Stephens’ Squibs – March 2012

Alimony:

Quinones v. Quinones, 37 Fla.L.Weekly D699 (Fla. 3rd DCA 2012).  Award of permanent alimony of $14,135 per month in 21 year marriage reversed when Wife had needs of $28,000 and Husband had net income of $58,000 per month.  Trial Court cannot consider Husband’s contributions to adult son in determining alimony.

Bryne v. Bryne, 37 Fla.L.Weekly D688 (Fla. 3rd DCA 2012).  Award of permanent alimony to Husband in 9 year marriage when Husband became disabled during marriage reversed when Trial Court failed to consider each spouse’s pre dissolution income, addition income received by Husband, and Wife’s drastic reduction in income.

Rucker v. Rucker, 82 So.3d 189 (Fla. 1st DCA 2012).  Trial Court’s award of 18 months bridge the gap alimony reversed and remanded when Court miscalculated parties income and failed to take into consideration Wife’s significant contributions to the marriage.

Gulledge v. Gulledge, 82 So.3d 1113  (Fla. 2nd DCA 2012).  Trial Court reversed for not awarding Husband at least nominal alimony in a 30 year marriage where Wife earned around $60,000 and evidence suggested Husband earned $6,000 per year but was voluntarily underemployed.

Agreements:

Simon v. Simon, 37 Fla.L.Weekly D582 (Fla. 4th DCA 2012).  Trial Court reversed for limiting Wife’s claim for temporary relief based on terms of prenuptial agreement.  Until a marriage is dissolved, support cannot be waived by agreement.

Macleod v. Macleod, 82 So.3d 147 (Fla. 4th DCA 2012).  Judge Oftedal reversed for classifying Nova Scotia cottage as marital when post-marital agreement provided any assets obtained by gift or from non-marital funds so long as they were not converted into tangible assets and used by Husband and Wife.  Here, the property was used, but never converted.  Remanded to determine amount of marital enhancement due to paying taxes and improvements from marital sources.

Attorneys’ Fees:

Lamolinara v. Lamolinara, 37 Fla.L.Weekly D721 (Fla. 1st DCA 2012).  Trial Court should not deny Former Wife’s request for appellate fees because her appeal was without merit as opposed to  frivolous.

Colado v. Caryi, 37 Fla.L.Weekly D647 (Fla. 5th DCA 2012).  Order awarding Husband attorney’s fees for vexatious, unnecessary litigation reversed when there was no evidence Wife engaged in vexatious or unnecessary litigation.

Halloc v. Halloc, 37 Fla.L.Weekly D517 (Fla. 4th DCA 2012).  Judge Diana Lewis reversed for assessing attorneys’ fees against the Wife because the refusal to settle the case in and of itself cannot be a basis.  There must be vexatious conduct or bad faith litigation which was not present in this case.  Trial Court affirmed for awarding reduced fees to Wife for her failure to accept reasonable settlement.  The Trial Court can use results obtained, vexatious litigation, harassment, or other bad faith type conduct to deny attorney’s fees to a spouse otherwise entitled to fees based upon need and ability to pay.

Gulledge v. Gulledge, 82 So.3d 1113 (Fla. 2nd DCA 2012).  Trial Court reversed for not addressing or reserving jurisdiction on Husband’s properly pled request for attorneys’ fees.

Routh v. Thompson, 82 So.3d 157 (Fla. 2nd DCA 2012).  Order awarding attorneys’ fees reversed where Court found Wife owed her attorney $60,000, Husband failed to make Court ordered alimony payments, and Husband’s financial affidavit reflected $4,027 in income.  Order failed to make findings as to Wife’s needs, Husband’s source of income, reasonableness of hours expended, and rate.

Domestic Violence:

Berthiaume v. B.S., 37 Fla.L.Weekly D609 (Fla. 1st DCA 2012).  Final injunction against sexual violence affirmed when based upon parent’s verified petition that she had reasonable cause to believe child had been victim of sexual violence.

C.S. v. T.S.P., 82 So.3d 1132 (Fla. 2nd DCA 2012).  Injunction against dating violence reversed when no threat or act of physical violence.  Girlfriend’s feeling she was being stalked and boyfriend’s single appearance on her porch did not suffice.

Enforcement:

Parris v. Silveira, 82 So.3d 201  (Fla. 4th DCA 2012).  Order holding mother in civil contempt because the Court believed she had lied was reversed because contempt was not based upon the violation of a preexisting order.

Equitable Distribution:

Bryne v. Bryne, 37 Fla.L.Weekly D688 (Fla. 3rd DCA 2012).  Trial Court erred in awarding marital residence to Wife with negative equity and otherwise equitable distributing assets and liabilities.  Remanded for Court to explain why unequal award was justified.

Swergold v. Swergold, 82 So.3d 1148 (Fla. 4th DCA 2012).  Judgment requiring Husband to pay expenses on property, but denying him credits at time of sale remanded for explanation.

Preudhomme v. Bailey, 82 So.3d 138 (Fla. 4th DCA 2012).  Error for Trial Court to make determination as to whether Jamaican property is marital or not.  Matter remanded for Court to determine if property was acquired by gift or purchase.  Court should not require parties to litigate matter in Jamaica.

Exclusive Use and Possession:

Gulledge v. Gulledge, 82 So.3d 1113 (Fla. 2nd DCA 2012).  Trial Court reversed for awarding exclusive use and possession and not including a date in which refinancing or sale must occur.

Phillips v. Phillips, 37 Fla.L.Weekly D496 (Fla. 2nd DCA 2012).  Trial Court affirmed for awarding exclusive use and possession of marital home to Wife until minor child with special needs 18th birthday.  Trial Court affirmed for requiring Husband to pay one-half of mortgage because he had an equity interest.

Modification:

Morrell v. Morrell, 37 Fla.L.Weekly D621 (Fla. 2nd DCA 2012).  Trial Court erred in denying Former Husband’s petition for modification to reduce his obligation based on the fact the Former Husband was in a supportive relationship.  Supportive relationship refers to payee’s relationship, not payor’s.

Gentry v. Morgan, 37 Fla.L.Weekly D559 (Fla. 3rd DCA 2012).  Trial Court reversed for vacating agreement and judgment establishing support.  When the Trial Court has approved the parents’ agreement, including its child support provision, and finds it to be at of that moment in the best interest of the child, any later modification must be predicated on a substantial change of circumstances.

King v. King, 82 So.3d 1124 (Fla. 2nd DCA 2012).  Trial Court reversed for modifying alimony based on supportive relationship that existed prior to parties divorce and original determination of alimony.  Lengthy opinion on support relationships.

Walker v. Walker, 80 So.3d 1128 (Fla. 4th DCA 2012).  Trial Court reversed for dismissing a petition to convert rehabilitative alimony to permanent alimony and modify amount.

Parenting:

Slover v. Meyer, 80 So.3d 453 (Fla. 2nd DCA 2012).  When the custody dispute is between a natural parent and a third party custody should be denied to the parent only when granting custody to natural parent will be detrimental to the welfare of the child.

Preudhomme v. Bailey, 82 So.3d 138 (Fla. 4th DCA 2012).  Judge Goldenberg reversed for entering final judgment in a “toxic” case that awarded four hours of supervised visitation to the Wife because her actions “were out of control” and restricted the Wife from filing a modification until she completed 52 weeks of individual therapy, 26 weeks of joint therapy with children, five lessons on child discipline, 2 eight week courses of parental effectiveness.  There was no evidence to support specific time restrictions on the Wife’s ability to seek modification, which severely impacted her ability to parent.

Paternity:

J.C.J. v. DOR, 80 So.3d 1106 (Fla. 2nd 2012).  Trial Court reversed for denying petition for disestablishing because father’s DNA test was obtained more than 90 days before filing.  In this case, Father swore he did not have access to child at that time.  Section 742.18(1)(b).

Procedure:

In re: Fl.S.C. Approved Family Law Forms, 37 Fla.L.Weekly DS230 (Fla. 2012).  Amends forms; order granting petition for temporary custody by an extended family member, 12.970(e) and order granting petition for concurrent custody by an existing family member, 12.970(f).

Dolan v. Dolan, 81 So.3d 558 (Fla. 3rd DCA 2012).  Trial Court reversed for dismissing petition for modification for failure to obtain personal service.  The Former Wife waived that defense when she made an appearance and filed a responsive pleading and did not raise the issue of service.

Support:

Williams v. Lutrario, 81 So.3d 589 (Fla. 4th DCA 2012).  Support order reversed that awarded Father IRS deduction in odd years but failed to provide Mother was required to execute waiver only if Father was current in payments.

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