Stephens’ Squibs – June 2012

Agreements:

Simon v. Simon,  91 So.3d 214 (Fla. 4th DCA 2012).  Trial court reversed from deviating for clear unambiguous language in prenuptial agreement on how to divide artwork in event of disagreement.

Chovan v. Chovan, 90 So.3d 898 (Fla. 4th DCA 2012).  Trial court reversed for entering proposed judgment inconsistent with partial settlement announced in court.  Parties did not agree to term of durational alimony and income to be imputed to Wife for purposes of determining child support so those issues were remanded.

Alimony:

Katz v. Katz,  90 So.3d 909 (Fla. 2nd DCA 2012).  Award of rehabilitative alimony where component of the award granted $15,556 for memberships and licenses when need was only $1,556.  Award of $5,000/month bridge the gap alimony for 24 months affirmed.

Coviello v. Coviello, 89 So.3d 1116 (Fla. 4th DCA 2012).  Temporary relief order awarding Wife $11,500 in temporary alimony, $200,000 in fees and $85,000 in other expenses when Husband had income of $360,000 in 8 year marriage affirmed as temporary relief awards are among the areas in which judges have broadest discretion.

Vitro v. Vitro, 37 Fla. L. Weekly D1333 (Fla. 4th DCA 2012).  Award of retroactive alimony to point in time preceding filing of divorce remanded for redetermination.

Green v. Green, 37 Fla. L. Weekly D1317 (Fla. 4th DCA 2012).  Trial court affirmed for awarding permanent alimony in 17 year marriage.  Amount reversed because court failed to impute income to the Wife when she had requisite skills that allowed her to earn $80/hour running photography business.  Further, Wife’s unwillingness to work for $10/hour is competent evidence unemployment was self-imposed.

Attorney’s Fees:

Youngblood v. Youngblood, 91 So.3d 190 (Fla. 2nd DCA 2012).  87 hours of attorney time on non-complex family law appeal excessive.  Trial court cannot award costs unless party pleads for it within 30 days after mandate.

DeCampos v. Ferrara, 90 So.3d 865 (Fla. 3rd DCA 2012).  Denial of attorneys’ fees in enforcement action reversed.  Trial court erroneously concluded husband’s motion was an action for equitable declaratory proceeding and denied fees per Flanders.  An action for declaratory relief asks the Court to define a legal relationship between the parties and their rights without ordering anything be done or ordering damages.  Here attorney’s fees were appropriate under Chapter 61.

Payne v. Payne, 88 So.3d 1016 (Fla. 2nd DCA 2012).  Denial of attorney’s fees reversed when it was clear Husband was in need, Wife had ability.

Child Support:

DOR v. Mcleod, 37 Fla. L. Weekly D1373 (Fla. 2nd DCA 2012).  DOR does not have standing to seek a modification of child support on behalf of obligor unless either party is on public assistance or DOR has previously aided in enforcement.

Discovery:

Rowe v. Rodriguez-Schmidt, 89 So.3d 1101 (Fla. 2nd DCA 2012).  Trial court’s order compelling former wife to produce unredacted tax returns which revealed new spouse’s confidential information reversed.  Article 1, Section 23 of the Florida Constitution protects the financial information of persons if there is no relevant or compelling reason to require disclosure.  Burden to prove information is relevant or reasonably calculated to lead to the discovery of admissible evidence is on the party seeking the information.

Domestic Violence:

Williams v. Williams, 89 So.3d 301 (Fla. 5th DCA 2012).  Injunction against domestic violence reversed when no evidence presented to support injunction.  Law requires more than general relationship problems and uncivil behavior, rather, law requires sufficient evidence establishing an objective reasonable fear that danger is imminent.

Giddens v. Tlsty, 87 So.3d 843 (Fla. 1st DCA 2012).  Injunction against repeat violence reversed when no written findings of two instances of violence.  No evidence in record that would support two incidents of violence.

Enforcement:

Henderson v. Lyons, 37 Fla. L. Weekly D1374 (Fla. 2nd DCA 2012).  Trial court’s order denying contempt because judgment contained no provision Former Husband has to pay psychological/counseling expenses reversed.  Parent’s obligation to pay child’s medical expenses includes psychological expenses.

Equitable Distribution:

Tate v. Tate, 91 So.3d 199 (Fla. 2nd DCA 2012). Trial court erred in requiring former wife to pay expenses associated with condominium pending sale and requiring wife to rent the condo without a reimbursement to the wife of one half the expenses upon sale.  Here, Wife was not awarded occupancy so property reverted to tenancy in common.  Wife invited error by not listing accounts as non-marital.  Court erred by not following party’s stipulation of valuation date and failed to credit husband $15k he spent as required in previous order.  Error to charge Wife with depletion without finding of waste.

Mathes v. Mathes, 91 So.3d 207 (Fla. 2nd DCA 2012). Final judgment that created quasi receivership over nonparty corporation reversed and remanded to be retried as divorce proceeding.  2nd DCA suggested meditation as not to humiliate the attorneys with opinion reflecting the magnitude of errors.

Gilbert v. Katz-Gilbert, 37 Fla. L. Weekly D1287 (Fla. 4th DCA 2012).  Trial court reversed for allocating $200,000 in liabilities to husband and only $25,000 to the Wife without any explanation or findings of fact.

VanEtten v. VanEtten, 92 So.3d 235 (Fla. 1st DCA 2012).  Distribution that was not equal and not explained remanded for further explanation as to why Court did not equitably divide assets and liabilities.

Forest-Kohl v. Kohl, 37 Fla. L. Weekly D1218 (Fla. 4th DCA 2012).  Trial court reversed for failing to classify credit card debt and student loans incurred during marriage.  Court commits reversible error when it fails to classify a contested liability.

Payne v. Payne, 88 So.3d 1016 (Fla. 2nd DCA 2012).  Denial of permanent alimony in long term marriage affirmed because Husband could meet his needs from his own income.  Husband appealed trial courts findings of fact, but the decision was supported by competent evidence.

Imputed Income:

Vitro v. Vitro, 37 Fla. L. Weekly D1333 (Fla. 4th DCA 2012).  Trial court affirmed for imputing $30,000, as opposed to $45,000, income to the Wife.  To impute income the Court must consider two things.  First, the trial court must determine employment was terminated voluntary.  Next, Court must determine unemployment was the result of failing to diligently seek employment at equivalent level.  The trial court may only impute a level of income supported by evidence and probable earnings based upon work history, qualifications and prevailing wages in the community.

Piedra v. Piedra, 37 Fla. L. Weekly D1330 (Fla. 4th DCA 2012).  Trial Court affirmed for finding Husband voluntarily underemployed but reversed on amount because the Court imputed gross receipts less costs of goods without deducting any other business expenses.  Remanded to determine legitimate business expenses.

Misc.:

In Re: Amendments to Fla. S.C. Approved Forms, 94 So.3d 558 (Fla. 2012).  Form 12.966(d) “Income Withholding for Support” form approved.

In re: Amendments to Rule of Judicial Administration, 37 Fla. L. Weekly S423 (Fla. 2012).  Service by e-mail.

Modification:

Crittenden v. Davis, 37 Fla. L. Weekly D1397 (Fla. 4th DCA 2012).  Trial court erred modifying parental responsibility without a substantial change in circumstances.  Trial court erred granting modification without affording the former husband an opportunity to testify.  Having automatic change of custody as consequence for former husband failing to share parental responsibility was an inappropriate sanction.  Custody cannot be changed as punishment for frustration of visitation in absence of best interest of the children.  Awarding former wife all of holiday timesharing is inappropriate.

Parenting:

Culbertson v. Culbertson, 90 So.3d 355 (Fla. 4th DCA 2012).  Trial court affirmed for not restricting father’s overnight visitation, though child had significant health problems which required constant monitoring.  Restriction of visitation is generally disfavored, unless the restriction is necessary to protect the welfare of the child.  Strong dissent.

Eisele v. Eisele, 91 So.3d 873 (Fla. 2nd DCA 2012).  Judgment that precluded child from being homeschooled made when child was less than 2 years old reversed; it was an inappropriate prospective determination.

Schwieterman v. Schwieterman, 37 Fla. L. Weekly D1252 (Fla. 5th DCA 2012).  Former Wife’s argument that appellate court had “de nova” review over trial court’s determination of 50/50 timesharing rejected when there was no evidence Court believed there was a presumption in favor of equal timesharing or otherwise erred as matter of law.  Provisions that allowed grandparents to resolve disputes and hold children’s important documents reversed as it interfered with Wife’s constitutional right to parent.

Relocation:

Essex v. Davis, 37 Fla. L. Weekly D1318 (Fla. 4th DCA 2012).  Post judgment order directing Mother to return child to Palm Beach pending relocation hearing reversed when Mother had relocated prior to signing original agreement.  Because this order effectively transferred custody, it is a reviewable non-final order.

Supportive Relationship:

Overton v. Overton, 92 So.3d 253 (Fla. 1st DCA 2012).  Trial court affirmed for refusing to modify alimony when former wife was in a supportive relationship but relationship had no effect on former wife’s need for alimony.

UCCJEA:

 Durham v. Butler, 89 So.3d 1023 (Fla. 3rd DCA 2012).  Foreign writ of prohibition prevents Florida court from exercising jurisdiction in a paternity action when action originally brought in another state and appeal was still pending.

 M.A.C. v. M.D.H., 88 So.3d 1050 (Fla. 2nd DCA 2012).  Trial court reversed for dismissing paternity action based on erroneous conclusion court lacked jurisdiction because Florida was not child’s current home state.  Under 61.514(1)(a), Florida is allowed to exercise jurisdiction if anytime in the preceding 6 months, Florida was the child’s home state.

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