Stephens’ Squibs – November 2012

Alimony:

Currier v. Currier, 99 So.3d 996 (Fla. 5^th DCA 2012).  Award of permanent alimony reversed as record did not contain competent, substantial evidence of former husband’s ability to pay.

Margaretten v. Margaretten, 37 Fla. L. Weekly D2660 (Fla. 1^st DCA 2012).  Award of permanent alimony remanded because trial court failed to include finding that permanent alimony was most favorable and reasonable type of alimony under the circumstances.

Agreements:

Colley v. Colley, 37 Fla. L. Weekly D2660 (Fla. 1^st DCA 2012).  Trial court reversed for setting aside an entire settlement agreement because it did not address marital debt and one provision relieved party of obligation to sign tax return but did not address tax debt.  If parts of agreement appear to be vague, court should interpret agreement to give effect of intent of agreement.  A settlement agreement need not resolve all issues to be valid.

Appeals:

Campbell v. Campbell, 100 So.3d 763 (Fla. 4^th DCA 2012).  Trial court lacked jurisdiction to modify a parenting plan under appeal.

Attorneys’ Fees:

Perez v. Perez, 100 So.3d 769 (Fla. 2^nd DCA 2012).  Order awarding fees remanded when no findings as to need, ability and reasonableness of rate & hours.  Payment plan also requires findings of fact.

Miller v. Miller, 37 Fla. L. Weekly D2679 (Fla. 4^th DCA 2012).  Award of attorney’s fees in modification action reversed when based upon prevailing party clause in agreement that applied to enforcement (as opposed to modification).

Domestic Violence:

Hernandez v. Silverman, 100 So.3d 272 (Fla. 4^th DCA 2012).  Trial court reversed for dismissing DV injunction without full evidentiary hearing; allegations were pled with sufficient specificity and evidence that would have been advanced at hearing could have constituted grounds for injunction.

Ricks v. Dodier, 37 Fla. L. Weekly D2651 (Fla. 5^th DCA 2012).  Domestic violence injunction entered without evidentiary hearing based on stipulation that only provided temporary extension reversed.

Enforcement:

Weiss v. Weiss, 100 So.3d 1220 (Fla. 2^nd DCA 2012).  Trial court affirmed for enforcing Illinois property division by contempt as Illinois law allows it.  Former husband’s concern that Florida does not allow incarceration for debts was premature as former husband had not been ordered to be incarcerated.  Florida court’s interest calculation reversed, because Illinois statutory interest was proper until date case was domesticated in Florida.

Equitable Distribution:

Tradler v. Tradler, 100 So.3d 735 (Fla. 2^nd DCA 2012).  Trial court reversed for failing to take into consideration tax consequences on husband’s retirement required to equalize marital estate.  Trial court should not have charged accounts depleted during pendency to husband without finding of misconduct.  Checks deposited into marital account after date of filing did not comingle funds to make accounts marital.

Hernandez v. Hernandez, 37 Fla. L. Weekly D2654 (Fla. 5^th DCA 2012).  Trial court affirmed for basing valuation of real property on tax assessor’s valuation when both parties presented evidence of value by financial affidavit and property appraiser valuation was within parties’ range.  Trial court reversed for not addressing loan and other items of property.

Modification:

DJS v. WRR, 99 So.3d 991 (Fla. 2^nd DCA 2012).  Order dismissing modification reversed when modification filed while child was 18, still in high school with reasonable expectation of graduation by 19^thbirthday and child support award did not have provision saying it terminated on 18^th birthday.

Scott v. Scott, 37 Fla. L. Weekly D2653 (Fla. 5^th DCA 2012).  Trial court’s order reducing alimony from $700 to $500 reversed and remanded even though court skeptical of former husband’s claimed expenses because record did not show ability for former husband to pay $500.

Procedure:

Champion v. Champion, 98 So.3d 1289 (Fla. 1^st DCA 2012).  Any order resulting from Magistrate’s report must be reversed if matter not properly referred to Magistrate.

Support:

DOR v. Wilson, 100 So.3d 1283 (Fla. 1^st DCA 2012).  Trial court reversed for basing child support on informal time sharing arrangement as opposed to court approved parenting plan.

UCCJEA:

Edgar v. Firuta, 100 So.3d 255 (Fla. 3^rd DCA 2012).  Trial court reversed for modifying parental responsibility and timesharing when former wife fled jurisdiction with child.  Vindication of trial court’s order is subordinate to child’s welfare.  Virginia did not have jurisdiction as former wife failed to inform Virginia court of pending Florida litigation.  Trial court could not eliminate former husband’s pre-filing support arrearage as it was a vested right.