Family Law Case Updates – February 2012

Alimony:

Justice v. Justice, 80 So.3d 405 (Fla. 1st DCA 2012).  Award of permanent alimony in 11 year marriage reversed when judgment lacked findings of need and explanation why permanent alimony was necessary in a grey-area marriage.

Melton v. Melton, 79 So.3d 154 (Fla. 2nd DCA 2012).  Trial court’s award of alimony reversed when trial court deducted voluntary contributions to retirement from husband’s net income for purposes of determining his ability.

Crick v. Crick, 78 So.3d 696 (Fla. 2nd DCA 2012).  Award of bridge the gap alimony of $2,000 per month for 24 months reversed and remanded when trial court failed to make findings of fact as to need and ability.  Bridge the gap alimony may be awarded to assist a party by providing support to allow the party to make a transition from being married to single.  It is designed to assist a party with legitimate identifiable short-term needs and is not modifiable in amount or duration.

Agreements:

Stoothoff v. Hobdy, 79 So.3d 198 (Fla. 5th DCA 2012).  Trial court erred in concluding parties reached a binding verbal agreement on timesharing when there was no written executed parenting plan.

Appeals:

Garcia-Lawson v. Lawson, 82 So.3d 137  (Fla. 4th DCA 2012).  Final judgment entered while interlocutory appeal was pending reversed and remanded for re-entry now that appeal has been dismissed as frivolous.

Peterson v. Peterson, 37 Fla.L.Weekly D270 (Fla. 2nd DCA 2012).  Appeal of non-final order dismissed as premature.  An order that purports to be a final judgment of dissolution but fails to dispose of integrally related issues is non-final.

Attorneys’ Fees:

Dinardo v. Dinardo, 82 So.3d 1102 (Fla. 2nd DCA 2012).   Order denying fees reversed when trial court failed to include bonus income in analysis.  Good discussion of bonus income.

Riveiro v. Mason, 82 So.3d 1094 (Fla. 2nd DCA 2012).  Good discussion of charging liens.  There is no statutory guide to how to perfect charging lien.    Rather, requirements developed by case law.  1) There must be a contract between attorney and client (express or implied); 2) there must be an understanding (express or implied) payment is dependent upon recovery or will come from recovery; and 3) remedy available where there is an attempt to avoid payment or where there is a dispute as to amount.  In order to attach to real property there must be an agreement that fee protected by charging lien against real property.

Crick v. Crick,78 So.3d 696 (Fla. 2nd DCA 2012).   Award of attorneys’ fees reversed and remanded when trial court failed to consider financial resources of the parties as affected by the final judgment.

Domestic Violence:

Achurra v. Achurra, 80 So.3d 1080 (Fla. 1st DCA 2012).  Domestic Violence injunction was not reversed when court tool judicial notice of divorce proceedings outside of domestic violence file because pro-se respondent did not object.   Domestic Violence injunction was not reversed when it lacked findings of fact and respondent failed to seek rehearing.  Domestic violence injunction reversed where record lacked substantial competent evidence to support injunction.

Barile v. Gayheart, 80 So.3d 1085 (Fla. 2nd DCA 2012).  Injunction against domestic violence reversed when originated from a petition for injunction.  Due process violated.

Enforcement:

Drdek v. Drdek, 79 So.3d 216  (Fla. 4th DCA 2012).  Order adopting magistrates’ report  reversed when report corrected errors of law of a previous order entered by circuit judge adopting a different magistrates’ report.  “Law of the Case Doctrine” does not apply as previous order was not appealed.

Norberg v. Norberg, 79 So.3d 887 (Fla. 4th DCA 2012).  Trial court’s order on contempt was not reversed even though there was no finding as to ability because incarceration was not sought.  Trial court’s order on contempt was not reversed even though court accepted former husband’s verbal testimony about amount paid.  Former wife chose not to attend hearing and could have challenged testimony.  Order on contempt reversed when record lacked substantial competent evidence of an intentional violation.

Sauriol v. Sauriol, 79 So.3d 204 (Fla. 2nd DCA 2012).  Order on civil contempt for violating domestic violence injunction reversed when remedy was designed to punish as opposed to coerce compliance.

Leo v. Leo, 79 So.3d 188 (Fla. 4th DCA 2012).  Order of contempt reversed where wife not afforded evidentiary hearing or opportunity to be heard.  While relevant evidence may have been presented during dissolution proceedings, party still entitled to present evidence in context of contempt hearing.

Equitable Distribution:

Toral v. Toral, 79 So.3d 153 (Fla. 3rd DCA 2012).  Trial Court affirmed for concluding fund was marital when that had been commingled and given to other’s spouse’s parent to invest at higher interest rate.  Moving party failed to prove no gift was intended.

Exclusive Use:

Fisher v. Fisher, 78 So.3d 100 (Fla. 4th DCA 2012).  Award of exclusive use and possession of marital residence until child’s emancipation reversed when it did not provide for termination upon occupants remarriage.

Parenting:

Justice v. Justice, 80 So.3d 405 (Fla. 1st DCA 2012).  Final judgment containing inconsistencies for timesharing reversed.

Procedure:

Knowles v. Knowles, 79 So.3d 870 (Fla. 4th DCA 2012).  Order denying modification reversed due to erroneous legal conclusion.  Parties married and divorced twice.  In 2007 a modification order was entered but filed in first case be error.  Court erred in concluding 2006 final judgment superseded 2007 modification order filed in wrong case.

King v. King, 78 So.3d 689 (Fla. 2nd DCA 2012).  Trial court’s denial of motion to dismiss because erroneous belief it had lost jurisdiction and moving party was limited to civil contract action reversed.

Support:

CJE v. SDA, 79 So.3d 229 (Fla. 2nd DCA 2012).  Paternity order establishing support reversed when day care costs were not included in calculation.  Error was on face of order so no transcript needed.