Stephens’ Squibs – December 2012

Alimony:

Gray v. Gray, 37 Fla. L. WeeklyD2862 (Fla. 1st DCA 2012).  Trial court reversed for awarding wife $30,000 per month in permanent alimony when her needs were only $17,909 per month without any explanation.  Trial court reversed for failing to impute income to Wife and rejecting Husband’s vocational expert without any findings of facts.  Trial court’s conclusion that it was in best intest of children for Wife to stay home lacked record support.

Therriault v. Therriault, 37 Fla. L. Weekly D2811 (Fla. 1st DCA 2012).  Award of permanent alimony in 16 year moderate marriage affirmed.  Because final judgment was entered before July 1, 2011, court did not have to find no other form of alimony is reasonable under circumstances.  Award of life insurance to protect award reversed because trial court failed to make findings as to the cost, availability and special circumstances that warrant such a security.

Attorneys’ Fees:

Liberatore v. Liberatore,  37 FLW D2854 (Fla. 5th DCA 2012).  Trial Court reversed for charging Wife with deplete account used to pay her attorneys’ fees without finding of misconduct.

Weissman v. Abou-Sayed, 37 Fla. L. Weekly D2786 (Fla. 4th DCA 2012).  Denial of charging lien affirmed when attorney’s labor produced only valueless assets thus leaving no tangible fruits for charging lie to attach to.

Gunn v. Ubbels, 37 Fla. L. Weekly D2753 (Fla. 5th DCA 2012).  Trial court reversed for awarding fees because Court only addressed Husband’s ability and made no findings as to Wife’s needs.

Domestic Violence:

Reyes v. Reyes, 37 Fla. L. Weekly D2853 (Fla. 5th DCA 2012).   Order dismissing petition to modify DV injunction affirmed as motion did not allege a change of circumstances.  Modification of DV injunction is not meant to challenge initial procurement.

Equitable Distribution:

Bikowitz v. Bikowitz, 37 Fla. L. Weekly D2707 (Fla. 2nd DCA 2012).  Trial Court’s finding that payment was made by an employer during the pendency of divorce and was non marital reversed in part.  Court must look at primary purpose of the grant (past services v. future).  Here there was no evidence presented and payment was undifferentiated and therefore properly deemed marital.  However, the trial court was reversed for including entire amount as marital.  Court should have applied a coverture fraction to the payment and set aside non-marital portion meant for future consulting.

Modification:

Hammesfahr v. Hammesfahr, 37 Fla. L. Weekly D2712 (Fla. 2nd DCA 2012).  Trial court affirmed for denying former husband’s request to reduce alimony because reduction was due to former husband being voluntarily underemployed.  The clean hands doctrine prevents a court from relieving a party from his support obligations when the decrease in financial ability to pay is brought about that party’s voluntary acts (i.e. permitting a thriving business to be closed and making no effort to find other employment or willfully divesting themselves of ability to pay.

Parenting:

Weissman v. Weissman, 37 Fla. L. Weekly D2819 (Fla. 2nd DCA 2012).  Trial court reversed for entering a temporary order depriving husband contact with children for 90 days while they attend out of state residential treatment.  Under extraordinary circumstances a trial court may enter an order temporarily modifying custody of a child without affording prior notice to opposing party.  However, such an order requires an emergency situation such as where a child is threatened with physical harm or is about to be improperly removed from the state.

Blackburn v. Blackburn, 37 Fla. L. Weekly D2745 (Fla. 2nd DCA 2012).  Provision that allows parties to modify parenting portion of final judgment based upon a “best interest of the children” standard reversed.  Trial court also reversed for failing to address holiday timesharing.

Paternity:

Shultz v. Shultz, 37 Fla. L. Weekly D2865 (Fla. 1st DCA 2012).  Trial court reversed for denying petition to disestablish paternity when Father proved through appropriate scientific evidence that he was not the Father.  A child born in intact marriage is still legitimate even if Husband proves former husband is not the father.

Procedure:

Strawcutter v. Starwcutter, 37 Fla. L. Weekly D2752 (Fla. 5th DCA 2012).  Trial court’s order disqualifying counsel because they allegedly obtained confidential information in separate civil proceeding reversed when record lacked evidence to support attorney possessed confidential information or wife had an unfair advantage because of it.

In Re Amendments to Family Rules, 37 Fla. L. Weekly S753 (Fla. 2012).  Fla.R.Fam.Pro. Rule 12.740(f) amended to eliminate 10 day period for attorney to serve objections to agreement made at a mediation where a spouse was unrepresented.

Support:

Mayfield v. Mayfield, 37 Fla. L. Weekly D2857 (Fla. 1st DCA 2012).  Trial court reversed for providing former husband credit against future child support from excess support he paid in the past.  Trial court reversed for not making child support modification retroactive to date of filing.  Trial court reversed for modifying orthodontia to 50/50 when former husband previously agreed to pay 100% of orthodontia.  Trial court affirmed for allocating health expenses 50/50 (as opposed to income ratio) when parties previously agreed to pay 50/50.

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