Stephens’ Squibs – 2010

Agreements:

Rocha v. Mendonca, 35 Fla. L. Weekly D1080 (Fla. 3rd DCA 2010).  Trial court reversed for improper interpretation of agreement.  Provision that said Husband transfer retirement to Wife via QDRO did not mean Wife will receive immediate use of funds.  Trial Court erred by “rewriting” settlement agreement.

Gordon v. Gordon, 25 So. 3d 615 (Fla. 4th DCA 2010).  Judge Brunson affirmed for finding prenuptial agreement valid and free of coercion when Wife had high level of education, and business acumen, was married twice and only had ten (10) days to review agreement.  In addition, Husband failed to disclose a pension with at least $143,000.  This was not to invalidate because Wife had proximate knowledge.  There is a dissenting opinion (Ciklin).

Foster v. Estate of Gomes, 27 So. 3d 145 (Fla. 5th DCA 2010).  Fact that Husband did not disclose $10,000 asset before prenuptial agreement was signed did not invalidate agreement.

Alimony:

Stanton v. Stanton, 35 Fla.L.Weekly D2750 (Fla. 2nd DCA 2010).  Temporary alimony in the amount of $75,000 per month reversed when it exceeded Wife’s needs on record.  Temporary alimony must be based on Wife’s needs and not an attempt “to fund the enjoyment of every little luxury enjoyed before the Court”.  Temporary attorneys’ fees of $336,964 also reversed because there was no finding of reasonableness.

Hornyak v. Hornyak, 35 Fla.L.Weekly D2683 (Fla. 4th DCA 2010).  On rehearing, award of alimony reversed for trial court to determine how much wife could earn full time, when it has been established Wife earns $25,000 part time and there is no reason she can’t work full time.

Suit v. Suit, 35 FLW D2609 (Fla. 2nd DCA 2010).  Amount of permanent alimony reversed because trial court failed to determine Wife’s true costs of future living arrangements and failed to consider impact of income producing assets awarded to the Wife.  Distinguished from Holley, where Wife primarily received real estate holdings.  Here Wife got the liquid investments.  Trial court affirmed for refusing to impute income to Wife in her mid-50’s in a 23 year marriage where Wife was not employed but operated two small businesses.

Gergen v. Gergen, 35 FLW D2575 (Fla. 1st DCA 2010).  Court erred in reversing jurisdiction to award permanent alimony.  If permanent alimony appropriate but for husband’s lack of ability, trial court should award nominal alimony.  Likewise, reservation to award child support at late date also reversed.

Gremel v. Gremel, 35 Fla.L.Weekly D2291 (Fla. 2nd DCA 2010).  Trial court reversed for not awarding retroactive alimony or prejudgment interest on alimony arrearages.

Aziz v. Aziz, 35 Fla.L.Weekly D2286 (Fla. 2nd DCA 2010).  Order of temporary support and alimony reversed when it appears obligation consumes all of Husband’s income.  Here parties were not ready for hearing which caused Judge to handle it almost like a mediation.  While this may have seemed appropriate at the time, there were not enough findings in record to support award.  Normally, temporary awards are those where Judge has greatest discretion.  Still need findings of fact.

Halickman v. Halickman, 35 Fla. L. Weekly D2048 (Fla. 5th DCA 2010).  Amount of alimony affirmed when Wife had stroke and living with her parents.  Argument focused on Wife’s needs.    Typically, Courts should not consider voluntary assistance of others.  Trial Court properly imputed income based on gifts that are continuing and ongoing, not sporadic, and gifts will continue.  Judge who wrote opinion (Cohen) said he would not have reached same decision, but within Trial Courts discretion.

Hornyak v. Hornyak, 35 Fla. L. Weekly D1960 (Fla. 4th DCA 2010).  Judge Amy Smith reversed for awarding Wife 3 years of bridge the gap alimony while she re-enters employment.  Here Court found Wife could make $40k a year, but only imputed 25k.  Because she could begin employment immediately, there was no bridge to gap.  Wife’s imputation of income at 35k / year also reversed.

Pearce v. Pearce, 35 Fl. Law. Weekly D1747 (Fla. 3rd DCA 2010).  Court affirmed for denying permanent alimony in 9 year marriage where wife did not rebut presumption of no permanent alimony in short term marriage.  No rehabilitative alimony was awarded because no rehab plan submitted.  Bridge the gap awarded.

Mondello v. Torres, 35 Fla.L.Weekly D1624 (Fla. 4th DCA 2010).  Court reversed for failing to award Husband permanent alimony in 16.5 year marriage, Husband is 20 years older than Wife, Wife has grossly higher income, Wife awarded 1.5 million in non-marital assets and Court fails to provide findings of fact per 61.13.  Remanded for further consideration.

Singer v. Singer, 35 Fla.L.Weekly D1551 (Fla. 4th DCA 2010).  Trial court reversed for failing to reserve jurisdiction to consider overpayment in alimony when parties agreed to cohabitation.  If cohabitation found, and cohabitation clause  allows for termination of alimony, it can be retroactively applied.

Engesser v. Engesser, 35 Fla.L.Weekly D1528 (Fla. 5th DCA 2010).  5th recedes from prior opinions rejecting ‘bridge-the-gap’ alimony.  7 year marriage, no kids.  Both parties worked full time throughout marriage.  Former Wife was in automobile accident early in marriage but continued to work until business went out of business.  Trial court affirmed for awarding 1 year bridge the gap at $500 and nominal permanent alimony thereafter.  No transcript.  Previously 5th DCA rejected bridge-the-gap.

Cohen v. Cohen, 35 Fla.L.Weekly D1417 (Fla. 4th DCA 2010).  Court affirmed for denying lump sum and bridge the gap alimony for 6 years.  Parties lived lavishly during short term marriage.  Wife could not identify source of income or asset from which alimony could be paid, Wife failed to articulate short term needs and failed to look for a job or otherwise prepare herself for la vida loca (single life).

Biskie v. Biskie, 35 Fla. L. Weekly D1380 (Fla. 1st DCA 2010).  Court reversed for denying permanent alimony in 15 year marriage, no children, modest lifestyle, lots of debt, house upside down, multiple relocations due to Husband’s work, Wife was 59, earned about a grand a month doing custom embroidery.  Husband was 48 and director of human resources at $67k/year after 20% pay cut.  Fact intensive case which should be moot with new durational alimony.

Lin v. Lin, 35 Fla. L. Weekly D1313 (Fla. 2nd DCA 2010).  Award of alimony reversed when it included child expenses.  Inappropriate double dipping.

Mcquaig v. McQuaig, 35 Fla. L. Weekly D1158 (Fla. 1st DCA 2010).  Court affirmed when it failed to deduct business expenses.   No evidence Former Husband had significant business expenses in selling surgical equipment.  Plus Husband had huge personal expenses that he could not explain.  Child Support (61.30) definition of income does not necessarily mean the same as Alimony (61.13) definition of income.

Buoniconti v. Buoniconti, 35 Fla. L. Weekly D1217 (Fla. 2nd DCA 2010).  Trial Court affirmed for awarding Wife $261k in lump sum alimony as prepayment due to Husband’s history: some unfair unilateral financial decisions, waste, and a current reluctance to work.  Court failed to include income Wife would receive from liquid assets and should have applied a present market value to amount.

Purrinos v. Purrinos, 35 Fla. L. Weekly D1075 (Fla. 3rd DCA 2010).  Court reversed for not awarding alimony in 16 year marriage, 3 school aged kids, because Husband was unemployed.  Remanded for entry of nominal permanent alimony.

Eckert v. Eckert, 29 So. 3d 381 (Fla. 5th DCA 2010).  Amount of permanent alimony was reversed and remanded after twenty-eight (28) month delay in Final Judgment.  Findings of fact (Husband’s income of between 7,000-12,000) are inadequate.  No findings of Wife’s needs.

Boggess v. Boggess, 35 Fla.L.Weekly D846 (Fla. 3rd DCA 2010).  Alimony modification calculation reversed when it failed to include investment income.  Case remanded.

Garcia v. Garcia, 25 So. 3d 687 (Fla. 4th DCA 2010).  Court reversed when alimony and Wife’s actual wages exceed her needs.

Valladares v. Junco-Valladares, 30 So. 3d 519 (Fla. 3rd DCA 2010).  Trial Court reversed for awarding permanent alimony to Wife without considering Wife’s equitable distribution award of $1.25 million and fact Husband was seventy and probably couldn’t work much longer.

Appeals:

Moore v. Moore, 35 FLW D2881 (Fla. 1st DCA 2010).  Appeal challenging final judgment dismissed as premature because there was no ordered timesharing schedule with third child, which is integrally related.  Therefore, final judgment was not a final order subject to appeal.

Wineglass v. Wineglass, 35 FLW D2668 (Fla. 5th DCA 2010).  Trial Court affirmed for entering final judgment pursuant to mediated agreement where Husband agreed to pay $150 per month in alimony for ten years.  Because final judgment was lawfully entered in accordance with mediated agreement, Husband is not entitled to relief.  “It is not under the province of judges to say whether a voluntary agreement is fair to one of the contracting parties so long as it does not violate public policy.”  Court also refused to consider pro-se Husband’s asserted non-record facts.

Schwartz v. Schwartz, 35 FLW D2646 (Fla. 3rd DCA 2010).  Appeal challenging offsets in future child support dismissed without prejudice as premature as child support had not been set yet.

Mize v. Mize, 35 Fla. L. Weekly D1914 (Fla. 1st DCA 2010).  Husband waived right to challenge insufficient findings of fact by failing to petition for rehearing.

McGuire v. McGuire, 35 Fla. L. Weekly D1936 (Fla. 5th DCA 2010).  Appeal dismissed because additional judicial labor contemplated.  Order appealed was a 1.540 order acknowledging clerical error and ordering parties to attend mediation to resolve issue.

Pool v. Pool, 35 Fla. L. Weekly D1950 (Fla. 1st DCA 2010).  Appeal dismissed because Former Husband was challenging non-final order and there was additional judicial labor contemplated.  Court reserved issue to determine child support arrearage amount.

Smith v. Smith,  35 Fla.L.Weekly D1485 (Fla. 2nd DCA 2010).  Trial court’s mathematical errors on face of judgment regarding equalizing payment and income calculation can be corrected even without transcript.  Court’s decision on parenting, which may have emphasized moral character, must be affirmed without transcript because it requires examination of factual context of determination.

Posner v. Posner,  35 Fla.L.Weekly D1429 (Fla. 4th DCA 2010).  Trial court reversed for exceeding remand.

Hickey v. Burlinson, 35 Fla. L. Weekly D963 (Fla. 5th DCA 2010).  Order denying motion to temporarily halt visitation is a non-final order subject to appeal.  Fla.App.R.Pro.  Rule 9.130(a)(3)(C)(iii).

Zuberer v. Zuberer, 28 So. 3d 993 (Fla. 2nd DCA 2010).  Order awarding entitlement but not amount of attorneys’ fees is not a final order subject to appeal.  Thus, appeal dismissed as premature.

MaCartey v. MaCartey, 29 So. 3d 434 (Fla. 2nd DCA 2010).  Award of temporary alimony affirmed when no transcript.  Without a record of proceedings Court cannot resolve factual disputes.  Question certified: is order awarding fees without finding of reasonable hours/rate fundamentally erroneous?

Jonsson v. Dickinson, 35 Fla. L. Weekly D378 (Fla. 1st DCA 2010).  Former Husband waived his right to appeal findings of fact when he filed notice of appeal before motion for rehearing was decided.

Attorneys’ Fees:

Campbell v. Campbell, 35 FLW D2484 (Fla. 4th DCA 2010).  Award of attorney’s fees resulting from default hearing reversed for lack of findings that fee and hours were reasonable.

Perez v. Reveiz, 35 FLW D2843 (Fla. 4th DCA 2010).  Trial Court reversed for awarding fees when at last hearing Court said they would reserve on the issue of attorneys fees until another hearing.

Phillips v. Ford, 35 FLW D2590 (Fla. 4th DCA 2010).  Judge Oftedal reversed for awarding temporary fees to Former Wife in a modification because Former Husband “is in a financially superior position”.  There were no findings of the Former Wife’s “needs” which is a necessary element finding of fact.

Koch v. Koch, 35 Fla.L.Weekly D2091 (Fla. 2nd DCA 2010).  Court award of 57.105 fees affirmed.  At end of case, Court reserved fees, on it’s own initiative, to award attorneys fees.  After, the Husband filed a motion for attorneys’ fees for frivolous litigation.  Motion failed to cite specific legal authority in which fees were sought.  Trial Court has inherent power to award attorney’s fees for bad faith conduct as a sanction against an offending party, even in the absence of statutory authority.  Distinguished from Davidson, because fee originated from Court’s initiative.  Strong dissent as there was not 21 day safe harbor notice.

Conlan v. Conlan, 35 Fla. L. Weekly D2064 (Fla. 4th DCA 2010).  Trial court reversed for failing to award fees when there was disparate incomes and Wife would have to pay her attorneys which would result in inequitable diminution of her equitable distribution.  Distinguished from Blaine which had a more significant property distribution.  Analysis is fact intensive.

Berg-Perlow v. Perlow, 35 Fl. Law. Weekly D1696 (Fla. 4th DCA 2010).  17th appeal between parties.  Award of temporary appellate fees affirmed.  Like temporary relief awards, this is area where judge is granted broadest discretion.

Roshkind v. Machiela, 35 Fla.L.Weekly D1571 (Fla. 4th DCA 2010). Trial court reluctantly affirmed for denying charging lien to law firm who failed to present independent expert testimony on reasonableness.  Question certified, are experts needed on charging lien hearings?

Herbst v. Herbst, 35 Fla.L.Weekly D1453 (Fla. 4th DCA 2010).  Trial Court reversed after  awarding Former Wife 75% of income when there is no demonstrated need of the Wife and parties have same disposable income.

Speed v. Ferris, 35 Fla. L. Weekly D1213 (Fla. 2nd DCA 2010).  Appeal awarding entitlement to attorneys fees dismissed as premature.  Not appealable final order until amount determined.

Tullos v. Tullos, 35 Fla. L. Weekly D1141 (Fla. 2nd DCA 2010).  Court reversed for awarding Wife 50% of fees without explanation when parties stipulated fees were reasonable.

Baker v. Baker, 35 Fla. L. Weekly D1045 (Fla. 2nd DCA 2010).  Trial Court reversed for awarding temporary fees without findings of fact as to reasonableness of rate and hours expended.  Appellate court rejected Husband’s contention that matter should not be remanded for further proceedings.

Vitale v. Mitchell, 35 Fla.L.Weekly D822 (Fla. 2nd DCA 2010).  Error to award fees to prevailing party in a modification action when agreement provided prevailing fees to a party upon default.

Brown v. Holmes, 35 Fla.L.Weekly (Fla. 1st DCA 2010).  Order modifying support reversed when no pleading was filed seeking that relief, former wife was not given notice or opportunity to defend.  The mere mention of child support in a proceeding does not authorize the trial court to modify support nor does the mere mention constitute implied consent to try the issue.

Sharon v. Sharon, 35 Fla. L. Weekly D1034 (Fla. 2nd DCA 2010).  Disturbing example of dissolution litigation that has proceeded with little consideration for the need of timely and cost effective resolution of family disputes.  Award of attorneys fees reversed as order contained no findings as to reasonable time or cost.

Greenwald v. Rivkind-Greenwald, 31 So. 3d 250 (Fla. 3rd DCA 2010).  Trial Court reversed for awarding attorneys’ fees to Wife when she sought permanent alimony in fourteen (14) month marriage, lied about her claim, and Husband offered generous pre-suit settlement.

Gottfried v. Gottfried, 35 Fla. L. Weekly D642 (Fla. 3rd DCA 2010).  Husband sanctioned for absconding mid trial.  Parties later settle and each agree to pay own attorneys’ fees.  At final hearing Court inquires about sanction, both parties advise matter is settled.  Court holds evidentiary hearing and awards Wife’s law firm $90,000.  Both parties object and appeal.  Trial Court affirmed.

Schneider v. Schneider, 32 So. 3d 151  (Fla. 4th DCA 2010). Court reversed for denying fees for litigating motion for fees as a matter of law.  Trial Court has wide discretion citing Rosen.

Wallia v. Hodgson Russ LP, 28 So. 3d 987 (Fla. 4th DCA 2010).  Judge Smith reversed for imposing charging lien prior to final judgment.  Charging lien not ripe until “tangible fruits of attorney’s service” are produced (i.e. final judgment entered).

Child Support:

El-Hajji v. El-Hajji, 35 FLW D2511 (Fla. 2nd DCA 2010).  Trial court erred in allocating federal dependency exemption directly, rather than requiring custodial parent execute waiver if child support is paid up to date.  It’s OK parties presented no evidence on impact, statute authorizes to consider impact.

Ceccarelli v. Ceccarelli, 35 Fla.L.Weekly D2283 (Fla. 5th DCA 2010).  Order of support reversed because of lack of findings of fact to support award.

Hill v. Calderin, 35 Fla.L.Weekly D2278 (Fla. 3rd DCA 2010).  Award of support reversed when Court order existed that provided no support due to equal time sharing, even when there was no transcript.  Where previous order exists, must file a modification.

Heysek v. Heysek, 35 Fla.L.Weekly D2193 (Fla. 2nd DCA 2010).  Award of child support reversed because Court failed to deduct alimony from gross income.

Whittingham v. Whittingham, 35 Fla.L.Weekly D2145 (Fla. 2nd DCA 2010).  Order of support reversed when it failed to include findings of fact on parties’ income and made no provisions for health insurance or uncovered medical expenses.

Geddies v. Geddies, 35 Fla. L. Weekly D2006 (Fla. 1st DCA 2010).  Trial Court affirmed for awarding tax dependency credits and exemptions to non-custodial parent, even though it was not relief requested.  Parent must be current in support.

Wilder v. Wilder, 35 Fla. L. Weekly D1973 (Fla. 4th DCA 2010).  Judge Stern reversed for temporary support award that exceeds or nearly exhausts Husband’s income.

Hayde v. Hayde, 35 Fl. Law. Weekly D1855 (Fla. 5th DCA 2010).  Child support reversed when Court failed to award substantial parenting adjustment when Father had more than 40 percent overnights.

Needhamn v. Needham, 35 Fl. Law. Weekly D1801 (Fla. 2nd DCA 2010).  Child support order reversed because Court did not consider expenses of Wife’s daughter from another relationship expenses.  Wife has another child who lived with her and for whom she did not get child support.  61.30(11) does not provide method for resolution.  Case law provides the trial court may consider this factor and can abuse discretion if it fails to adjust child support to reflect this fact under some circumstances.  Remanded for consideration.

Martinez v. Abinader, 35 Fla. L. Weekly D1316 (Fla. 2nd DCA 2010).  Trial court reversed for not taking into consideration all sources of income (overtime, income from part time jobs) in determining retroactive child support, alimony and attorneys’ fees.

TJD v. AG, 35 Fla. L. Weekly D1321 (Fla. 2nd DCA 2010).  Court reversed for $200 downward departure in support .  No findings of fact, or income.  Current arrears cannot be used as basis to deviate.  Finding on amount of arrearages.  No explanation why Court did not accept Mother’s uncontroverted testimony.

Wilcox v. Nunez, 35 Fla. L. Weekly D1145 (Fla. 2nd DCA 2010).  Trial court reversed, even with no transcript, when Court ordered uncovered health care be split 50/50 and judgment lacked any findings of fact to support award.

Zepeda v. Zepeda, 32 So. 3d 679  (Fla. 2nd DCA 2010).  When child receives Seminole Indian stipend, Court reversed by requiring Father to pay amount of stipend should it be reduced by Tribe in future.  Court cannot completely bypass child support guidelines.

McKenna v. McKenna, 32 So. 3d 890  (Fla. 4th DCA 2010).  Trial Court reversed for not awarding Husband child support offset in calculating child support when Court split timesharing and Wife has two (2) children majority of the time, Husband has one (1).

DOR V. Soto, 28 So. 3d 171 (Fla. 1st DCA 2010).  Court reversed for allowing Father credits on retroactive child support for birthday and Christmas gifts.

Valladares v. Junco-Valladares, 30 So. 3d 519 (Fla. 3rd DCA 2010).  Child support reversed when Court imputed children’s social security benefits to Wife’s income instead of using it to offset Husband’s child support obligation.

American University of the Caribbean v. Tien, 26 So. 3d 56 (Fla. 3rd DCA 2010). Interesting case where injunction freezing corporation’s bank account was dissolved.  Good discussion of irreparable harm.

Gelman v Gelman, 24 So. 3d 1281 (Fla. 4th DCA 2010).  Judge Colbath reversed for requiring Father to pay private school when issue was not pled and Court failed to make findings that parent had ability to pay and “expenses in accordance with the family’s customary standard of living and in the child’s best interest.”

Mankowski v. DOR, 24 So. 3d 714 (Fla. 4th DCA 2010). Time limit for requesting child support administration hearing is not a jurisdictional requirement and may be extended as equity requires.

Domestic Violence:

Rodman v. Rodman, 35 FLW D2675 (Fla. 1st DCA 2010).  Injunction against domestic violence quashed because petition did not allege, nor was it established that parties resided in same household pursuant to section 741.30, Florida Statutes.

Fuccio v. Durso, 35 FLW D2665 (Fla. 5th DCA 2010).  Injunction against domestic violence reversed because parties never resided together (a necessary element).  Matter could not be tried as injunction against repeat violence as no notice was given and matter was not tried by consent.

Sanchez v. Sanchez, 35 FLW D2612 (Fla. 2nd DCA 2010).  DV injunction reversed when based on unsubstantiated hearsay testimony involving harm to daughter.

DCF v. D.B.D., 35 Fla. L. Weekly D1903 (Fla. 4th DCA 2010).  Trial Court affirmed after dismissing 39.504 DCF injunction the day after it was entered by another judge.  Per 39.504(2), Court must hold a hearing the next day of judicial business to dissolve or continue injunction.  Burden is on DCF to show why injunction is needed.  Lawyers blasted for not advising Court of related proceedings.

Olin v. Roberts, 35 Fl. Law. Weekly D1705 (Fla. 1st DCA 2010).  DV injunction affirmed.  Opinion only written to clarify “stalking by law enforcement” and “stalking by use of threat of court” is not included in definition of domestic violence.

Coe v. Coe, 35 Fla.L.Weekly D1594 (Fla. 2nd DCA 2010).  Entry of domestic violence injunction reversed because it was based on judge’s observations during 3 day custody modification trial and not part of DV record.  DV is a separate proceeding.  Court did not take judicial notice of family law matter.

McCormick v. Shannon, 35 Fla. L. Weekly D993 (Fla. 2nd DCA 2010).  Order denying motion to vacate reversed when Court denied motion summarily and did not allow an evidentiary hearing.  This violates due process.

Hickey v. Burlinson, 35 Fla. L. Weekly D976 (Fla. 2nd DCA 2010).  Domestic violence injunction reversed because no PRESENT competent, substantial evidence to support finding former husband committed domestic violence or former wife had reasonable fear of being a victim of.  Evidence prior to parties’ divorce was too remote to consider.

Coe v. Coe, 35 Fla.L.Weekly D822 (Fla. 2nd DCA 2010).  DV injunction reversed because it was based on testimony in a 3 day modification trial that was a distinct and separate legal proceeding than the DV proceedings.  Previous testimony was not judicially noticed or otherwise made part of the record.

Equitable Distribution:

Jones v. Jones, 35 FLW D2879 (Fla. 1st DCA 2010).  Trial Court affirmed for discounting value of promissory note between Husband and his Mother by 50%.  Here, there was no expert (which would typically preclude a split the difference resolution) and trial court has broad discretion to fashion equitable distribution.

El-Hajji v. El-Hajji, 35 FLW D2511 (Fla. 2nd DCA 2010).  Trial court erred in not allocating loan on 401K as marital liability and equitably distributing.

Tyler v. Tyler, 35 FLW D2411 (Fla. 5th DCA 2010).  Trial Court reversed for using property appraiser’s assessment as opposed to fair market value to determine active appreciation of property.

Van Den Berg v. Van Den Berg, 35 Fla.L.Weekly D2281 (Fla. 5th DCA 2010).  Reversed judgment declaring pension accumulated over 383 months when marriage was 283 as a complete marital asset “..in light of commingling of the withdrawals deems all of it marital”.

Chehab v. Hamilton-Chehab, 35 Fla.L.Weekly D2241 (Fla. 5th DCA 2010).  Valuation of unvested stock options reversed due to improper proper methodology for allocation.  Should apply “time rule” from Parry (similar to coverture method):

The numerator should represent the number of months in which marital labor was devoted to earning the award. Here, the numerator would be the number of months between the grant date and the petition filing date. This number will vary because the awards were granted on different dates . . . . The denominator would be the total number of months in which the award was to be earned. Because all of the restricted stock awards at issue have a four-year vesting period, as to those the denominator will always be 48. Determining the denominator for the option grants is less straightforward, because one-quarter of the shares in each option vests every twelve months. Therefore, each grant would entail denominators of 12, 24, 36, and 48, each of which would apply to one-quarter of the shares in the option.

Heysek v. Heysek, 35 Fla.L.Weekly D2193 (Fla. 2nd DCA 2010).  Trial Court reversed for including non-marital inherited IRA into equitable distribution scheme.  Wife was given $250,000 in temporary support from proceeds from sale of a property.  This was not credited in equitable distribution.  Then Husband was required to pay retroactive support.  Issue remanded as this was double dipping.

Tillman v. Tillman, 35 Fla.L.Weekly D2155 (Fla. 4th DCA 2010).  Court reversed for valuing Husband’s stock account at time of filing without addressing Husband’s concern the stock account had significant depreciated during pendency.  It was error to include in equitable distribution scheme assets or sums that have been diminished unless depletion was result of misconduct.

Bishop v. Bishop, 35 Fla.L.Weekly D2147 (Fla. 2nd DCA 2010).   Trial court reversed for crediting Wife with depleted 401(K) funds in equitable distribution scheme when it was undisputed monies were used in support of herself and children.


Kaaa v. Kaaa, 35 Fla.L.Weekly S511 (Fla. 2010).  Resolves conflict with Stevens on what circumstances the passive appreciation of a marital home that is deemed non-marital real property subject to equitable distribution.  Creates fact intensive method to determine whether a non-owner spouse is entitled to a share of passive appreciation and how to calculate proper allocation:

1.      Determine the overall current fair market value of the home.

2.      Determine whether there has been passive appreciation passive appreciation in the home’s value.

3.      Court must determine whether passive appreciation is marital.  Must include findings of fact by the trial court that marital funds were used to pay mortgage and that non-owner spouse made contributions to the property.  Trial court must determine to what extent the contributions of the non-owner spouse affected the passive appreciation of the property.

4.      Determine the value of the passive appreciation that accrued during marriage and is subject to equitable distribution.

5.      Determine how the value is allocated.

“If a separate asset is unencumbered and no marital funds are used to finance its acquisition, improvement, or maintenance, no portion of its value should ordinarily be included in the marital estate, absent improvements effected by marital labor.

If an asset is financed entirely by borrowed money which marital funds repay, the entire asset should be included in the marital estate. In general, in the absence of improvements, the portion of the appreciated value of a separate asset which should be treated as a marital asset will be the same as the fraction calculated by dividing the indebtedness with which the asset was encumbered at the time of the marriage by the value of the asset at the time of the marriage.

If, for example, one party brings to the marriage an asset in which he or she has an equity of fifty percent, the  other half of which is financed by marital funds, half the appreciated value at the time of the petition for dissolution was filed should be included as a marital asset. The value of this marital asset should be reduced, however, by the unpaid indebtedness marital funds were used to service.”

In sum, when the marital home is a non-marital property, but is encumbered by a mortgage which is paid (serviced) with marital funds, the value of the passive, market-driven appreciation that accrues during marriage is marital subject to equitable distribution.Conlan v. Conlan, 35 Fla. L. Weekly D2064 (Fla. 4th DCA 2010).  Trial court reversed on finding property is marital.  Company that bought property was formed during marriage.  However, property bought with loan unrelated to marriage, the sale of a pre marital property and money from a non-marital company.

Maxwell v. Maxwell, 35 Fla. L. Weekly D2033 (Fla. 4th DCA 2010).  Equalizing payment conflicted with findings of fact.   Matter reversed to correct math

Odak v. Vitrano, 35 Fla. L. Weekly D1957 (Fla. 4th DCA 2010).  Trial court affirmed in selecting date of trial for valuation as opposed to date of petition.  Trial court has discretion to disregard Husband’s contradicted testimony.  However, trial court reversed for categorizing severance pay not available at time of filing as a marital asset.  Right to receive severance did not exist at time of filing.  Severance pay received on termination (after filing) is not marital asset.

Furbee v. Barrow, 35 Fl. Law. Weekly D1782 (Fla. 2nd DCA 2010).  Trial court reversed for failing to make findings of fact determining marital and non-marital assets and liabilities.  Remanded (alimony and fees included) for whole new trial.

Hood v. Hood, 35 Fl. Law. Weekly D1705 (Fla. 5th DCA 2010).  Unequal distribution due to Husband’s egregious behavior in dissipation of significant marital assets.  However, amount remanded to fix a few computational errors.

Valentine v. Van Sickle, 35 Fl. Law. Weekly D1663 (Fla. 2nd DCA 2010).  Trial court affirmed for categorizing personal injury proceeds as non marital citing Mazzorana.  Fact that Husband used some of the proceeds for marital expenses not germane.  The fact that Wife deposited check into a new joint account while Husband traveling did not cause it to be marital.  Fact that two large deposits of marital funds into account remanded for purposes of determining commingling.

Valentine v. Van Sickle, 35 Fl. Law. Weekly D1663 (Fla. 2nd DCA 2010).  Trial court affirmed for accepting Wife’s valuation of the marital home.  Each party is competent to testify to value of property they own.  However, if you don’t bring an expert, you take a calculated risk.  No error found in Court’s decision (i.e. broad discretion).

Mondello v. Torres, 35 Fla.L.Weekly D1624 (Fla. 4th DCA 2010).  Court reversed for categorizing 50% of judgment with joint and several liability against the Husband and other Defendants as marital liabilities.

McNamara v. McNamara, 35 Fla.L.Weekly D1425 (Fla. 4th DCA 2010). Trial court reversed for giving Husband $71k credit for insurances and taxes paid on marital home when prenup required him to provide marital home and pay living expenses.

Weiner v. Weiner, 35 Fla.L.Weekly D1425 (Fla. 4th DCA 2010).  Trial court reversed for accepting Magistrate’s report which denied Former Husband credit for rental value of marital home for period after child emancipated when Court awarded Former Wife exclusive use and possession while child is a minor.  There can be no offset for rental credit during lawful exclusive possession.  Here, lawful possession stopped when child emancipated.

Cohen v. Cohen, 35 Fla.L.Weekly D1417 (Fla. 4th DCA 2010).  Court affirmed for finding Husband did not intend gift by depositing non-marital funds into jointly titled account.  Husband explained accounts were to handle his non-marital business affairs and Wife’s name was on account for emergency purposes.  Shows Court has broad discretion.

Davis v. Davis, 35 Fla. L. Weekly D1375 (Fla. 1st DCA 2010).  Court reversed for finding special equity in marital residence owned prior to marriage but was titled by entireties.  No findings of fact that would support unequal distribution.

Lilly v. Lilly, 35 Fla. L. Weekly D1202 (Fla. 5th DCA 2010).  Trial Court reversed for granting motion for rehearing and amending final judgment to change valuation of accounts from date of filing to date of final judgment based on Husband’s assertions in motion alone.  While Court has discretion to set valuation date, it requires substantial competent evidence which is lacking here.

Rocha v. Mendonca, 35 Fla. L. Weekly D1080 (Fla. 3rd DCA 2010).  Trial court reversed for rewriting QDRO so Wife would have immediate access to funds and originally QDRO required triggering event.

Rotta v. Rotta, 35 Fla.L.Weekly D822 (Fla. 2nd DCA 2010).  Court reversed for returning $400k to Husband which he paid voluntarily towards self acknowledged debt to Wife because matter was never plead.

Leider v. Leider, 35 Fla.L.Weekly D852 (Fla. 5th DCA 2010).  Court affirmed for finding no active appreciation on repairs made to non marital property.  Reversed for manner of calculating other appreciation.  Remanded to consider if mortgage payments made with marital monies should be considered marital appreciation.

Campbell v. Campbell, 30 So. 3d 679 (Fla. 3rd DCA 2010).  Trial Court affirmed for finding of marital waste especially where there is no transcript.

Boyle v. Boyle, 30 So. 3d 665 (Fla. 5th DCA 2010).  Trial Court affirmed for using date of separation instead of date of filing, six years later, when parties “essentially had operated separate households” and “led their own life” when  award resulted in $227,000 to Husband and $12,000 to Wife.  Nominal award of alimony reversed in light of new property distribution.

Sullivan v. Sullivan, 32 So. 3d 191  (Fla. 4th DCA 2010).  Trial Court affirmed without opinion.  Interesting dissent by Warner suggesting prejudgment interest on equalizing payment should not apply when valuation date is time of final judgment verses time of filing.  Distinguishing Catalfumo.

Annas v. Annas, 29 So. 3d 1209 (Fla. 1st DCA 2010).  Equitable distribution reversed when it assigned Wife monies she withdrew from savings when there were no findings of fact suggesting Wife used monies for something other than reasonable living expenses.

Nunez v. Nunez, 29 So. 3d 1191 (Fla. 5th DCA 2010).  Trial Court’s valuation of 51% interest in closed corporation reversed as it was not supported by competent substantial evidence. Evidence included minority partner owned technology, company failed to make a profit, forensic accountant testified company had no value.  There was one proposal to buy company for $3,000,000 from nowdefunct company.  Court’s valuation of $1,530,000.00 reversed.

Mistretta v. Mistretta, 31 So. 3d 206 (Fla. 1st DCA 2010).  Trial Court reversed for allowing rehearing on valuation of business due to post judgment “recessionary economy.”  Newly discovered evidence does not include change in circumstances since trial.

Garcia v. Garcia, 25 So. 3d 687 (Fla. 4th DCA 2010).  The sale price set by restrictive provisions on transfer on closely held stock was not conclusive as to value.  Impaired marketability may be considered, but in this case, neither party’s accountant applied a discount so Trial Court affirmed for using net book value.

Enforcement:

Alburos v. Alburos, 35 Fla.L.Weekly D894 (Fla. 3rd DCA 2010).  Trial court reversed for issuing contempt/incarceration order giving former husband $20k purge based on fact of his involvement with family business and business account with $25K.  Even though former husband’s testimony not credible, you still must specify a source for purge.

Stollmack v. Ferrell, 35 Fla.L.Weekly D894 (Fla. 3rd DCA 2010).  Trial court reversed for ordering former wife to sign a release for benefits accruing after former husband’s death, when wife only waived benefits during husband’s life in settlement agreement.  Sanctions levied against former wife under 57.105 also reversed.

Income:

Shafer v. Shafer, 35 Fla. L. Weekly D2023 (Fla. 4th DCA 2010).  Judge Amy Smith reversed for imputing wages to a Wife as if she were able to become an attorney in Florida.  Wife did go to law school and was licensed in New York and New Jersey.  However, 20 years had lapsed and Wife failed Florida Bar exam.  There must be some realistic basis in the evidence to support the concept that the former spouse can earn sums imputed.

Valentine v. Van Sickle, 35 Fl. Law. Weekly D1663 (Fla. 2nd DCA 2010).  $4,000 per year alimony reversed because of no findings of fact.  Prior to divorce, Husband, mortgage underwriter, benefited from the refinancing boom which caused a surge in his income due to temporary phenomenon. It is inappropriate to base alimony on this type of income.

Boyd v. Alonso-Boyd, 35 Fla.L.Weekly D1471 (Fla. 3rd DCA 2010).  Court affirmed for denying exceptions on magistrate’s child support order which had no findings of fact as to Husband’s inputed income.  While magistrate did not include findings, number was based on Husband’s testimony that he had that amount available to him every month.   In addition, the Husband failed to comply with discovery orders hampering magistrate’s ability to make a specific calculation.

Posner v. Posner,  35 Fla.L.Weekly D1429 (Fla. 4th DCA 2010).  Trial court affirmed for imputing $1,400 per month income which represented rent provided for by parents for an extended period and will continue so long as Husband does not have “a place of his own”.

Child v. Child, 35 Fla. L. Weekly D1002 (Fla. 5th DCA 2010).  Imputation appropriate when husband has negative cash flow, not satisfactorily explained.  “Florida case law has long recognized that self employed spouses, in contrast to salaried employees, have the ability to control and regulate their income.  Their testimony, tax returns and business records may not reflect their true earning, earning capability, and net worth.”  Amount of imputation remanded as not supported by evidence.

Drew v. Drew, 27 So. 3d 802 (Fla. 2nd DCA 2010).  Trial Court reversed for abusing discretion for not including bonus Husband had received for past nine (9) years.  Court did not include it based on finding it was not fixed or guaranteed.

McCall v. Martin, 35 Fla.L.Weekly D878 (Fla. 4th DCA 2010).  Judge Rapp denied for refusing to set child support for father who was being incarcerated for domestic violence against the mother finding father “had no monthly income”.  The Court is required to inpute income so arrearages can accumulate.  When release occurs the Court should establish a payment according to ability.

Sallaberry v. Sallaberry, 27 So. 3d 234 (Fla. 4th DCA 2010).  Court reversed for imputing twenty (20) hours of work per week (at $95.00 an hour) when evidence was too sporadic.  Only competent evidence was Husband’s ability to fund household expenses in the amount of $5,000 per month.

Miscellaneous:

Quintero v. Kenyon, 35 FLW D2589 (Fla. 3rd DCA 2010).  Order denying continuance reversed when Wife became unemployed, was unable to pay for attorney, attorney withdrew on eve of trial and no evidence of prejudice on record.  In determining whether continuance is appropriate Court must consider 1) whether denial creates injustice, 2) is it caused by unforeseen practices rather than dilatory practices and 3) whether the other party would be prejudiced.

Betemariam v. Said, 35 FLW D2543 (Fla. 4th DCA 2010).  Judge Brunson affirmed in determining parties were not legally married and refusing to address alimony and equitable distribution.  Parties had religious ceremony in Virginia.  Looking at Virginia law, if no license,  marriage is void ab initio.  Court reversed for not requiring father to pay private school when expenses in accordance with standard of living and father had ability.

Chamberlin v. Miller, 35 FLW D2529 (Fla. 1st DCA 2010).  Name change of minor child reversed.  Father’s testimony of his desire for son to carry on family name, his belief child should have father’s surname, father’s fear child would be teased were conclusionary assertions and are insufficient to demonstrate the change is in the best interest of child.

Clark v. Clark, 35 Fla. L. Weekly D2072 (Fla. 4th DCA 2010).  Trial court reversed for allowing vocational exam without allowing parties’ court reporter to transcribe testing.  Vocational evaluation is comparable to a medical evaluation.  Testing is allowed to be recorded.

Hutcheson v. Taylor, Name change in paternity case from last name of mother’s name (which was on birth certificate) to last name of both parties with hyphen reversed where order did not articulate how name change was in child’s best interest or required for welfare of child.

Hahn v. Hahn, 35 Fla. L. Weekly D1966 (Fla. 4th DCA 2010).  Court erred by retroactively applying 61.13 to modification action.  Here, statute not operative of law until date it takes effect.  New statute does not create presumption for 50/50 timesharing.

Standish v. Standish, 35 Fl. Law. Weekly D1703 (Fla. 4th DCA 2010).  All issues affirmed.  However case remanded to fix scrivener’s error referring to account number of an annuity.

Sootin v. Sootin, 35 Fl. Law. Weekly D1738 (Fla. 3rd DCA 2010).  Court reversed for transferring an action to modify alimony to Tennessee because under UIFSA Florida has continuing exclusive jurisdiction over a spousal support order.  Under UIFSA, out of state courts may enforce Florida spousal support orders but may not modify them despite the obvious logic of two former spouses who both reside in Tennessee to resolve their dispute there.

Bieda v. Bieda, 35 Fl. Law. Weekly D1808 (Fla. 3rd DCA 2010).  Ex-parte injunction freezing bank account of Former Husband who owed $280k in arrearages reversed.  Order did not include requisite findings of fact: 1) defining injury, 2) why injury is irreparable, 3) reasons why notice wasn’t given.

Henry v. Henry, 35 Fla.L.Weekly D1611 (Fla. 2nd DCA 2010).   Trial court reversed for denying 1.540 relief from judgment motion without an evidentiary hearing when affidavit establishes “colorable entitlement to relief”.

DOR v. Collingwood and Gray, 35 Fla.L.Weekly D1513 (Fla. 1st DCA 2010).  Trial court reversed for disqualifying DOR from representing Father when it previously represented Mother due to conflict of interest.  Not so.  Department counsel represents DOR, so there is no conflict.

Saunders v. Saunders,  35 Fla.L.Weekly D1433 (Fla. 5th DCA 2010).  Final judgment reversed.  Court minutes indicate parties reached settlement where no stipulation of agreement in court file.  All dissolution orders must be based upon facts which are contained in the record or by way of stipulation or trial evidence.

In re: Amendments to Forms, 35 Fla.L.Weekly S385 (Fla. 2010).  Approves new name change family law form.

Cohen v. Cohen, 35 Fla.L.Weekly D1417 (Fla. 4th DCA 2010).  Court affirmed for denying last minute continuance request when party could not show they were prejudiced by alleged discovery violation.

Brown v. Brown, 35 Fla. L. Weekly D1234 (Fla. 4th DCA 2010).  Court affirmed for denying 1.540 motion.  After mandate, trial Court reduced alimony to $1 but did not state a retroactive date.  6 months later, Former Husband filed motion for clarification.  Issued waived when not raised by motion for rehearing.

Causey v. Causey, 35 Fla. L. Weekly D1271 (Fla. 1st DCA 2010).  Court reversed for changing schedule of reimbursing non-covered health and child care costs when relief never requested.

Hunter v. Hunter, 35 Fla. L. Weekly D1157 (Fla. 2nd DCA 2010).  Ex-parte injunction requiring Husband to return property to marital home reversed for many reasons.  Can only enter ex parte injunction if moving party demonstrates 1) how and why giving notice will accelerate or precipitate injury, 2) time required to notice hearing would permit threatened irreparable injury to occur.   Motion also needs to be verified or supported by sworn affidavit.  Motion must contain attorney certification of efforts to give notice or why notice not required.  Order defective as it contained no explanation as to why injunction warranted.

Rashid v. Rashid, 35 Fla. L. Weekly D1138 (Fla. 5th DCA 2010).  Judgment requiring life insurance to secure child support and alimony reversed because no findings of availability and cost of insurance or appropriate circumstances to justify insurance requirement.

Armstrong v. Armstrong, 35 Fla. L. Weekly D1146 (Fla. 2nd DCA 2010).  Unique interpleader case involving ex-wifes of ex-NFLer Adger Armstrong relating to NFL pension.

Hall v. Maal, 35 Fla.L.Weekly D914 (Fla. 1st DCA 2010).  Trial court affirmed for declaring marriage “void” when parties fail to meet “good faith” & “substantial conpliance” test.  Here parties did not meet either prong of test.  Strong dissent.

Levine v. Levine, 29 So. 3d 464 (Fla. 4th DCA 2010).  Interesting concurring opinion where justice may foresee parties manipulating liquid v. non-liquid assets in equitable distribution for strategic purposes relating to alimony.

Cummings v. Cummings, 35 Fla. L. Weekly D553 (Fla. 4th DCA 2010).  Seventh (7th) written appeal involving same parties.  “Law of the case” discussion.

Castellano v. Winthrop, 27 So. 3d 134 (Fla. 5th DCA 2010).  Trial Court affirmed for disqualifying law firm who received illegally obtained USB drive containing confidential information and spent 100 hours reviewing it.

Calderon v. Calderon, 26 So. 3d 688 (Fla. 5th DCA 2010).  You get additional five (5) days to file exceptions if report is mailed to you.

Minakan v. Husted, 27 So. 3d 695 (Fla. 4th DCA 2010).  Judge Makemson reversed for disqualifying an attorney who revealed an alleged privileged email.  Good discussion of disqualification and other remedies.

In Re: Amendments to Fam. L. R. Pro, 27 So. 3d 650  (Fla. 2010).  Creates new rule on parenting coordinator and forms for order of referral to parental coordinator and response by parental coordinator.

Modification:

Fredrickson v. Fredrickson, 35 FLW D2635 (Fla. 4th DCA 2010).  Modification reversed as there was substantial evidence Former Husband’s decrease in income was not permanent.

Sanchez v. Hernandez, 35 Fla. L. Weekly D2019 (Fla. 4th DCA 2010).  Order modifying primary residential parent reversed.  There must be a substantial change of circumstances not reasonably contemplated by parties at time of final judgment.  Father needed to demonstrate more than merely an acrimonious relationship and a lack of effective communication in order to effectuate a modification.

Clark v. Clark, 35 Fla. L. Weekly D1137 (Fla. 5th DCA 2010).  Trial Court reversed for granting temporary motion to modify custody based on best interest of child.  Requires substantial change of circumstance.

Neville v. Neville, 35 Fla. L. Weekly D1105 (Fla. 5th DCA 2010).  Order terminating support at age 18 reversed in settlement agreement provided it terminated upon graduation from high school.

Salter v. DOR,  32 So. 3d 777 (Fla. 2nd DCA 2010).  Final administrative support order reversed when child support arrearages not calculated on father’s actual income which father had provided to department.

Overton v. Overton, 35 Fla. L. Weekly D963 (Fla. 1st DCA 2010).  Trial Court reversed for modifying alimony after stating “it considered all factors in 61.08(2)” but failed to make specific findings of fact.

Wilson v. Wilson, 35 Fla.L.Weekly D875 (Fla. 2nd DCA 2010).  Trial court affirmed by reducing 57 year old’s alimony obligation from $11k to $8k per month.  Former Husband’s decision to sell his veterinary practice, after 2 vets left was “prudent” and satisfies the “reasonableness” test.  In addition, Former Wife inappropriately inflated her needs (retirement contributions, gifts, charities, future college expenses for granddaughter, large increases for clothing, capital fund for house).

D.M.G. v. G.E.M, 35 Fla.L.Weekly D822 (Fla. 2nd DCA 2010).  Mother’s residential and instability could not support a modification to the designation of primary residential parent when those facts were present during initial determination.

Rickenbach v. Kosinski, 32 So. 3d 732 (Fla. 5th DCA 2010).  Trial Court erred in thinking it was prohibited from converting rehabilitative alimony to permanent in a modification proceeding.  To convert, must show why original plan did not work despite reasonable and diligent efforts.

GSP v. KB, 30 So. 3d 667 (Fla. 2nd DCA 2010).  Court reversed for using fixed amounts for health insurance and daycare when various financial affidavits filed during proceedings showed different amounts and lapses in daycare.

Cordell v. Cordell, 30 So. 3d 647 (Fla. 3rd DCA 2010).  Trial Court reversed for modifying alimony retroactive to date of final judgment as opposed to date of filing petition for modification.  Final Judgment contained language that “$75.00 per month child support would be subject to retroactive modification if the Court found the amount to be incorrect”.  Assuming Trial Court had authority to “retain jurisdiction” like this (no cases say they do) Wife would have to seek a modification within a reasonable time.  Waiting eleven (11) years waived right.

Castleberry v. Castleberry, 29 So. 3d 1207 (Fla. 1st DCA 2010).  Trial Court reversed for failing to modify alimony to nominal amount when recipient now had a higher income and no other jurisdiction for alimony.

Pombrio v. Pombrio, 29 So. 3d 1208 (Fla. 1st DCA 2010).  Court erred in prospectively reducing alimony once Wife starts receiving retirement benefits.  Prospective modification is an abuse of discretion.

Vollmer v. Vollmer, 35 Fla. L. Weekly D529 (Fla. 2nd DCA 2010).  Court erred in considering non recurring income (one time receipt of equity compensation, unearned stock awards) in modifying child support.  Non recurring income can only be included when recurring income insufficient to meet child’s need.  Court also reversed for averaging methods of determining party’s complete income.  Court averaging competing values, standing alone, is not supported by competent, substantial evidence.

Ginell v. Pacetti, 31 So. 3d 217 (Fla. 4th DCA 2010). Court was affirmed for modifying time sharing at contempt hearing based upon request of party who did not violate parenting plan per section 61.13(4)(c)6, Florida Statutes.

Schmachtenberg v. Schmachtenberg, 35 Fla. L. Weekly D462 (Fla. 3rd DCA 2010).  Former Husband agreed to support adult disabled child “as he has done in past”.  Former Husband’s modification of child support failed because a) there was no change in circumstances and b) not in disabled son’s best interest to modify.  Court modified alimony downward but erred by imputing Former Wife’s previous imputed income amount as income to her.  Previous imputation does not meet evidentiary threshold for imputation.

Halbert v. Morico, 27 So. 3d 771 (Fla. 2nd DCA 2010).  Court reversed for granting modification when only change was Former Husband moved forty-five miles away and had new job.

Paulk v. Paulk, 25 So. 3d 672 (Fla. 2nd DCA 2010).  Trial Court reversed for modifying rotating custody and granting Father primary when Father’s petition for modification was not served, matter was not tried by consent and no emergency existed.

Parenting:

Sidman v. Marino, 35 FLW D2431 (Fla. 1st DCA 2010).  Court reversed for modifying time sharing absent substantial change of circumstances.  Here parties agreed to additional timesharing and Court found more timesharing would be in child’s best interest.  Allowing an agreement between the parties to serve as a basis for modification would discourage parents from making informal joint decisions for the benefit of their children.

Bishop v. Bishop, 35 Fla.L.Weekly D2147 (Fla. 2nd DCA 2010).  Award of rotating reversed because record was devoid of any evidence that would support that and parties agreed to abide by therapist’s recommendation.  Here therapist was not recommending expanded visitation.

Grigsby v. Grigsby, 35 Fla.L.Weekly D1486 (Fla. 4th DCA 2010).  Trial court affirmed for awarding Father sole parental responsibility and suspending all of Mother’s timesharing.  However, court reversed for not including specific conditions to reestablish time sharing and delegating decision to resume time sharing to father.

Martinez v. Abinader, 35 Fla. L. Weekly D1316 (Fla. 2nd DCA 2010).  Court erred in naming Husband primary residential parent because Wife could not afford to live in marital home with child.

Rashid v. Rashid, 35 Fla. L. Weekly D1138 (Fla. 5th DCA 2010).  Court reversed for granting sole parental without any findings shared parental would be detrimental to child.

Hickey v. Burlinson, 35 Fla. L. Weekly D963 (Fla. 5th DCA 2010).  Case remanded which required Court to have interview with minor child transcribed, as one of the parties requested, after Court granted motion for in camera interview with minor children.

Kelly v. Colston; 35 Fla.L.Weekly D824 (Fla. 1st DCA 2010).  Timesharing provision that restricted Father from leaving child with third persons or friends reversed because judgment lacked sufficient findings of fact to support this “severe” restriction.

Corey v. Corey, 29 So. 3d 315 (Fla. 3rd DCA 2010). Court reversed for applying a presumption for rotating custody and requiring showing of exceptional circumstances.  Only burden is best interest of children.

Paternity:

Nevitt v. Bonomo & Bonomo, 35 FLW D2871 (Fla. 1st DCA 2010).  Order dismissing paternity suit reversed.  Appellees’ marriage dissolved on February 10, 2010.  At that time, Mrs. Bonomo was pregnant with Mr. Nevitt’s child.  On February 11, 2010 Nevitt filed for paternity alleging at conception, appellees did not have an intact marriage and Nevitt had developed a substantial concern for the child.  In an interesting move, the Bonomos had their final judgment set aside and argued Nevitt was without standing.   In order to contest the paternity of a child conceived while bio-mother is married to another man, must demonstrate putative biological father manifested a substantial concern for child.  Since that was pled, order of dismissal reversed.

Scott-Lubin v. Lubin, 35 Fla.L.Weekly S2688 (Fla. 4th DCA 2010).  Trial court reversed for granting relief from judgment when party was not originally personally served.  However, Husband participated in case in a hearing before a magistrate without raising contemporaneous objection to Court’s exercise of jurisdiction.

In re: Amendment, 35 Fla.L.Weekly S734 (Fla. 2010).  New Supreme Court forms for a) parenting plan (non-supervised); b) parenting plan (supervised / safety focused) and; c) parenting plan (military).

Aulet v. Castro, 35 Fl. Law. Weekly D1678 (Fla. 2nd DCA 2010).  Dismissal of disestablishment of paternity affirmed because scientific testing was not performed within 90 days of filing petition.  Statute is plain and unambiguous so there is no need to resort to rules of statutory construction.  Dissent suggests 90 day limit should be considered a statue of limitation subject to equitable tolling, waiver or other defenses.

Janssen v. Alicea, 30 So. 3d 680 (Fla. 3rd DCA 2010).  Trial Court reversed for granting summary judgment based on Mother’s assertion that Father’s claim was barred by F.S. 742.14 because he was a sperm donor.  However, Father asserted they were a “commissioning couple” and thus an issue of fact existed.

L.J. v. A.S., 25 So. 3d 1284 (Fla. 2nd DCA 2010).  Court reversed for dismissing paternity petition filed by biological Father when he demonstrated willingness and ability to support child and legal Father refuses to provide.

Procedure:

Scott-Lubin v. Lubin, 35 FLW D2688 (Fla. 4th DCA 2010).  Trial Court reversed for granting relief from judgment when party was not originally personally served.  However, husband participated in case in hearing before magistrate without raising contemporaneous objection to court’s exercise of jurisdiction.

In re: Amendments, 35 FLW S734 (Fla. 2010).  New approved forms for; a) parenting plan (non-supervised), b) parenting plan (supervised/safety focused) and c) parenting plan (military).

Gutierrez v. Gutierrez, 35 FLW D2509 (Fla. 5th DCA 2010).  Trial court reversed after adopting Magistrate’s report without having a hearing on exceptions timely filed.

Martinez v. Kurt, 35 Fla.L.Weekly D2270 (Fla. 3rd DCA 2010).  Agreement providing for arbitration of financial issues found unenforceable because after judgment Court decided Toiberman, which interpreted 44.104 as excluding arbitration from all lawsuits that involve custody, visitation, or child support.  Court would not address whether this rendered entire agreement as issue was not raised with trial court.  Decision was without prejudice for Husband to raise that before trial court.

Lefler v. Lefler, 35 Fla.L.Weekly D2252 (Fla. 4th DCA 2010).  Court affirmed for granting exclusive use and possession of marital home to Wife even though the relief was not requested in the pleadings.  Exclusive use and possession is incident to child custody.

Mikulec v. Mikulec, 35 Fla.L.Weekly D2252 (Fla. 2nd DCA 2010).  Court reversed for denying Husband’s motion to dismiss based on subject matter jurisdiction.  Wife filed and was a non-resident.  Burden is on Wife to prove residency.  Subject matter jurisdiction cannot be waived or acquiesced to.

Smith v. Smith, 35 Fla.L.Weekly D2249 (Fla. 2nd DCA 2010).  Court order granting summary judgment on child support modification because there was a material dispute of fact.  In this case, the Former Wife could have over 40% visitation and therefore be entitled to gross up method, however before she did, she had to subject to psychological evaluations, therapy and home inspections.

Rivero v. Rivero, 35 Fla.L.Weekly D2203 (Fla. 1st DCA 2010).  Portion of modification final judgment requiring former wife to execute HIPPA releases and other documents necessary to confer with former wife’s doctors regarding a substance abuse issue reversed when judgment lacked any findings or conclusions.

Bishop v. Bishop, 35 Fla.L.Weekly D2147 (Fla. 2nd DCA 2010).  Trial court reversed for adopting proposed 17 page judgment verbatim.  While Florida law does not prohibit this, the 2nd DCA will reverse any judgment entered under circumstances that create an appearance that the judgment does not reflect the judge’s independent decision making.  Here there were 20 errors, omissions or irregularities.

Resor v. Welling, 35 Fla.L.Weekly D2143 (Fla. 5th DCA 2010).   Order transferring venue in child custody modification reversed.  No showing of substantial inconvenience or undue expense to establish a basis for transfer.

In re: Amendments to the Florida Family Law Rules, 35 Fla.L.Weekly S524 (Fla. 2010).  Supreme Court approves new forms for relocation and disestablishment of paternity.

Thier v. Thier, 35 Fl. Law. Weekly D1689 (Fla. 4th DCA 2010).  Court reversed for denying motion “to maintain status quo” without an evidentiary hearing.  Matter was set with 2 other motions and not reached.  Court stated it was not going to rule on motion, then denied it.

N.W. v. M.W., 35 Fl. Law. Weekly D1699 (Fla. 2nd DCA 2010).  Trial court erred in denying motion to introduce child heresay statement because there was no corroborating medical evidence of sexual abuse because that was an improper standard.  Trial court must make findings that satisfy 2 criteria: 1) the source of the information through which the statement was reported must indicate trustworthiness and 2) the time, content and circumstances of statement  provides sufficient safeguards of reliability.

Morell v. Booth, 29 So. 3d 429 (Fla. 5th DCA 2010).  Court reversed when requiring non-party to produce financial records without showing “compelling reason” to defeat non-party’s privacy rights.  Award of fees against non-party reversed because no finding of contempt.

Ginell v. Pacetti, 31 So. 3d 217 (Fla. 4th DCA 2010).  Court did not violate “Perlow Rule” because a) Court provided opportunity for both parties to submit a proposed final judgment, b) Court modified proposed order, c) Court participated in hearing (asked questions) and d) made preliminary oral findings.

Relocation:

Crombie v. Williams, 35 FLW D2893 (Fla. 3rd DCA 2010).  Denial of relocation affirmed in post judgment paternity where Mother relocated to Jacksonville right after serving notice of intent to relocate.

Larocka v. Larocka, 35 Fla. L. Weekly D2041 (Fla. 5th DCA 2010).  Final judgment which delegated authority to counselor to determine time sharing reversed.  Court cannot delegate that decision.  Reversal even in light of no transcript.  Error on face of judgment.

Sanchez v. Tillotson, 32 So. 3d 191  (Fla. 2nd DCA 2010).  Relocation order must be affirmed to the extent it was not error of law because no transcript.  Order of relocation to 18 year old son was error of law as UCCJEA does not apply to an 18 year old.

Zepeda v. Zepeda, 32 So. 2d 679  (Fla. 2nd DCA 2010).  Trial Court reversed for treating proposed time sharing as agreement and allowing temporary relocation.

Arthur v. Arthur, 35 Fla. L. Weekly S38 (Fla. 2010).  Resolves conflict.  Good Supreme Court discussion of relocation. 2nd DCA reversed for affirming relocation when child turns three.  The trial Court is required to make a final determination on the issue at the time.  Trial Court is not equipped with crystal ball that enables it to prophetically determine whether future relocation is in the best interest of the child.

Retroactivity:

Spano v. Bruce, 35 Fl. Law. Weekly D1811 (Fla. 3rd DCA 2010).  Court affirmed for awarding retroactive support to date of amended petition instead of date of initial petition.  Initial petition was dismissed without prejudice.

Valentine v. Van Sickle, 35 Fl. Law. Weekly D1663 (Fla. 2nd DCA 2010).  Husband challenged award of 18 months of retroactivity.  Husband argued he should be credited for paying mortgage.  Not so if property is held in entireties.  Matter was remanded because Court did not consider monies Wife withdrew for support during pendency of action.

UCJEEA:

Hindle v. Fuith, 35 Fla.L.Weekly D914 (Fla. 5th DCA 2010).  Trial court had subject matter jurisdiction to make initial custody determination over child currently residing in Florida even though Florida was not child’s home state, child had not lived in Florida for six months,  because Mother and child lived in several states in six months prior to filing.

Collier v. Collier, 29 So. 3d 437 (Fla. 1st DCA 2010).  Final Judgment awarding majority of time sharing to Father when Florida not home state of child.  It was undisputed child had not lived in Florida for more than six (6) months before petition filed.

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