Family Law Case Updates – April 2013

Agreements:

Conway v. Conway, 38 Fla.L.Weekly D723 (Fla. 1^st DCA 213).   Trial Court affirmed for relying on parole evidence to resolve ambiguity as to whether wife is entitled to 30% of husband’s net or gross bonus.  Because wife accepted net for years, wife accepted net payment.  Trial Court reversed for failing to award pre-judgment interest on alimony arrearage.

Appeals:

Ingram v. Ingram, 38 Fla.L.Weekly D856 (Fla. 4^th DCA 2013).  Judgment affirmed because no error preserved.  However, limitation of no toy guns for child overbroad as there was no evidence child should not have a pop gun, water pistol or similar childhood toy despite the unfortunate BB gun accident with his Father.

Bak v. Bak, 38 Fla.L.Weekly D743 (Fla. 4^th DCA 2013).  Appeal dismissed at untimely.  Motion for rehearing on non-final order does not toll time to appeal.

Mann v. Yeatts, 38 Fla.L.Weekly D765 (Fla. 5^th DCA 2013).  Party failed to preserve errors during circuit court proceedings.

Attorneys’ Fees:

Weaver v. Corey, 38 Fla.L.Weekly D874 (Fla. 2^nd DCA 2013).  Award of expert’s expense reversed when expert fee was not for deposition or preparing a court ordered report.  Further, CPA was not needed for this exercise.  See In Re: Amendments to Uniform Guidelines for Taxation of Costs, 915 So.2d 612 (Fla. 2005).

Fernandez v. Wright, 38 Fla.L.Weekly D785 (Fla. 2^nd DCA 2013).  Award of $4,811.94 in attorneys’ fees incurred in domestic violence injunction matter reversed.

Kunsman v. Wall, 38 Fla.L.Weekly D813 (Fla. 4^th DCA 2013).  Award of attorneys’ fees reversed when no statutory basis pled.

Domestic Violence:

Rudel v. Rudel, 38 Fla.L.Weekly D858 (Fla. 4^th DCA 2013).  Trial court reversed for summarily dismissing temporary domestic violence injunction because Wife lured Husband to jurisdiction.  Remanded to determine if Court had personal jurisdiction over Husband and if so, whether injunction warranted.

McNulty v. Douglas, 38 Fla.L.Weekly D795 (Fla. 2^nd DCA 2013).  Injunction against dating violence reversed and remanded because respondent not afforded “full hearing”.  Parties must have an opportunity to prove or disprove allegations made in complaint.  All witnesses should be worn, each party shall be permitted to call witnesses with relevant information and cross-examination should be permitted.

Curtis v. Curtis, 38 Fla.L.Weekly D829 (Fla. 5^th DCA 2013).  Error to deny injunction without hearing when sufficient basis pled based on protection offered by no contact order in criminal case.  Wife was not a party in criminal case and 741.30 allows additional awards (i.e. exclusive use and possession)

Enforcement:

McDonald v. McDonald, 38 Fla.L.Weekly D745 (Fla. 4^th DCA 2013).  Trial Court reversed for misinterpreting contract.  Contempt reversed because no finding violation was willful.

Fernandez v. Wright, 38 Fla.L.Weekly D785 (Fla. 2^nd DCA 2013).  Trial Court remanded for modifying part of parenting plan because of mother’s non-compliance to reflect modification is temporary.

Equitable Distribution:

Capote v. Capote, 38 Fla.L.Weekly D683 (Fla. 2^nd DCA 2013).  Notion that dry cleaning business was premarital and owned 50% with husband’s father rejected because there were no records showing husband’s father’s interest, and business value lost its separate non marital character because the husband consistently used the business account to fund personal expenses.  Trial Court affirmed for accepting wife’s value of business and adding $80,000 for good will found on balance sheet.  Trial Court affirmed for charging depleted insurance proceeds to husband when he deposited into business account and spent it without wife’s permission or knowledge.  Trial Court affirmed for failing to distribute credit card debt because at time of filing, balances were minimal.

Kunsman v. Wall, 38 Fla.L.Weekly D813 (Fla. 4^th DCA 2013).  Trial court affirmed for not charging funds depleted by Husband for child’s criminal attorney as this was a legitimate marital expense.  However, court reversed for not charging depleted funds used for adult child’s education and funds that had no evidence as to how they were spent.

Modification:

Winthrop v. Castellano, 38 Fla.L.Weekly D873 (Fla. 5^th DCA 2013).  Trial court erred modifying timesharing to therapeutic when only issue noticed for hearing was Thanksgiving timesharing.

Centeno v. Centeno, 38 Fla.L.Weekly D755 (Fla. 2^nd DCA 2013).   Trial Court reversed for denying former husband’s request for modification even when MSA provided “since the amount of alimony is insufficient to meet the needs of wife the amount of alimony shall be non-modifiable.”  2^nd DCA concluded did not clearly and expressly limit modifications.

Procedure:

Rudel v. Rudel, 38 Fla.L.Weekly D858 (Fla. 4^th DCA 2013).  Trial court affirmed for properly dismissing divorce for lack of subject matter jurisdiction where parties were from Germany, Wife was in Florida on a non-immigrant tourist visa and had not established permanent residency.  Fact intensive analysis.

Chanin v. Feigenheimer, 38 Fla.L.Weekly D843 (Fla. 4^th DCA 2013).  Trial court reversed for dismissing action by Former Wife who sought modification in addition to various tort counts of fraud, deceptive and unfair trade practices and negligence against Former Husband’s business and other third party defendants connected to the Former Husband.  Proper remedy would be to transfer to civil division.

In Re:  Amendments to Rules of Judicial Administration, 38 Fla.L.Weekly S220 (Fla. 2013)  Email rule amended to clarify if more than one method of service used, computation of time is based on the method of service that provides shortest response time.  Also allows attorneys to stipulate to other means of service.

Martinez v. Cramer, 38 Fla.L.Weekly D744, (Fla. 4^th DCA 2013).  Writ of prohibition granted to recuse trial judge who ejected petitioner from courtroom based on a “perceived” insult to the judge and court struck her testimony and made negative comments about her demeanor.

Parnell v. Parnell, 38 Fla.L.Weekly D829 (Fla. 5^th DCA 2013).  Trial Court reversed for entering final judgment of modification two months after judge recused himself.

Relocation:

Rivero v. Rivero, 38 Fla.L.Weekly D811 (Fla. 4^th DCA 2013).  Temporary order allowing relocation reversed as it was entered before evidentiary hearing.  Failure to file verified pleading was not jurisdictional bar as filing relates back to date unverified pleading filed.

Support:

Weaver v. Corey, 38 Fla.L.Weekly D874 (Fla. 2^nd DCA 2013).  Trial court affirmed for awarding $41,603 to son and former wife as costs of college when husband agreed to use his best efforts to pay college and court found Husband’s best efforts were not used.  Husband cannot now claim Wife did not use her best efforts as that was not pled as an affirmative defense.

Bazzel v. Bazzel, 38 Fla.L.Weekly D762 (Fla. 2^nd DCA 2013).  Trial Court’s finding of husband’s income revised as it is not supported by competent evidence.  Further, Trial Court erred by failing to fact number of overnights in child support calculation.