Stephens’ Squibs – August 2012

Alimony:

Nousari v. Nousari, 94 So.3d 704 (Fla. 4th DCA 2012).  Award of durational alimony affirmed in moderate term marriage.  Good discussion of alimony.

Appeals:

Caruso v. Caruso, 93 So.3d 532 (Fla. 1st DCA 2012).  Appeal dismissed as premature as final judgment contemplated additional judicial labor on collateral issue of child support.

Domestic Violence:

Wilson v. Wilson, 93 So.3d 1130 (Fla. 5th DCA 2012).  Injunction affirmed when record sufficient to prove either domestic violence by stalking or acts giving rise giving former wife reasonable cause to believe she is in imminent danger of becoming a victim of domestic violence.

Lee v. Lee, 93 So.3d 516 (Fla. 2nd DCA 2012).  Order extending domestic violence reversed as it did not meet burden for extension.  When moving for extension of a pre-existing injunction, must establish that either additional domestic violence occurred or petitioner has a reasonable fear of being in imminent danger of domestic violence.

Enforcement:

Cole v. Cole, 95 So.3d 369 (Fla. 3rd DCA 2012).  Trial court’s order holding former husband in contempt reversed.  Marital Settlement Agreement specified former husband should provide health insurance.  Former husband lost job and enrolled children into “Healthy Kids” insurance program.  Marital Settlement Agreement did not specify terms of insurance.  Further order holding former husband in contempt for failing to pay his share of extracurricular activities reversed when he never consented to them.

McCord v. McCord, 94 So.3d 719 (Fla. 2nd DCA 2012).  Trial court reversed for requiring Former Husband to pilot Former Wife in his experimental plane.  Agreement provided Former Wife can use plane 4 hours per month and Former Husband would cooperate and pay pilot’s fee.  Agreement contained no express language for Former Husband to pilot Former Wife.

Holtz v. Holtz, 95 So.3d 457 (Fla. 4th DCA 2012).  Trial court reversed for contempt order that did not recite present ability to pay.  Further, equitable distribution payments are not enforceable by contempt.

Murphy v. Evans, 37 FLW D2032 (Fla. 3rd DCA 2012).  Bizarre case of attorney misconduct.  Attorney released funds frozen by court order.  Then, defied multiple orders to produce his trust records.  Trial court reversed for returning fines to attorney after case settled as matter was moot.  “This is not the proper message.  Fines resulting from civil contempt orders can only be reduced if the violator complies with the order that caused the fines.”

Equitable Distribution:

Hedman v. Hedman, 37 FLW D1757 (Fla. 3rd DCA 2012).  Marital home jointly titled in both parties names by the entirety, paid for by husband’s father, properly categorized as marital property subject to equitable distribution.

Cunha v. Cunha, 92 So.3d 918 (Fla. 4th DCA 2012).  Trial court’s order denying former husband’s Motion to Vacate Judgment reversed when former husband satisfied underlying obligation for discount.  Marital Settlement Agreement did not specify amount, only responsibility.

Reilly v. Reilly, 94 So.3d 693 (Fla. 4th DCA 2012).  Trial court reversed for failing to credit wife ½ of roof repair when agreement provided parties are equally responsible for repairs.  Fact husband did not consent to repair not germane.  Interpretation of agreement subject to de novo review.  Trial court affirmed for requiring husband to make equalizing payment.  Husband’s defense that selling house was condition precedent failed because agreement did not clearly provide for condition precedent.

Modification:

Walters v. Walters, 37 FLW D1877 (Fla. 4th DCA 2012).  Trial court reversed for refusing to reassess wife’s needs on former husband’s petition for modification.  It is unjust to allow a former spouse to continue to receive same amount if there has been substantial changes in recipient’s needs.

Abbott v. Abbott, 37 FLW D1920 (Fla. 2nd DCA 2012).  Trial court reversed for granting “shared parental responsibility” to husband when relief never requested in modification.

Wiesenfeld v. Wiesenfeld, 37 FLW D1949 (Fla. 1st DCA 2012).  Trial court affirmed for terminating former wife’s alimony upon receipt of an inheritance from her mother that will make her self-supporting.  Trial court reversed for retroactive termination of alimony for months prior to wife receiving inheritance.

Maher v. Maher, 37 FLW D1952 (Fla. 4th DCA 2012).  Trial court affirmed for denying a petition to modify support.  Here, record evidence suggested former husband was voluntarily underemployed.  When the original child support is based on agreement by the parties, there is a heavier burden on the party seeking downward modification.

Cook v. Cook, 94 So.3d 683 (Fla. 4th DCA 2012).  Trial court reversed for denying alimony modification based upon clause in agreement that indicated alimony would be modified if custody was modified.  This did not waive statutory right to modification.

Cortina v. Lorie, 95 So.3d 467 (Fla. 5th DCA 2012).  Trial court erred in reducing former husband’s support arrearage because he was in jail.  Child support is a vested right and arrearages cannot be reduced absent exceptional circumstances.  (i.e. latches)

Paternity:

Fabre v. Fabre, 95 So.3d 471 (Fla. 5th DCA 2012).  Order dismissing paternity action between biological father and woman who was married, who had illegitimate child during marriage and now divorced, because Final Judgment dissolving her marriage that established her husband as the father had res judicata effect reversed because biological father not party to divorce.

Procedure:

Ross v. Ross, 93 So.3d 495 (Fla. 2nd DCA 2012).  Courts presume a legal document from an incarcerated person is timely served and filed if “it contained a certificate of service showing specific date document was placed in hands of prison officials if the document would be timely filed if received by clerk on that date.”

Diedrick v. Diedrick, 37 FLW D1786 (Fla. 5th DCA 2012).  Trial court’s Final Judgment revised when trial court denied wife’s request for continuance at status conference.  Trial was 8 days later and the wife did not have time to conduct discovery.

Support:

DOR v. Kline, 95 So.3d 440 (Fla. 4th DCA 2012).  Child support calculated with adjustment for substantial time spent with non-custodial parent reversed when time sharing was not pursuant to a “parenting plan”.

Weaver v. Weaver, 37 FLW D2048 (Fla. 2nd DCA 2012).  Support order requiring uncovered health expenses be equally divided by parties reversed and remanded to allocate expenses in accordance with parties respective shares of child support obligation.

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