Stephens Squibs’ – 2009

Alimony:

Wofford v. Wofford, 20 So. 3d 470 (Fla. 4th DCA 2009).  Judge Smith reversed for only awarding “bridge the gap” in eleven (11) year marriage.  Wife was thirty-nine (39) and was not capable of self support at time of hearing.  Remanded for Court to consider rehabilitative or permanent.

Eaton v. Eaton, 16 So. 3d 289  (Fla. 4th DCA 2009). Court reversed for awarding excessive alimony citing Ballesteros, where 4th opined awarding sixty (60) percent of net income in child support, alimony was excessive.

Guldbrandsen v. Guldbrandsen, 22 So. 3d 640  (Fla. 3rd DCA 2009). Courts award of alimony reversed and remanded to $1.00 where Wife elected income producing properties in equitable distribution and further award of alimony would be duplicative and inequitable.

Mobley v. Mobley, 18 So. 3d 724 (Fla. 2nd DCA 2009).  Trial Court reversed for denying alimony because it was a “10 year marriage”. Remanded to make factual findings pursuant to section 61.08(2), Florida Statutes.

Lightcap v. Lightcap, 14 So. 3d 259 (Fla. 2nd DCA 2009).  Trial Court affirmed for awarding nominal alimony where thirty (30) year marriage, Husband has been high wage earner in past and Wife only recently got decent job.

Alcantara v. Alcantata, 15 So. 3d 844 (Fla. 3rd DCA 2009).  Court reversed for awarding bridge the gap alimony instead of permanent alimony in a nineteen (19) year marriage where Wife was primarily a homemaker.

Wabeke v. Wabeke, 31 So. 3d 793 (Fla. 2nd DCA 2009).  Trial Court reversed in alimony modification for failing to make findings on factors listed in 61.08(2).  A trial Court’s failure to make specific factual findings with regard to alimony prevents a meaningful appellate review and result in case being reversed and remanded.

Vigo v. Vigo, 15 So. 3d 619 (Fla. 3rd DCA 2009).  Award of permanent alimony reversed in 7.5 year marriage, no kids and Wife was 54.

Bengisu v. Bengisu, 12 So. 3d 283 (Fla. 4th DCA 2009).  Judge Brunson reversed on temporary support award that exceeded Husband’s stated income without competent evidence that Husband’s actual monthly exceeded stated income.  Plus trial Court failed to make specific findings indicating source of Husband’s imputed income.

Forster v. Forster, 11 So. 3d 972 (Fla. 5th DCA 2009).  Husband fraudulently induced Wife to remarry him to eliminate alimony.  Trial Court affirmed for treating duration of marriage as both marriages continuous, but was reversed for not basing alimony on current incomes.  Weird case.

Stough v. Stough, 18 So. 3d 601 (Fla. 1st DCA 2009).  Court cannot impute to Husband on remand after finding Husband disabled and unemployable.

Williams v. Williams, 10 So. 3d 651 (Fla. 5th DCA 2009). Trial Court reversed for excessive temporary alimony award that consumed 97% of Husband’s net income.

Cox v. Cox, 10 So. 3d 180 (Fla. 2nd DCA 2009).  Court reversed after considering child’s expenses in alimony.

Custody:

Hinz v. Johnson, 14 So. 3d 275 (Fla. 5th DCA 2009).  Court reversed for denying grandparents petition for primary custody of grandson when Mother consents and Father was unknown. Grandparents were not obligated to seek relief under chapter 39 because Grandson was not dependent. Section 61.13(7) is only unconstitutional when grandparent custody matter is contested.

Fuller v. Fuller, 13 So. 3d 1108, (Fla. 5th DCA 2009).  Court reversed for awarding primary to Father when parents otherwise equal, except Court found wife to have “disposition to draw unreasonable and alarming and hysterical influences from innocuous facts”. This was inappropriate “linchpin” for ultimate determination. Case remanded to be re-tried before a different Judge.

Doherty v. Brown, 14 So. 3d 1266 (Fla. 1st DCA 2009).  Court affirmed after rejecting portions of custody evaluation as it was a valid exercise of discretion.  Court also discusses non-binding effect of “dicta”.

Lovell v. Lovell, 14 So. 3d 1111 (Fla. 5th DCA 2009).  Court reversed on provision that Husband’s new Wife is forbidden from being in presence of children until approved by children’s therapist.  Ruling not supported by any evidence, new Wife posed a threat to children and Court delegated decision making authority to a third party.

Bon v. Rivera, 10 So. 3d 193 (Fla. 4th DCA 2009).  Trial Court reversed for granting emergency motion for change of custody.  Did not pass “True Emergency Test” which is where a child is threatened with physical harm or is about to be improperly removed from the State.  Further, no substantial changes of circumstances plead.

Karam v. Karam, 6 So. 3d 87 (Fla. 3rd 2009).  UCCJEA case.  Florida Court reversed for dismissing action because pending action in France.  French Court did not exercise in substantial conformity with the UCCJEA.

Lande v. Lande, 2 So. 3d 378 (Fla. 4th DCA 2009). Judge Colbath reversed for awarding primary residence in initial proceeding when Florida is not the home state of the child six months prior to filing.  Good discussion of what Court can do in multi-state jurisdictional issues.

Relocation:

Coyle v. Coyle, 8 So. 3d 1271 (Fla. 2nd DCA 2009).  Court reversed for allowing relocation when there was no proposed substitute visitation for the Court to consider. Accordingly, Court could not evaluate whether substitute arrangements would foster meaningful relationship.

Exclusive Use of Marital Home:

Green v. Green, 16 So. 3d  298 (Fla. 1st DCA 2009).  Court reversed for arbitrary award of credit on mortgage payments made during former wife’s exclusive use and occupancy of marital home.  Normally, if obligation incident to child support, no credit, but it should be so stated in decree.  In this case it wasn’t, but child support was “low” and “modest” and Former Husband admitted mortgage payment was part of his child support.

Equitable Distribution:

Mathers v. Brown, 21 So. 3d 834 (Fla. 4th DCA 2009).  For purposes of classifying marital and non-marital assets of a brokerage account, the Court clarified the individual stocks are the assets and not the brokerage account as a whole.  The brokerage account is simply a convenient holding mechanism for the many stocks a person may own.

Steedman v. Chenoweth, 27 So. 3d 78  (Fla. 1st DCA 2009).  Court reversed for awarding Wife’s non-marital gold to Husband.  Husband liquidated gold during pendancy.  A spouse cannot deplete marital assets prior to dissolution hearing unless they are “minimally necessary to meet reasonable living expenses”.  Here, it was non-marital so spouse should have credited full value.

Rafanello v. Bode, 21 So. 3d 867 (Fla. 4th DCA 2009).  Discusses difference between Stevens v. Michell when a marital fund reduces debt on non-marital property.  Equity will not allow a hard and fast rule that non-deed spouse is entitled to one half appreciation.  This case was two year marriage and significant appreciation.  Must be case by case analysis.

Guldbrandsen v. Guldbrandsen, 22 So. 3d 640  (Fla. 3rd DCA 2009).  Trial Court affirmed for treating receivables as “pay on pay” where Wife receives her share at same time as Husband.

Mobley v. Mobley, 18 So. 3d 724 (Fla. 2nd DCA 2009).  Trial Court reversed for offsetting Wife’s depleted retirement against Husband’s pension without finding Wife committed marital misconduct.

Ross v. Ross, 20 So. 3d 396 (Fla. 4th DCA 2009).  Judge Smith reversed for treating proceeds of term life insurance as marital when relative dies after date of filing petition.  Term life insurance policies have no value until contingency of death of insured occurred.

Dye v. Dye, 17 So. 3d 1278 (Fla. 2nd DCA 2009).  Trial Court reversed as if should have valued unused sick/vacation as employment contract provided method of valuation.

Foley v. Foley, 19 So. 3d 1031 (Fla. 5th DCA 2009).  Court reversed for giving Wife “special equity” in jointly titled condo because it was her premarital property until she jointly titled property. No legally sufficient justification for unequal distribution.

Mathers v. Brown, 17 So. 3d 858 (Fla. 4th DCA 2009).  Judge Colin affirmed in categorizing appreciation in Husband’s stock portfolio as active.  Court recedes from Chapman and fact the S&P index should be used to measure appreciation.  In this case, Husband did not invest similarly to S&P index and there was no other evidence.

Guobaitis v. Sherrer, 18 So. 3d 28 (Fla. 3rd DCA 2009).  Court reversed for making unequal distribution due to Husband’s alcoholism, drug abuse, and dissipation of the marital assets during the marriage because there were no findings to support award.  A party’s conduct is not valid reason to award disproportionate amount of the marital assets to innocent spouse unless the conduct depleted marital assets.  Remanded for appropriate findings.  Court also reversed for not addressing outstanding tax liability.

Shinitzky v. Shinitzky, 16 So. 3d 168 (Fla. 4th DCA 2009).  Judge Rapp affirmed for declaring proceeds of litigation of pre-marital funds as non-marital asset.  Litigation did not enhance value of asset (husband recovered $5.3 million of $8 million investment).  To determine fair market value of lawsuit see Berman v. Stern, 731 So.2d 148 (Fla. 4th DCA 1999).

Fashingbauer v. Fashingbauer, 19 So. 3d 401 (Fla. 1st SCA 2009).  Court reversed for treating Husband’s premarital residence as marital asset.  Fact parties used marital funds to pay property taxes did not convert nature of property from non-marital to marital. No enhancement as appraiser testified payment of taxes did not enhance value and Wife offered no evidence.

Vigo v. Vigo, 15 So. 3d 619 (Fla. 3rd DCA 2009).  Court affirmed for categorizing residence bought with Husband’s non-marital monies and titled solely in Husband’s name as a marital asset because Wife established it was a gift by proving 1) donative intent, 2) delivery of possession of gift, 3) surrender of dominion and control over gift.

Rogers v. Stoner, 12 So. 3d 288 (Fla. 2nd DCA 2009).  Court reversed for categorizing student loan as non-marital debt when it was incurred during marriage and no findings of fact of explanation.

Austin v. Austin, 12 So. 3d 314 (Fla. 2nd DCA 2009).  Court reversed for dividing property with statement, “all liabilities divided equally”.  Court has duty to make written findings of classification and value of each asset and liability.  Error to include asset used depleted for temporary living expenses in property division.

Abnour v. Abnour, 19 So. 3d 357 (Fla. 2nd DCA 2009).  Sick leave accumulated under Federal Employee Retirement System is not a marital asset as there is no provision for cash payment for unused sick time.

Kaaa v. Kaaa, 9 So. 3d 756 (Fla. 2nd DCA 2009).  2nd DCA certifies conflict.  Does debt reduction on non marital asset with marital funds convert passive appreciation to active?

Stough v. Stough, 18 So. 3d 601 (Fla. 1st DCA 2009).  Trial Court reversed for granting disproportionate distribution. Factors stated by Court do not weigh in favor of unequal distribution.

Robinson v. Robinson, 9 So. 3d 756 (Fla. 1st DCA 2009).  Trial Court reversed by classifying stocks owned prior to marriage as marital because Husband failed to present evidence of value at time of marriage.  Absent evidence of enhancement or commingling pre marital stock remaining non-marital assets.

Jalileyan v. Jalileyan, 4 So. 3d 1289 (Fla. 4th DCA 2009). Judge Burton reversed for awarding Wife marital residence which resulted in unequal distribution without required findings of fact.

Gibbons v. Gibbons, 10 So. 3d 127 (Fla. 2nd DCA 2009).  Good discussion of treatment of employee sponsored disability and private disability and how to equitably distribute.  Court reversed for classifying wife’s post filing loans as non-marital when they went to support of children.

Lift v. Lift, 1 So. 3d 259 (Fla. 4th DCA 2009).  Court reversed for awarding each party fifty percent of Wife’s veterinary business.  Forcing ex spouses to remain in business together creates an intolerable situation.  Court also failed to identify value and distribute other items.

Hoye v. Hoye, 34  FLA.L.WEEKLY D211 (Fla. 5th DCA 2009). Trial Court reversed because lower Court’s findings contrary to evidence and because Court failed to valuate and distribute all marital assets.

Rabbath v. Farild, 34  FLA.L.WEEKLY   D201 (Fla. 1st DCA 2009). Finding of marital waste affirmed when proof of affair and Husband failed to account for missing funds.

Parks v. Parks, 18 So. 3d 1072 (Fla. 2nd DCA 2009). Trial Court reversed for giving credit for a party’s payment of property related expenses but did not change spouse with offset of one half reasonable rental value. Court also reversed when both parties took $25,000 each from equity of house during divorce. Husband bought a Harley, wife used money for necessary living expenses and Court charged both parties $25,000 in equitable distribution. “Where the asset is used by one of the parties out of the necessity for reasonable living expenses, that asset should not be assigned to the party who used them, absent a finding of misconduct.”

Child Support:

Cooper v. Cooper, 19 So. 3d 421 (Fla. 4th DCA 2009).  Judge Kanarek reversed for including 10% of corporate profit in Father’s income.  Undistributed income retained by corporation for corporation purposes does not constitute income.  Zold. Court also reversed for nor crediting daycare or health insurance expenses.

Armour v. McMiller, 15 So. 3d 923 (Fla. 5th DCA 2009).  Court reversed for finding “amounts in child support guidelines worksheet filed by mother as correct.”  In making award of child support Court is required to determine net income and include findings in final judgment.

Rose v. Rose, 8 So. 3d 1251 (Fla. 4th DCA 2009).  Court erred in extending child support to high school graduation when agreement clearly provided for support to end at age 18.  Policy requiring parents to support their children are limited to their minority or dependency. Section 743.07(z).

McGrath v. Caron, 8 So. 3d 1253 (Fla. 4th DCA 2009).  Judge Colbath reversed for modifying child support at contempt hearing without modification being plead, without a finding of substantial change in circumstances.  Court also erred in prohibiting wife from filing additional motions for contempt.

Hudson-McCain v. McCain, 8 So. 3d 1228 (Fla. 5th DCA 2009).  Court reversed for imputing $2000/monthly income to Wife when there was evidence Wife had ever earned this amount and no evidence of employment potential and probable earnings.

Valdes v. Valdes, 6 So. 3d 731 (Fla. 1st DCA 2009). Child support award will be reversed where Trial Court fails to make findings as to income.

Arcot v. Balaraman, 34  FLA.L.WEEKLY D743 (Fla. 5th DCA 2009).  Trial Court reversed for not using actual income in determining retroactive child support.

Segnini v. Segnini, 10 So. 3d 188 (Fla. 4th DCA 2009).  Trial Court reversed for basing child support on Father’s gross receipts without allowing business expense’s deduction.

Shaw v. Nelson, 4 So. 3d 740 (Fla. 1st DCA 2009).  Child support affirmed even though no calculations or findings.  Oral pronouncements enough to explain calculation.

Anderko v. Nicholson, 997 So. 2d 519 (Fla. 1st DCA 2009). Award of daycare finding it was a reasonable child care cost reversed.  Statute requires cost to be “incurred”.

Paternity:

Martowski v. DOR, 10 So. 3d 714 (Fla. 2nd DCA 2009).  Default reversed when alleged Father requested evidentiary hearing.  A judgment establishing paternity may not be entered solely on basis of unadmitted, unproven allegations of paternity based upon substantial and competent evidence.

AS v. SF, 34  FLA.L.WEEKLY D561 (Fla. 5th DCA 2009).  Paternity case involving reputed father issue.

Enforcement:

Lippman v. Lippman, 20 So. 3d 457 (Fla. 4th DCA 2009).  Judge Smith reversed for requiring arbitration when no valid agreement exists to arbitrate matters at issue.

Jaffe v. Jaffe, 17 So. 3d 1251 (Fla. 5th DCA 2009).  Court reversed for denying motion for contempt on contractual obligation to pay child’s post emancipation college expenses just because there is no limitation to Former Husband’s obligation does not make provision unenforceable.

Pierce v. Pierce, 18 So. 3d 1074 (Fla. 2nd DCA 2009). Court upheld for denying request for continuance based on argument to hear contempt at same time as modification. Court reversed for ordering incarceration without separate affirmative findings of present ability to pay purge.

Modification:

Swor v. Swor, 22 So. 3d 790  (Fla. 2nd DCA 2009).  Modification of primary residence reversed.  Court did not male appropriate findings and allowed parties to present evidence on all issues.

Baumann v. Baumann, 22 So. 3d 719(Fla. 2nd DCA 2009).  Court reversed after finding supportive relationship, then denying modification because payor did not meet burden.  Once supportive relationship found burden shifts to payee to demonstrate financial need is same.  Conflict with 4th (French) certified in French, 4th said once supportive relationship found to exist; Court must modify or terminate alimony.

Arrabal v. Hage, 19 So. 3d 1137 (Fla. 3rd DCA 20090.  Trial Court affirmed for interpreting agreement that the parties “reevaluate primary residential custody when child enters 6th grade” waived burden to prove substantial material permanent change in circumstance.

Moore v. Wilson, 16 So. 3d 222 (Fla. 5th DCA 2009).  Court reversed for modifying final judgment to rotating custody when party seeking modification sought change to primary residence.  Court also failed to make findings which would have facilitated appellate review including rotating custody was in child’s best interest.

Lane v. Lane, 16 So.3d 179 (Fla. 5th DCA 2009).  Trial Court reversed for granting change of custody with no change in of circumstances.  Based on findings that do not approach stringent standard.

Kamenski v. Kamenski, 15 So. 3d 842 (Fla. 2nd DCA 2009).  Modification denial reversed when Former Wife’s income increased from $17,500 annually to $41,000 annually.  No indication in final judgment change was anticipated.

Welch v. Welch, 34 FLA.L.WEEKLY D1503 (Fla. 1st DCA 2009).  Party failed to preserve right to appeal findings of facts (or lack thereof) when they failed to seek rehearing.  Failure to cite statutory or case law authority makes motion for appellate fees facially insufficient.

Mesibov v. Mesibov, 16 So. 3d 890 (Fla. 5th DCA 2009).  Modification of custody reversed when based on finding child’s development was disturbingly retarded and the child had unreasonable fears and unman like toilet behaviors (boy wouldn’t urinate standing up).  As a matter of law, this is insufficient to meet “substantial change test”.

Boone v. Boone, 3 So. 3d 403 (Fla. 2nd DCA 2009). Error to reduce alimony by $100 when evidence contradicted award. Remanded back to reduce alimony to $1.00

Gerencser v. Mills, 1 So. 3d 345 (Fla. 5th DCA 2009). Change of custody affirmed by giving Former Husband final decision making when parties in dispute. This is inconsistent with shared parental. Evidence not sufficient to award sole decision making.

Davis v. Smith, 998 So.2d 1212 (Fla. 4th DCA 2009). Judge Rapp reversed for granting modification of visitation schedule and transportation costs when no substantial change of circumstances present.

French v. French, 4 So.3d 5, (Fla. 4th DCA 2009). Judge Cook reversed for finding supportive relationship but not modifying/terminating alimony. Case remanded.  Distinguished from Linstroth.

Attorney Fees:

Bohner v. Bohner, 24 So. 3d 622 (Fla. 4th DCA 2009).  Travel time awarded in attorneys’ fees for driving from West Palm Beach to Delray Beach is appropriate when party failed to object to issue at hearing and additional time traveling to hearing was caused by Husband’s vexatious litigation.

Harris v. McKinney, 20 So. 3d 400 (Fla. 2nd DCA 2009).  Absence of required findings of fact in written order renders order fundamentally erroneous on Husband’s face even in the lack of a transcript.

Edwards v. Sullivan, 16 So. 3d 1064 (Fla. 2nd DCA 2009).  Court erred in not reserving jurisdiction on attorneys’ fees when requested in petition and Court noted at pre-trial conference that it would be heard later.

Trovato v. Trovato, 16 So. 3d 290  (Fla. 4th DCA 2009).  Trial Court reversed for imposing $3,000 in fees for discovery violations based on no findings of fee or hours were reasonable or related to discovery violation.  Fees are appropriate, but you have to present your evidence the right way.

Rogers v. Stoner, 12 So. 3d 288 (Fla. 2nd DCA 2009).  Court reversed for only awarding Wife portion of her fees with payment plan over one year.  No findings of fact explaining reason.

Gustafson v. Gustafson, 4 So. 3d 728 (Fla. 4th DCA 2009). Award of fees reversed after order of contempt reversed.

Nathan v. Bates, 998 So. 2d 1178 (Fla. 3rd DCA 2009). Error to award fees based on 57.105 when motion filed three days after service.

Rosenburg v. Gaballa, 1 So. 3d 1149 (Fla. 4th DCA 2009). Court affirmed for awarding fees against attorney for bad faith litigation. 57.105 did not render obsolete the “inequitable conduct doctrine of Moakley”.

Amerus Life Insurance Co. v. Lait, 2 So. 3d 203  (Fla. 2009) 30 day requirement in 1.525 does not apply in cases where entitlement already established and only remaining issue is amount.

Braswell v. Braswell, 4 So. 3d 4 (Fla. 2nd DCA 2009). Award of attorneys’ fees reversed because attorney failed to introduce competent evidence, invoices, records detailing services and testimony. Matter was not remanded back based on lack of evidence.

Procedure:

Fast v. Nelson, 22 So. 3d 109 (Fla. 2nd DCA 2009).  Court reversed for transferring case to another County based on “forum non conveniens” (section 47.122) without written or oral findings of substantial inconvience or undue expense.

Riley v. Riley, 14 So. 3d 1284 (Fla. 2nd DCA 2009).  Court reversed for not granting continuance. Three factors to determine if Court abused discretion; 1) whether movant suffers injustice for denial, 2) whether underlying cause of motion unforeseen by movant and whether motion filed on dilatory tactics 3) whether opponent is prejudiced.

Teelucksingh v. Teelucksingh, 21 So. 3d 37 (Fla. 2nd DCA 2009). Court reversed for not complying with Rule 12.440 (a) and proceeded to final hearing upon Wife’s notice of status conference.  Court must issue order setting trial.

Owens v. Owens, 14 So. 3d 1093, (Fla. 1st DCA 2009).  Trial Court reversed for granting Husband’s motion to dismiss when Wife received no notice nor an opportunity to be heard. Due process violated.

Miscellaneous:

Worrell v. Worrell, 23 So. 3d 199  (Fla. 4th DCA 2009).  Child support hearing officer was authorized to hear 12.540 motion based on child support being calculated on fraudulent financial affidavit.  Rule 12.491(b)(1) confers jurisdiction on hearing officers for proceedings concerning establishment, enforcement or modification of child support.

Scott v. Scott, 17 So. 3d 918 (Fla. 4th DCA 2009).  Judge Stern reversed for allowing wife’s prenup. Attorney testified on “all issues”.  No waiver of attorney/client privilege.

In Re: Amendments to Rules Regulating Fla. Bar, 34 FLW S627 (Fla.2009).  Websites are subject to all substantive advertising regulations but for filing requirement.

Kotlarz v. Kotlarz, 21 So. 3d 892 (Fla. 1st DCA 2009).  Requirement to secure life insurance reversed due to no findings.  Must show insurance is available, affordable, and special circumstances such as spouse potentially left in dyer financial straits, ill health, lack of employment skills, minors at home, existing support arrearages or where obligor agrees.

London v. London, 32 So. 3d 107  (Fla. 2nd DCA 2009).  Trial Court reversed for dismissing petition to modify foreign custody decree during simultaneous proceedings because the Trial Court failed to comply with communication requirements in 61.519.

Dyce v. Christie, 17 So. 3d 892 (Fla. 4th DCA 2009).  Judge Rapp affirmed for enforcing a Jamaican custody decree per 61.528 and 61.531 because Father had notice and opportunity to be heard in Jamaican Court.  Florida Courts do not have to reevaluate the merits of every foreign custody decree to determine whether child’s best interest is served by that decree.

Lake v. Lake, 14 So. 3d 284 (Fla. 3rd DCA 2009).  Trial Court reversed for entering order awarding fees after they entered an order recusing themselves.  Once the Trial Court recused himself, he had no further authority to enter orders.

Preure v. Benhadj-Djillali, 15 So. 3d 877 (Fla. 5th DCA 2009).  Court affirmed for finding no marriage existed when parties only participated in religious ceremony and did not get marriage license as required by law.  However, Court reversed for not incorporating stipulation Father would not travel with children out of the Country and failed to make express findings of income for calculating child support.

DOR v. Walton, 12 So.3d 921 (Fla. 1st DCA 2009). Trial Court reversed.  Trial Court does not have authority to remove Federal restrictions imposed on passport.

Simmons v. Simmons, 34  FLA.L.WEEKLY D3109 (Fla. 5th DCA 2009).  Court reversed for entering a final judgment based on Magistrate’s report when timely exceptions were filed and there was no hearing as to exceptions.

Yeakie v. Yeakie, 12 So. 3d 884 (Fla. 4th DCA 2009).  Judge Amy Smith reversed for not adopting parties’ stipulation that Husband use best efforts to remove Wife from mortgage.

Frier v. Frier, 13 So. 3d 145 (Fla. 1st DCA 2009).  Husband’s appeal challenging Trial Court’s jurisdiction dismissed as a non-appealable non-final order because order did not expressly or necessarily determine personal jurisdiction.

French v. French, 12 So. 3d 278 (Fla. 5th DCA 2009). Trial Court was reversed in confirming magistrate’s report when there are errors on face of report even where affidavit challenging report was untimely.

Scariti v. Sabillon, 16 So. 3d 144 (Fla. 4th DCA 2009).  Judge Colin affirmed retroactive support when not plead (Wife defaulted and did not counterpetition). Court advised issue was within scope and Husband failed to object, so matter was tried by consent.

Quincoces v. Quincoces, 10 So. 3d 657 (Fla. 3rd DCA 2009). Trial Court affirmed after making contradictory findings from Magistrate after Magistrate recused themselves.  Good discussion of roles of Judges and Magistrates.

Dukes v. Dukes, 19 So. 3d 338 (Fla. 2nd DCA 2009). When Trial Court adapts verbatim a parties proposed order, reversal is required when the findings in that order are inconsistent with an earlier pronouncement of the Court, or when the record establishes that the order does not reflect the Court’s “independent decision-making”.

Weiss v. Weiss, 5 So. 3d 758 (Fla. 5th DCA 2009).  Court reversed for entering an order enjoining Wife from making defamatory statements against her former attorney at charging lien hearing.  No pleading for injunctive relief pending.

Hopper v. Hopper, 2 So.3d 1019 (Fla. 2nd DCA 2009). Court reversed for setting aside judgment as void.  Errors that affect substance of judgment are needed to be raised by rehearing.

White v. White, 3 So.3d 400 (Fla. 2nd DCA 2009). Court reversed for denying modification based on “unclean hands” when it wasn’t plead as affirmative defense or otherwise pled.

Carter v. Carter, 3 So.3d 397 (Fla. 4th DCA 2009). Judge Smith reversed for ordering financial discovery not relevant of determination of validly of agreement.

Mahmood v. Mahmood, 15 So. 3d 1 (Fla. 4th DCA 2009). Good discussion of 39.0139, “Keeping Children Safe Act”.

Appeals:

Demont v.Demont, 24 So. 3d 699 (Fla. 1st DCA 2009).  Final judgment which reserves jurisdiction to consider the division of the parties’ marital personal property is not a final order for purposes of appeal.

Welch v. Welch, 22 So. 3d 153 (Fla. 1st DCA 2009). * Substitutes 34 FLW D1503d.  Claims that findings were not supported by competent substantial evidence may be raised for the first time during appeal so long as it is a non-jury trial.  See Rule 1.530(c).  Former Husband’s motion for appellate fees denied because he failed to state the grounds recovery was sought.

Mollinea v. Diaz, 16 So. 3d 294 (Fla. 1st DCA 2009).  Appeal of order vacating two portions or post judgment order premature when Trial Court has not yet finished judicial labor on issue.

Frier v. Frier, 13 So. 3d 145 (Fla. 1st DCA 2009).  Husband’s appeal challenging Trial Court’s jurisdiction dismissed as a non-appealable non-final order because order did not expressly or necessarily determine personal jurisdiction.

Brewer v. Brewer, 3 So. 3d 432 (Fla. 2nd DCA 2009).  Reversal required where final judgment is inconsistent with trial court’s oral pronouncement.

King v. Taylor, 3 So. 3d 405 (Fla. 2nd DCA 2008). Rare case where dismissal of appeal based on fraud or misconduct in civil proceedings.

Contempt:

Burbage v. Burbage, 34 So. 3d 684 (Fla. 5th DCA 2009).  Contempt order remanded back as it lacked findings payor had ability to comply with purge.

Resnick v. Resnick, 19 So. 3d 1176 (Fla. 4th DCA 2009).  Judge Crow affirmed for denying motion for contempt when agreement provided Husband to pay support until 2001 at which time support will be recalculated.  No order establishing support after 2001 to be enforced.

J.A.H. v. DCF, 20 So. 3d 425 (Fla. 1st DCA 2009).  Court reversed for sentencing father to thirty (30) days for direct criminal contempt for “statements, behavior and demeanor” at hearing.  Must strictly comply with FL R. Crim Pro Rule 3.830.

Berlow v. Berlow, 21 So. 3d 81 (Fla. 3rd DCA 2009).  Order on motion for contempt imposing $5,000 fine did not comply with due process and required reversal.

Chape v. Chape, 19 So. 3d 1019  (Fla. 1st DCA 2009). Court reversed for modifying agreement at contempt hearing.

Pipitone v. Pipitone, 23 So. 3d 131 (Fla. 2nd DCA 2009).  Court reversed on motion to enforce language that Wife “may” secure liens was not exclusive remedy.  Issue remanded back to Court for determination whether lump sum alimony was not meant for support or equitable distribution.  Alimony payments for support, even though they are lump sum payable in installments are enforceable by contempt.  Alternatively, a Court can award a money judgment, although contempt is usually remedy.  Payments for equitable distribution are not enforceable by contempt.

Miller v. Murrah, 14 So. 3d 1019 (Fla. 5th DCA 2009). Trial Court reversed for finding Husband in contempt for failing to pay support without necessary finding that he had ability to purge.

Anderson v. DOR, 11 So. 3d 424 (Fla. 4th DCA 2009).  Trial Court reversed for finding Former Husband in contempt for failing to pay support, then finding him indigent for purpose of appeal.

Imputed Income:

Rodriquez v. Medero, 17 So. 3d 867  (Fla. 4th DCA 2009).  Court reversed for imputing full time income to Wife who can’t work full time due to medical reasons.  Burden of proof is on person seeking to impute income.

Zarycki-Weig v. Weig, 25 So. 3d 573  (Fla. 4th DCA 2009).  Judge Brunson affirmed for finding Wife to be voluntarily underemployed and imputing her last wage to her because she claimed to be medically disabled but failed to present competent evidence.

Durand v. Durand, 16 So. 3d 982  (Fla. 4th DCA 2009).  Court reversed for imputing $75,000 to Former Husband without evidence of job availability.

Perez v. Perez, 34  FLA.L.WEEKLY D1319 (Fla. 2nd DCA 2009).  Court erred in imputing an additional $100,000 of income to Husband based on business credit card statements showing personal use.  Neither expert could tell if personal expenses were on W-2.  Too speculative.

Rabbath v. Farild, 34 FLA D201 (Fla. 1st DCA 2009). Award of support, alimony and fees remanded when income imputed at level Husband earned working in Middle East. No evidence presented as to what Husband could earn in U.S.

Oluwek v. Oluwek, 2 So. 3d 1038 (Fla. 2nd DCA 2009). Court erred by imputing gift income to Husband even though his parents gave the $1,500 per month regularly for five years when there was uncontroverted evidence payments will not continue in future.

Temporary Support:

McCann v. McCann, 21 So. 3d 170 (Fla. 2nd DCA 2009).  Award of temporary alimony reversed as excessive.

Agreements:

Pita v. Pita, 16 So. 3d 1013 (Fla. 3rd DCA 2009).  Court affirmed for enforcing agreement with ambiguous term after properly admitting parole evidence to determine intent.

Annulment:

Hall v. Maal, 34 FLA.L.WEEKLY D2152 (Fla. 1st DCA 2009).  Trial Court reversed for finding marriage invalid where couple never solemnized license.  They had religious ceremony, got license, just never solemnized.  Unlicensed marriages are not facially invalid.

Cobo v. Sierralta, 13 So. 3d 493 (Fla. 3rd DCA 2009).  Court erred in denying dissolution and granting annulment when Wife did not produce documentation previous marriage had been dissolved.  Husband had to overcome “one of the strongest presumptions in law” to defeat presumption of valid marriage.  Wife’s failure to produce documents does not overcome that burden.  In addition, Court erred in not awarding sufficient attorneys’ fees to put Wife on equal playing field.

Parenting:

Gamache v. Gamache, 14 So. 3d 1236 (Fla. 2nd DCA 2009).  Court affirmed for refusing to hold party in contempt over time sharing issues over an adult child.  Even though child was “special” and Court awarded long term support pursuant to section 723.07(2).  Child was not a “child” for purposes of UCCJEA and there were no guardianship proceedings.  No subject matter jurisdiction.

Arcot v. Balaraman, 13 So. 3d 502  (Fla. 5th DCA 2009).  Court reversed for not establishing a schedule to celebrate Hindu holidays on an alternating basis when requested to do so.

Support:

Chaney v. Fife, 18 So. 3d 44 (Fla. 1st DCA 2009).  Court reversed in child supporter calculation as there was no evidence to support number used to determine tax liability deduction.  Court also erred in requiring Father to pay seventy-five (75) percent uncovered medical.  Should be included in base child support or pro rata income.

George v. George, 34  FLA.L.WEEKLY   D1393 (Fla. 2nd DCA 2009). Court affirmed for setting temporary support without evidentiary hearing because Husband agreed to pay amount if continuance is granted.  Husband waived right to evidentiary hearing.

Yeakie v. Yeakie, 12 So. 3d 884 (Fla. 4th DCA 2009).  Judge Amy Smith reversed on support award that left Wife with 35% of net income.  While each responsibility placed on Wife, standing alone is not excessive, cumulative total constitutes abuse of discretion.

Partition:

Durand v. Durand, 16 So. 3d 982 (Fla. 4th DCA 2009).  Denial of partition affirmed.  Old case law stating partition is a “mater of right” is outdated since enactment of equitable distribution statute.  In facts of this case, Wife was older and had multiple health problems and no record of employment. Husband was able bodied and found housing with his girlfriend.

Temporary Relief:

Guiterrez v. Guiterrez, 19 So. 3d 1110 (Fla. 2nd DCA 2009).  Trial Court reversed for denying temporary alimony in 22 month marriage when Wife presented unrebutted evidence she suffered from severe depression, bipolar disease, borderline personality disorder, anxiety panic attacks and could not work.  Husband presented no evidence of Wife’s ability to work.  Once Wife presented competent, substantial evidence regarding her income, burden shifts to Husband to rebut evidence.  The factor of short term marriage alone could not justify denial of temporary relief.  In considering whether temporary relief alimony is warranted, must consider standard of living along with need and ability to pay.  Although awards of temporary alimony are within trial Court’s broad discretion, record must contain competent substantial evidence to support ruling.

Reilly v. Reilly, 16 So. 3d 1041 (Fla. 2nd DCA 2009).  Temporary relief order reversed.  Although temporary awards are discretionary, they must be supported by evidence.  In this case, Wife caught double dipping.

Resmondo v. Resmondo, 18 So. 3d 41 (Fla. 2nd DCA 2009). Temporary relief order affirmed.  If further discovery reveals order is inequitable, in equity can be resolved at final hearing.

Rotating Custody:

Marchant v. Trader, 16 So. 3d 328 (Fla. 4th DCA 2009).  Court affirmed for awarding rotating custody as it has “broad discretion in custody matters” and Court considered appropriate factors.

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2 thoughts on “Stephens Squibs’ – 2009

  1. An outstanding share! I have just forwarded this onto a friend who has been conducting a little homework on this. And he actually bought me dinner due to the fact that I found it for him… lol. So allow me to reword this…. Thanks for the meal!! But yeah, thanks for spending some time to talk about this matter here on your web site.

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