Family Law Case Updates – August 2013

Alimony:

Moore v. Moore, 38 Fla.L.Weekly D1801 (Fla. 5^th DCA 2013).  Trial court erred in deducting voluntary contributions to health savings account and 401(k) from Wife’s income.  Trial court further erred in setting off Husband’s equalizing payment against the Wife’s bridge the gap alimony obligation.  Alimony is not a normal debt and in the absence of compelling equitable considerations, a trial court errs in allowing a set off of a debt against alimony.

Addie v. Coale, 38 Fla.L.Weekly D1592 (Fla. 4^th DCA 2013).  Award of durational alimony reversed when Wife’s expert conceded Husband had need and Wife had ability.

Attorneys’ Fees:

Duncan-Osiyemi v. Osiyemi, 38 Fla.L.Weekly D1588 (Fla 4^th DCA 2013)  Trial Court reversed for denying Wife’s request for fees when her income was $60,000 per year, plus $5,000 per month alimony plus equitable distribution of $332,000, as it creates an inequitable distribution when Husband has ability.  Notwithstanding an equal distribution of assets, a significant income disparity can justify an award of attorneys’ fees and costs.

Moya v. Moya, 38 Fla.L.Weekly D1644 (Fla. 3^rd DCA 2012)  Award of attorneys’ fees in connection with contempt hearing reversed and remanded when order failed to include findings as to hours spent, time charged and no apportionment to conduct incurred as a result of bad faith litigation.

Caryi v. Caryi, 38 Fla.L.Weekly D1661 (Fla. 5^th DCA 2013) Denial of attorneys’ fees in action to establish child support because court viewed this as a declaration judgment action as opposed to Chapter 61 proceeding, attorneys’ fees provision in agreement did not preclude an award of fees for post judgment issues, and fact wife’s parents lent her money did not establish ability.

JDC v. MEH, 38 Fla.L.Weekly D1669 9Fla. 2^nd DCA 2013)  Award of attorneys’ fees against husband as a sanction for challenging conclusions of social investigation reversed where order was no supported by detailed factual findings describing the specific acts of bad faith that resulted in unnecessary fees.

Child support:

Addie v. Coale, 38 Fla.L.Weekly D1592 (Fla. 4^th DCA 2013)  Award of child support reversed as it was not supported by competent evidence when Court based amount on Wife’s income stated in financial affidavit, Wife stated affidavit understated her true income and Wife’s expert testified Wife’s monthly income was $67,999 per month.

Domestic Violence:

Kirton v. McKissick, 38 Fla.L.Weekly D1799 (Fla. 5^th DCA 2013).  Order extending domestic violence injunction extended even though no additional acts of violence occurred.  The appropriate analysis focuses on whether the Petitioner’s professed continuing fear of future violence is reasonable under the circumstances.

Touchet v. Jones, 38 Fla.L.Weekly D1770 (Fla. 5^th DCA 2013) Final order of injunction against domestic violence requiring psych evaluation of petitioner and child reversed as Court lacked statutory authority to make such an award.

Enforcement:

Mansour v. Mansour, 38 Fla.L.Weekly D1715 (Fla 2^nd DCA 2013)  Order of contempt reversed when Husband did not receive notice and no evidence to support Husband could pay $20,000 in four weeks.

Equitable Distribution:

McKee v. Mick, 38 Fla.L.Weekly D1795 (Fla 1^st DCA 2013)  Trial Court reversed for classifying burial plot given to Wife and added Husband to deed as non-marital.  Trial Court reversed for classifying auto given to Husband by father as marital asset.

Parenting:

Jeffers v. Mcleary, 38 Fla.L.Weekly D1629 (Fla 4^th DCA 2013)  Final judgment of paternity with timesharing schedule reversed when Father missed final hearing, filed a motion for rehearing which was denied without a hearing.  Because best interest of child was at issue, trial court should consider Father’s testimony.

Procedure:

Tobin v. Tobin, 38 Fla.L.Weekly D1589 (Fla. 4^th DCA 2013)  Trial Court erred striking Wife’s pleadings as a sanction for discovery violations without offering Wife requested evidentiary hearing to offer mitigating circumstances.

Pullis v. Pullis, 38 Fla.L.Weekly D1674 (Fla. 3^rd DCA 2013) Denial of Wife’s motion or rehearing reversed when Wife did not receive notice of hearing and error existed on face of order.

Bultler v. Heill, 38 Fla.L.Weekly D1752 (Fla. 1^st DCA 2013)  Trial Court’s judgment which was inconsistent with oral pronouncement reversed.

Relocation:

Shiba v. Gabay, 38 Fla.L.Weekly D1690 (Fla 4^th DCA 2013)  Trial Court’s order requiring return of child affirmed.  Wife’s argument that Court did not hear all evidence and therefore did not make a decision upon best interests of children failed when Wife failed to timely secure her witnesses.