Family Law Case Updates – May 2013

Agreements:

Rey v. Rey, 38 Fla.L.Weekly D1107 (Fla. 3^rd DCA 2012).  Final Judgment denying Wife’s motion to set aside MSA affirmed.  Casto does not govern agreements reached in the midst of litigation.  When party seeks to side aside an agreement based on fraud and misrepresentation, but in doing so pleads the grounds conclusorily and without specificity, the trial court should limit financial discovery until validity of agreement is determined.

Alimony:

Lilly v. Lilly, 38 Fla.L.Weekly D1158 (Fla. 5^th DCA 2013).  Post judgment order converting rehabilitative alimony to permanent alimony reversed when former wife failed to make a reasonable effort to rehabilitate herself.

Taylor v. Taylor, 38 Fla.L.Weekly D891 (Fla. 4^th DCA 2013).  Award of lump sum alimony reversed.  First judgment awarding lump sum alimony reversed because Husband was not provided notice of final hearing.  At the remand trial, former wife had already remarried which eliminated her need for alimony.  Lump sum alimony is not a type of alimony but a means to accomplish the ends of permanent or rehabilitative alimony.  The lump sum award may be comprised of real property.  For example, a parties’ one-half interest in a marital home.  Monetary obligation vests immediately, is non-modifiable and does not terminate when payee remarries or payor dies. A lump sum award requires proof of special circumstances (i.e. threats and history of non-payment).

Appeals:

Nunes v. Nunes, 38 Fla.L.Weekly D1027 (Fla. 4^th DCA 2013).  Trial court affirmed for holding Wife in contempt for failure to comply with the parenting plan.  Wife’s argument that she was unable to participate in hearing rejected when Wife failed to notify Court or ask for a continuance or raise issue by rehearing.  Fact the order does not describe non-compliance, or include findings regarding best interest of child was not fatal as no transcript presented.  Appellate court will not assume trial court committed reversible error in absence of a transcript.

Child Support:

DOR o/b/o Mash v. Ingram, 38 Fla.L.Weekly D1046 (Fla. 1^st DCA 2013).  Order crediting Father with $352 credit towards retroactive child support for “in kind contributions” reversed because child support is a “creature of statute”.  Calculations, including credits, are governed strictly by statute.  Tribunal has no inherent authority to fashion equitable remedy.

DOR v. SJW,  38 Fla.L.Weekly D947 (Fla. 2^nd DCA 2013).  Trial court reversed for deducting child support paid for another child from another relationship from father’s gross income for purposes of calculating child support when father was not actually paying support for that child.

Price v. Price, 38 Fla.L.Weekly D940 (Fla. 5^th DCA 2013).  Trial court’s order denying father’s motion to terminate child support reversed in part when father agreed to pay child support so long as child was in college on a full time basis.  There was no evidence the child was enrolled during the Fall 2008 semester.  Remanded to require mother to reimburse child support paid by father for that period.

Domestic Violence:

Goudy v. Duqutte, 38 Fla.L.Weekly D1009 (Fla. 2^nd DCA 2013).  Repeat violence injunction based on stalking between a dance team coach and a team participant’s father, based on stalking, reversed.  There may have been one incident of stalking, but the Respondent had a legitimate purpose for going to team events, his daughter’s participation.  The fact respondent stared the coach down and “made his presence known” is not sufficient to cause a reasonable person emotional distress.  Repeat violence is defined as “two incidents of violence or stalking committed by the respondent, one of which must have been within 6 months of the filing of the petition, which are directed against the petitioner or petitioner’s immediate family member.  A person is guilty of “stalking” if he willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person.  And “harass” is defined as to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.  A “course of conduct” is a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. In determining if an incident causes substantial emotional distress, courts use a reasonable person standard, not a subjective standard.

Baker v. Baker, 38 Fla.L.Weekly D1007 (Fla. 2^nd DCA 2013).  Trial court reversed for denying motion to dissolve injunction.  There was a substantial change in circumstances.  Respondent was sentenced to 30 years and fact he had an active injunction was preventing him from being transferred to a penal institution “closer to home”.

Misc.:

Thompson v. Watts, 38 Fla.L.Weekly D999 (Fla. 1^st DCA 2013).  Trial court’s interpretation of ambiguous settlement provision reversed.  De novo standard of review.  Discussion of parole evidence.

Modification:

Pomerance v. Pomerance, 38 Fla.L.Weekly D1024 (Fla. 4^th DCA 2013).  Husband challenged entry of final judgment that adopted parties’ settlement agreement due to a change of circumstances since signing agreement.  Judgment affirmed. Appropriate remedy was to file a supplemental petition for modification.

Parenting:

Weissman v. Weissman, 38 Fla.L.Weekly D1003 (Fla. 2^nd DCA 2013).  Procedurally uncommon post judgment temporary order limiting former husband’s decision making for children and limited his access reversed in part.  There was no evidence to justify barring former husband from medical decisions and order failed to provide guidance as to how and when significant restrictions will end.

Paternity:

A.A.B. v. B.O.C., 38 Fla.L.Weekly D1059 (Fla. 2^nd DCA 2013).  Order giving biological father parental rights reversed when biological father donated his sperm in an outside the laboratory, non-traditional kind of way, which impregnated his sister’s lesbian partner.  Court found oral agreement sufficient to invoke provisions of artificial insemination statute.  F.S. 742.14.

Procedure:

Rodriguez v. Reyes, 38 Fla.L.Weekly D974 (Fla. 3^rd DCA 2013).  Trial court erred in vacating magistrate’s report after re-weighing the evidence.  Witness credibility, like all disputed issues of fact, is a determination left to the finder of fact.