Family Law Case Updates – January 2012

Agreements:

Khan v. Khan, 79 So. 3d 99 (Fla. 4th DCA 2012).  Trial court reversed for striking notice of hearing for temporary relief based on allegation Wife waived alimony and fees in a MSA she signed in a previous divorce that had already been dismissed.  It is against public policy to waive temporary alimony and fees.

Appeals:

Messier v. Martin-Messier, 77 So. 3d 795 (Fla. 3rd DCA 2011).  Motion for rehearing did not toll time to file appeal of an order denying 1.540 motion.  A motion for rehearing directed at a non-final order does not toll time for appeal.

Attorneys’ Fees:

Leon v. Velazquez, 79 So. 3d 114 (Fla. 3rd DCA 2012).  Order awarding temporary fees reversed and remanded when order lacked findings of fact as the Husband’s ability and Wife’s need.

Luke v. Luke, 79 So. 3d 388 (Fla. 1st DCA 2012).  Order of fees reversed for failure to include findings as to reasonableness of rate and hours.

Equitable Distribution:

Robertson v. Robertson, 78 So. 3d 76 (Fla. 5th DCA 2012).  Trial court’s judgment finding no active appreciation in pre-marital website reversed when Wife sought continuance because out of state expert was unavailable and trial court refused to let expert provide rebuttal testimony by phone.  Trial court should have found a way to accommodate the Wife.

Imputation of Income:

Middleton v. Middleton, 79 So. 3d 836 (Fla. 5th DCA 2012).  Trial Court reversed for failing to impute income to the Wife because the Husband’s expert could not place Wife in a job.  Trial Court should have considered Wife’s work history, occupational qualifications and prevailing earnings in the community.

Modification:

Koslowski v. Koslowski, 78 So. 3d 642 (Fla. 1st DCA 2011).  Trial court affirmed for increasing and extending child support that is incompetent and suffers seizure disorder.

Nabinger v. Nabinger, 82 So. 3d 1075 (Fla. 1st DCA 2011).   Trial court erred in offsetting child support for adoption subsidy Former Wife received for adopted child when there was no offset in original final judgment.

Galligar v. Galligar, 77 So. 3d 808 (Fla. 1st DCA 2011).  Trial court reversed when it only modified Former Husband’s alimony obligation down to $3,500 per month.  While Court may consider net worth, past earnings and capital assets, Court cannot require Former Husband to incur indebtedness and deplete assets to pay alimony.

Parenting:

TMH v. DMT, 79 So. 3d 787 (Fla. 5th DCA 2011).  Trial court reversed for ruling lesbian woman who donated ova to lesbian partner and raised child with her was deprived of parental rights pursuant to section 742.14, Florida Statutes.  5th DCA found statute unconstitutional and certifies conflict.

Paternity:

DOR v. Iglesias, 77 So. 3d 878 (Fla. 4th DCA 2012).  Order dismissing paternity suit filed by alleged biological father against intact married couple remanded for determination remanded for finding whether it would be in best interest of child to allow DOR to pursue paternity action.  Order dismissing contained no findings of fact and was not an evidentiary hearing.

DOR v. GAT, 76 So. 3d 1083 (Fla. 2nd DCA 2011).  Trial court reversed for entering order disestablishing paternity because Mother did not produce child for DNA testing.  Remanded to determine if failure to submit to testing was willful.

Procedure:

Ross v. Ross, 77 So. 3d 238 (Fla. 4th DCA 2012).  Trial Court reversed for continuing to preside over case after granting motion for recusal.

In Re: Rules of Family Law Pro, 37 FLW S36 (Fla. 2012).  Rules clarify parties are not to file financial documents in court file along with discovery responses.

Relocation:

Schell v. Schell, 77 So. 3d 895 (Fla 5th DCA 2012).  Trial court’s order allowing relocation affirmed when there was no transcript and no errors on face of the judgment.