Stephens Squibs’ – May 2012

Alimony:

Elbaum v. Elbaum, 86 So.3d 1272 (Fla. 4^th DCA 2012).  Trial Court reversed for requiring husband to secure alimony with life insurance without findings as to availability, cost, obligor’s ability to pay and special circumstances that warrant security.

Franks v. Franks, 82 So.3d 1252 (Fla. 1^st DCA 2012).   Trial Court reversed for granting 36 months of bridge-the-gap alimony.  Statute allows up to 24 months.

Appeals:

Hentze v. Denys, 88 So.3d 307 (Fla. 1^st DCA 2012).  “Law of the case doctrine” does not apply to trial orders.  Only applies to issues decided on appeal.

Attorneys’ Fees:

Giovanini v. Giovanini, 89 So.3d 280 (Fla. 1^st DCA 2012).  Trial Court reversed for awarding attorneys’ fees without evidentiary hearing and appropriate findings of fact.

Franks v. Franks, 82 So.3d 1252 (Fla. 1^st DCA 2012).  Trial Court’s denial of attorneys’ fees affirmed when former wife only requested fees in pleadings and never asked Court for them at trial.

Robinson v. Robinson, 88 So.3d 973 (Fla. 5^th DCA 2012).   Award of attorneys’ fees for time expended at trial and appellate levels for litigating parties’ violations of order affirmed.

Domestic Violence:

Ramirez v. Teutsh, 37 Fla. L. Weekly D1194 (Fla. 1^st DCA 2012).  Order summarily denying motion to dissolve DV injunction reversed and remanded for evidentiary hearing.

Enforcement:

Riera v. Riera, 37 Fla. L. Weekly D988 (Fla. 3^rd DCA 2012).  Agreement to pay adult child’s college tuition is NOT child support and therefore, not enforceable by contempt.  Agreement for both parties to equally pay cost of college tuition contained a latent ambiguity as it did not specifically include a private college.  Remanded to determine intent.

Equitable Distribution:

Franks v. Franks, 82 So.3d 1252 (Fla. 1^st DCA 2012).  Trial Court affirmed for directing former husband to name former wife beneficiary of a military Survivor Benefit Plan to protect her award of former husband’s retired Navy pay.  Trial Court has discretion to order a spouse to maintain an annuity for a former spouse under the Survivor Benefit Plan.

Robinson v. Robinson,88 So.3d 973 (Fla. 5^th DCA 2012).  Mathematical error resulting in unequal distribution shall be corrected on remand.

Imputation:

Hentze v. Denys, 88 So.3d 307 (Fla. 1^st DCA 2012).  Trial Court abused discretion by not imputing income after finding party voluntarily underemployed.

Miscellaneous:

DOR v. Holley, 86 So.3d 1199 (Fla. 1^st DCA 2012).  Mere delay in filing suit insufficient to establish the defense of latches.

Modification:

Mayo v. Mayo, 87 So.3d 820 (Fla. 2^nd DCA 2012).  Trial Court reversed for modifying time sharing schedule without addressing best interests of the children.

Silverman v. Silverman, 89 So.3d 974 (Fla. 3^rd DCA 2012).  Trial Court erred in granting upward modification of alimony based solely upon reduction in the purchasing power of the dollar.  There must be a showing that the national problem of inflation impacts specifically upon the individual claiming inflation as basis for modification.

Procedure:

Cole v. Cole, 86 So.3d 1175 (Fla. 5^th DCA 2012).  Trial Court abused its discretion by allowing witness to testify by telephone over objection in contravention to Fl. Rule Judicial Admin. Rule 2.530(d)(1).

Relocation:

Tucker v. Liebknecht, 86 So.3d 1240 (Fla. 5^th DCA 2012).  Trial Court reversed for enjoining wife from relocating 50 driving miles away.  Standard of measurement is straight line, as the crow flies, NOT driving mileage.

Guizzardi v. Guizzardi, 89 So.3d 967 (Fla. 3^rd DCA 2012).  Trial Court’s order granting petition to relocate was reversed and remanded because there was a clause prohibiting relocation in divorce agreement and the Trial Court did not find a substantial change of circumstances.  Fact Trial Court utilized new relocation statute inappropriately did not deprive court of subject matter jurisdiction.  New law’s provisions encompassed all requirements of previous, properly applicable law.

Support:

Gilbert v. Cole, 37 Fla. L. Weekly D1195, — So.3d — (Fla. 1^st DCA 2012).  Trial Court reversed for not reducing child support after one child emancipated.  Child support is an allocated award and should be reduced retroactively to date of emancipation regardless if modification has been filed.

UCCJEA:

Johnson v. Johnson, 88 So.3d 335 (Fla. 2^nd DCA 2012).  Trial Court reversed for depriving husband of due process by holding UCCJEA hearing with New York judge to determine jurisdiction without providing husband opportunity to participate.  Trial Court further deprived husband due process by granting motion to dismiss without hearing or notice.