 So. 2d 290 (Fla. 5th DCA 2008). Trial Court erred by failing to consider properly pled request for Husband to acquire and maintain life insurance to insure alimony and child support obligations. Matter remanded back to trial court to consider whether “appropriate circumstances” exist (i.e. financial need for insurance, affordable).

Ritter v. Kieszkowski, 33  FLA. L. WEEKLY  D238 (Fla. 3rd DCA 2008). Trial Court abused discretion in awarding rehabilitative alimony with fourteen month marriage, that produced no children, and Former Wife chose not to pursue job in her field.

Karnbach v. Karnbach, 971 So. 2d 1031 (Fla. 4th DCA 2008). Where child support obligation is for multiple children, and argument is not clear to the exact amount of child support to be paid upon emancipation, hearing shall be held in accordance with chapter 61.10.

Camagana v. Cope, 971 So. 2d 243 (Fla. 2nd DCA 2008). Wife entitled to retroactive child support for portion of twenty four months prior to filing child was minor, even though child was adult when petition was filed.

Kelner v. Kelner, 970 So. 2d 933 (Fla. 4th DCA 2008). Parties may waive filing of Financial Affidavits. Is simplified dissolution where a) property already divided; b) neither party was seeking financial relief.

Todd v. Todd, 972 So. 2d 1003 (Fla. 4th DCA 2008). Even with no transcript, Trial Court erred as matter of law where no findings of income.

Paternity:

DOR v. Young, 995 So. 2d 1080  (Fla. 1st DCA 2008). Court reversed for ordering scientific testing ex parte. Improper use of disestablishment statute.

Allison v. Kuchera, 983 So. 2d 789 (Fla. 4th DCA 2008). Error to allow DNA testing when rebuttable assumption of paternity arose 60 days after acknowledgment of paternity filed (742.10 (1)) and male party treated as Father for four years.

DOR v. Brown, 980 So. 2d 590 (Fla. 1st DCA 2008). Trial court erred in allowing DNA test when paternity not in dispute.

Johnston v. Johnston, 979 So. 2d 337 (Fla. 1st DCA 2008). Court reversed for dismissing disestablishment case because paternity was decided in previous judgment. There’s a new statute; 742.18.

Enforcement:

Thompson v. Thompson, 989 So. 2d 1237 (Fla. 4th DCA 2008). Judge Burton reversed for requiring party to pay $18,005 in rehabilitative alimony arrears at rate of $95/montly. Postpones payment a decade after obligation terminates. On its face, abuse of discretion.

Koch v. Koch, 995 So. 2d 545  (Fla. 2nd DCA 2008). Court reversed, even with no transcript, for requiring obligor to secure future alimony at contempt hearing. Order was fundamentally erroneous.

Modification:

Craissati v. Craissati, 997 So. 2d 458 (Fla. 4th DCA 2008). Steven Cripps cohabitation/incarceration case.

Miller v. Miller, 992 So. 2d 346 (Fla. 3rd DCA 2008). Court reversed for modifying custody after Former Wife’s relocation was denied. Former Husband never pled or proved substantial change.  Relocation also remanded for proper factors.

Myer v. Kaye, 33  FLA. L. WEEKLY  D2662 (Fla. 4th DCA 2008).  Denial of child support modification affirmed when two of three children emancipated based on language of settlement agreement.

Helling v. Bartok, 987 So. 2d 713 (Fla. 1st DCA 2008). Final Judgment abated alimony until Former Husband graduated law school and gained employment. Trial court erred in making alimony retroactive to date Former Husband obtained employment as opposed to date Former Wife  failed to terminate alimony abatement.

Linstroth v. Dorgan, 2 So. 3d 305 (Fla. 4th DCA 2008). Oftedal affirmed for not finding a “supportive relationship (i.e. a relationship economically equivalent to a marriage).

Walker v. Walker, 983 So. 2d 706 (Fla. 5th DCA 2008). Former Husband did not need to file a petition for modification to re-establish visitation pursuant to order to pick up minor child. Order was not final, so no modification required.

Hernandez v. Hernandez, 979 So. 2d 1194 (Fla. 4th DCA 2008). Court reversed when enforcing an agreement it modified terms of final judgment.

Moniz v. Moniz,  979 So. 2d 1140 (Fla. 4th DCA 2008). Court erred in terminating child support of 18 year old child still in high school.

Calahan v. Calahan, 979 So. 2d 358 (Fla. 5th DCA 2008). Modification remanded to determine if loss of income was anticipated at time parties entered into settlement agreement.

Gaston v. McDougall v. Kanter, 982 So. 2d 34 (Fla. 1st DCA 2008). Trial Court reversed for modifying custody when evidence strongly suggested removing the child from parent whom she has spent her entire life not in child’s bets interest.

Castleberry v. Morgan, 974 So. 2d 504 (Fla. 1st DCA 2008). Judgment reversed in as much as it is awarded retroactive modification prior to filing of modification.

Perez v. Perez, 973 So. 2d 1227 (Fla. 4th DCA 2008). Court reversed for issuing direct verdict at end of Former Husbands case. Evidence demonstrated income had been severely reduced for nearly a year with no end in sight. Involuntary dismissal  properly entered only where evidence considered.

Ostman v. Ostman, 970 So. 2d 502 (Fla. 2nd DCA 2008). Upward modification of alimony reversed when Former Wife’s medical condition predeceased final judgment and had no connection with Former Wife’s ability to finish school.

Attorney Fees:

Bohner v. Bohner, 997 So. 2d 454 (Fla. 4th DCA 2008). Disparity in income does not warrant award of attorneys’ fees. Party seeking relief must establish need.

Hirschenson v. Hirshenson, 996 So. 2d 905 (Fla. 4th DCA 2008). Court reversed for denying attorneys’ fees in bankruptcy Court trying to enforce alimony and child support (from discharge). This falls under 61.16

Baker & Hostetler v. Swearingen, 998 So. 2d 1158 (Fla. 5th DCA 2008). So long as reservation to determine Wife’s attorneys’ fees and cost, attorney can pursue jurisdiction. Good discussion of all elements of a charging lien.

Voronin v. Voronina, 995 So. 2d 1049 (Fla. 2nd DCA 2008). Court’s award of fee’s reversed because no finding rate or hours reasonable.

Chhouri v. Chhouri, 2 So. 3d 984 (Fla. 2nd DCA 2008). Court reversed for awarding fees without determining reasonableness.

Ramos v. Lopez, 997 So. 2d 1119 (Fla. 3rd DCA 2008). Attorneys’ fees award reversed where final judgment placed parties in financially equiposed positions.

Mount v. Mount, 989 So. 2d 1208 (Fla. 2nd DCA 2008). Court reversed for denying Wife fees when the parties had similar net worth, but Husband had grossly disparate earning capabilities.

McNamara v. McNamara, 988 So. 2d 1255 (Fla. 5th DCA 2008). Prenuptial agreement under Georgia Law which waived all attorneys’ fees violated Florida Public Policy (against waiving temporary fees) and Court affirmed for awarding temporary fees. Good discussion of standard review for magistrates.

Klein-Brown v. Brown, 984 So. 2d 669 (Fla. 4th DCA 2008). Family Court has no jurisdiction to enforce fees between client and attorney post judgment absent timely filed charging lien.

Trespalacios v. Trespalacios, 978 So. 2d 858 (Fla. 2nd DCA 2008). Court erred in awarding temporary attorneys fees after placing parties on a “substantially equal footing”.

Richman Greer Pa v. Chernak, 991 So. 2d 875 (Fla. 4th DCA 2008). Cannot adjudicate charging lien on case with no judgment or settlement obtained.

Markovich v. Markovich, 974 So. 2d 600 (Fla. 2nd DCA 2008). Court affirmed in failing to award attorneys fees when no evidence of hours worked, rate or findings of reasonableness.

Arnsperger v. Arnsperger, 973 So. 2d 672 (Fla. 2nd DCA 2008). Court affirmed for not awarding attorney fees based on default prevailing party provision. Wife failed to allege default and order only determines validity of argreemnt.

Kasm v. Kasm, 933 So. 2d 48 (Fla. 2nd DCA 2008). Circuit Court not authorized to award “temporary appellate attorney fees” pursuant to rule 9.600 (c) (1) once mandate issued. Rule designed to give circuit court jurisdiction pending appeal. Otherwise must seek fees under 9.400 (b).

Pagonico v. Bye, 975 So. 2d 532 (Fla. 4th DCA 2008). Court reversed for awarding $14,000 in fees where party is in no better financial position.

Whittlesey v. Whittlesey, 971 So. 2d 1040 (Fla. 2nd DCA 2008). Determination of entitlement based on equitable distribution scheme which was reversed on appeal because equitable distribution is remanded, so shall the attorney fee issue.

Ruschiwal v Ruschiwal, 971 So. 2d 190 (Fla. 2nd DCA 2008). Trial Court reversed for awarding Wife 1/8 of fees after placing parties with relatively same position.

Procedure:

Fourcand v. Fourcand, 985 So. 2d 60 (Fla. 5th DCA 2008). Trial Court has sound discretion to grant or deny motion to open, modify or vacate judgment of dissolution.

Tidwell v. Tidwell, 983 So. 2d 742 (Fla. 4th DCA 2008). Judge Cook affirmed for not exercising jurisdiction per 61.515(i) because South Carolina Court previously determined child had relocated.

Burnstine v Townley, 976 So. 2d 624 (Fla. 5th DCA 2008). Court reversed for not holding requested evidentiary hearing on magistrate’s exceptions. Court abused discretion in accepting imputing income.

McGhee v. Biggs, 974 So. 2d 524 (Fla. 4th DCA 2008). Trial Court erred in not granting 1.540 motion to vacate when court lacked subject matter jurisdiction in entering order.

Cole v. Weiss, 973 So. 2d 1247 (Fla. 2nd DCA 2008). In enforcing a foreign support order, once the order is registered in Florida, it is enforceable as if it was a Florida order. If not support order, but non modifiable judgment, judgment may be domesticated per section 55.503(1).

Freeland v. Freeland, 974 So. 2d 477 (Fla. 2nd DCA 2008). Court erred in denying motion to fix mathematical error from party’s joint financial expert. Remanded for evidentiary hearing for court to consider mistake.

Miscellaneous:

Grey v. Grey, 995 So. 2d 623 (Fla. 2nd DCA 2008). Proof of residency requires corroboration.

Bohner v. Bohner, 997 So. 2d 454 (Fla. 4th DCA 2008). Good discussion of life insurance.

Vitale v. Vitale, 994 So. 2d 1242 (Fla. 4th DCA 2008). Error to transfer venue to county where original action could not be brought pursuant to theory of forum non convenient.

Haddix v. Emrea, 33  FLA. L. WEEKLY  D2501 (Fla. 2nd DCA 2008). Trial Court erred in denying emergency motion without a hearing after Court invited Husband to file an emergent motion if Wife tested positive for marijuana.

Silver v. Silver, 992 So. 2d 886 (Fla. 2nd DCA 2008). Court erred in allowing Wife to assert new claims after mediated agreement and all issues settled.

Nardi v. Nardi, 993 So. 2d 104 (Fla. 1st DCA 2008). Case remanded because Court did not restore Wife’s maiden name upon her request.

Johnson v. Johnson, 992 So. 2d 399 (Fla. 1st DCA 2008). Husband waived jurisdiction defense by filing pleadings. Court erred in conducting final hearing without Husband when Husband requested to be there.

Toiberman v. Tisera, 998 So. 2d 4  (Fla. 3rd DCA 2008). Section 44.104 (14) prohibits binding arbitration of custody, visitation of child support.

Baptiste v. Baptiste, 992 So. 2d 374 (Fla. 3rd DCA 2008). Court remanded for awarding husband’s interest in house to Wife as lump sum alimony without evidentiary hearing and statutory findings of fact to support that award.

Flood v. Stumm, 989 So. 2d 1240 (Fla. 4th DCA 2008). Judge Brunson reversed for allowing production of parties medical records in custody dispute when mental health not an issue.

Marrs v. Marrs, 988 So. 2d 137 (Fla. 1st DCA 2008). Court reversed when there was an unreasonable delay in rendering of final judgment when Court failed to address five accounts.

Trissler v. Trissler, 987 So. 2d 209 (Fla. 5th DCA 2008).  Good discussion of UIFSA and personal jurisdiction.

Waliagha v. Kaiser, 989 So. 2d 660 (Fla. 2nd DCA 2008). Court reversed for entering ex parte order preventing Former Husband from taking children to Syria when Former Judge provided either party may take children out of country during their time sharing. Letters attached to a motion are not evidence.

Cabrera v. Cabrera, 987 So. 2d 753 (Fla. 3rd DCA 2008). O.K. for judge to enter proposed final judgment when 1) it was not verbatim adoption, 2) other party given opportunity to object, 3) other side failed to submit their proposed judgment after being instructed to do so.

Sacks v. Sacks, 988 So. 2d 1206  (Fla. 5th DCA 2008). Court reversed for not granting continuance when social investigation not received until two days before trial. Social investigations are of such importance to decisions of child custody. Due process requires parties receive report within a reasonable period to prepare and rebut.

Kowalchik v. Kowalchik, 985 So. 2d 653 (Fla. 5th DCA 2008). Court reversed for delaying motion to change venue when all witnesses reside in other county and it would be difficult if not impossible for witnesses to travel to county where case was pending.

Canon v. Weissman, 983 So. 2d 784 (Fla. 4th DCA 2008). Court erred by granting a divorce on Court’s uniform motion calendar even though only dispute was whether marriage was broken. Contested cases are required to be set for trial per 12.440.

Chetram v. Singh, 984 So. 2d 614 (Fla. DCA 2008). Court reversed for signing proposed judgment. There were so many errors in judgment appellate court wondered if judge even proof read it. Spells out factors for this type of review.

Ries v. Ries, 984 So. 2d 612 (Fla. 4th DCA 2008). Judge Brunson affirmed from prohibiting defaulted party who did not participate in discovery from presenting evidence at final hearing.

Donoff v. Donoff, 989 So. 2d 6,(Fla. 4th DCA 2008).  Burton reversed for exceeding remand instructions. Appellate Court did not ask Circuit Court to consider retroactivity. Court erred when it did.

Iannuzzelli v. Lovett, 981 So. 2d 557 (Fla. 3rd DCA 2008). Describes immigration “affidavit of support” and application to Florida divorce law. Required at a 125% poverty level. Survives divorce. No fees pursuant to 8 USC Section 1183(a) as no judgment collected.

Hernandez v. Hernandez, 33  FLA. L. WEEKLY  D119 (Fla. 4th DCA 2008). Unsworn representations of counsel about factual matters do not have any weight in absence of stipulation.

Winney v. Winney, 979 So. 2d 396 (Fla. 1st DCA 2008). Court reversed for not making findings in awarding equitable distribution and alimony. Long discussion of factual findings and harmless error.

Donoff v. Donoff, 33  FLA. L. WEEKLY  D798 (Fla. 4th DCA 2008). Court reversed for exceeding remand directions.

Betterman v. Kukelhan, 977 So. 2d 702 (Fla. 4th DCA 2008). Court reversed for denying motion to dissolve injunction for protection against domestic violence without a hearing and opportunity to be heard.

Johnson v. Johnson, 979 So. 2d 350 (Fla. 5th DCA 2008). Court affirmed when Attorney files exceptions after pro se client does hearing. Attorney objects Wife did not plead non-marital issue; matter was clearly tried by consent.

Moforis v. Moforis, 977 So. 2d 786 (Fla. 4th DCA 2008). Trial Court may correct clerical error at any time on its own initiative per 1.540(a), but judicial errors that affect substance of a judgment must be corrected within 10 days per 1.530.

Anderson v. Russell, 33  FLA. L. WEEKLY  D260 (Fla. 1st DCA 2008). Court reversed for misinterpreting provision on property.

Rosenstein v. Rosenstein, 976 So. 2d 1148 (Fla. 4th DCA 2008). Court reversed for requiring Former Husband to pay Former Wife’s rent. Court can not change terms of a contract to achieve what it might think is a more appropriate result.

DOR v. Jackson, 975 So. 2d 549 (Fla. 4th DCA 2008). Court exceeded jurisdiction and reversed for lifting federally mandated restrictions when child support arrearage exceeded $2,500. Section 652(k)(1)&(2), title 42 US Code.

Roth v. Roth, 973 So. 2d 580 (Fla. 2nd DCA 2008). Court erred in classifying equitable distribution payments as payments in nature of support thus making non-dischargeable in bankruptcy.

Bland v. Bland, 971 So. 2d 210 (Fla. 5th DCA 2008). A final judgment that determines some issues but reserved jurisdiction to other issues (such as alimony & equitable distribution) is not a final judgment and not an appealable order

Ruschiwal v Ruschiwal, 971 So. 2d 190 (Fla. 2nd DCA 2008). Trial court reversed for not conforming final judgment with oral pronouncements.

Chacoa v. Chacoa, 979 So. 2d 909 (Fla. 1st DCA 2008). Provision in DV Injunction requiring Petitioner to attend Batterer’s intervention program stricken as it exceeded scope of injunction.

Rogers v. Rogers, 977 So. 2d 687 (Fla. 4th DCA 2008). Family Court does not have same duty as criminal court to ensure party is present at critical stages of proceedings. A prisoner has the right to be heard, court must take some initiative to secure his appearance.

Prenup:

Marjon v. Lane, 995 So. 2d 1086 (Fla. 2nd DCA 2008). Order dismissing validity challenge because agreement contained exculpatory clause stating there was no duress. Entitled to a hearing on merit.

Aguilar v. Montero, 992 So. 2d 872 (Fla. 3rd DCA 2008). Can not waive temporary relief in an agreement.

Lord v. Lord, 993 So. 2d 562 (Fl. 4th DCA 2008). Court reversed for failing to award temporary relief because prenuptial agreement waived temporary support. Florida has a long standing policy against a spouse’s predissolution waiver of rights.

Appeals:

Anaya v. Anaya, 987 So. 2d 806 (Fla. 5th DCA 2008). A party may not complain the Court failed to make actual findings if they don’t ask Trial Court for rehearing.

Rosecan v. Springer, 985 So. 2d 607 (Fla. 2nd DCA 2008). Court exceeded mandate.

Moore v. Moore, 980 So. 2d 528 (Fla. 1st DCA 2008). Appellant failed to file an appeal of modification of judgment. Instead filed a 1.540 motion, appellant saw review of denial of 1.540 motion. Appellant could not use that appeal challenge factual findings from modification trial.

Contempt:

Gustafson v. Gustafson, 33  FLA. L. WEEKLY  D2631 (Fla. 4th DCA 2008). Provisions of order to unclear to hold Husband in contempt.

Pineiro v. Pineiro, 988 So. 2d 686 (Fla. 4th DCA 2008). Judge Aramony reversed for holding Former Wife in contempt for selling assets that were frozen in violation of charging lien. Injunction not meant to protect fees, contempt not appropriate for eluding charging lien.

Wilbur v. Wilbur, 33  FLA. L. WEEKLY  D1334 (Fla. 2nd DCA 2008). Court did not err in requiring Former Husband to borrow equity from his homestead property to pay $61,806 purge payment.

Janeski v. Janeski, 974 So. 2d 1220 (Fla. 2nd DCA 2008). Trial court reversed for granting commitment when relying on previous finding of ability.

Imputed Income:

Bator v. Osbourne, 983 So. 2d 1198 (Fla. 2nd DCA 2008). Case remanded. Even though Husband was found to be voluntarily underemployed, Court failed to make findings to 1) Recent work history, 2) Occupational qualifications and 3) Prevailing earnings in community.

Griffin v. Griffin, 993 So. 2d 1066 (Fla.4th DCA 2008). Court reversed for imputing income where no evidence of voluntary under employment and no findings of other jobs available and what income could be.

McCants v. McCants, 984 So. 2d 678 (Fla. 4th DCA 2008). Court erred for imputing $433 per month with no evidence for support findings. Burden on party trying to impute income. Court gave no findings as to how it determined Husband’s income. Remanded back to trial court. Alimony amount also remanded.

Craig v. Craig, 982 So. 2d 724 (Fla. 1st DCA 2008). Court abused discretion by imputing income to 65 year old woman who was homemaker during 48 year marriage, with no skills or education in real estate development and no real evidence of amount of income that could from this endeavor.

Parsons v. Parsons, 975 So. 2d 1161 (Fla. 1st DCA 2008). Court erred in imputing minimum wage to Wife without meeting normal elements. Wife claimed to be disabled but no corroborating evidence.

Chipman v. Chipman, 975 So. 2d 603 (Fla. 4th DCA 2008). Court erred in imputing $77,000 where evidence demonstrated Wife could not return to position with that earning capacity.

Hirsch v. Hirsch, 974 So. 2d 1159 (Fla. 3rd DCA 2008). Court erred in imputing additional $7000 per month for rent free house. Husband no longer had right to. States 61-30 definitions in child support may be used in deciding temporary alimony.

Roth v. Roth, 973 So. 2d 580 (Fla. 2nd DCA 2008). Trial Court reversed for imputing $150,000/a year when record devoid of any evidence to permit it. Good discussion.

Leonard v. Leonard, 971 So. 2d 263 (Fla. 1st DCA 2008). Trial Court abused discretion by imputing $35,000/yearly to Former Husband. No finding of fact. Triall Court must 1) conclude termination of income was voluntary & 2) determine whether underemployment resulted from pursuit of spouses own interest or less than diligent/bona fide effort to find similar income.

Life Insurance:

Massam v. Massam, 993 So. 2d 1022 (Fla. 2nd DCA 2008). Error to require Former Husband to secure alimony obligations without; a) finding of special circumstances (i.e. dire financial straits of receiving party based on arrearage or receiving parties limited earning capacity) b) availability, cost and ability to pay. Further Former Judge must specify how proceeds are to be paid; whether security for unpaid support or whether all proceeds go to payee spouse to minimize economic harm.

Jurisdiction:

Marshall v. Marshall, 988 So. 2d 644 (Fla. 4th DCA 2008). Burton reversed because he lacked jurisdiction on all issues but petition. Even though Husband filed affidavit for homestead in Florida, his voters I.D., driver’s license and tax returns were in Illinois. Ownership of property does not provide jurisdiction for Court to determine support, equitable distribution and alimony as they do not arise from property’s ownership.

Mannino v. Mannino, 33  FLA. L. WEEKLY  D1137 (Fla. 2nd DCA 2008) Court erred in grating motion to dismiss Florida modification on Former Husband’s claim Florida was never his home state.

Norris v. Heckerman, 33  FLA. L. WEEKLY  D335 (Fla. 1st DCA 2008). Court has authority pursuant to 61.516(2) to modify Georgia Custody Decree.

Agreements:

Kuchera v. Kuchera, 983 So. 2d 776 (Fla. 4th DCA 2008). Judge Kroll reversed for finding agreement invalid because agreement too unfair to enforce. Fairness not proper consideration.

Snowden v. Snowden, 33  FLA. L. WEEKLY  D1433 (Fla. 5th DCA 2008). Court affirmed for failing to grant modification even when agreement provided if either party consumed alcohol while caring for children other parent automatically became primary residential parent when it was proven Wife violated provision and drank but was not impaired. Agreement not in children’s best interests.

Kuchera v. Kuchera, 983 So. 2d 776 (Fla. 4th DCA 2008). Prenup affirmed. Validity previously litigated and parties reconciled. 50% of net income after child support not manifestly unjust after long term marriage.

Tanner v. Tanner, 975 So. 2d 1190 (Fla. DCA 2008). “Buyers Remorse” is not sufficient basis for overturning a marital settlement agreement that was voluntarily entered into.

Advertisements

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s