Stephens’ Squibs – November 2013

November-2013

Agreements:

Kearney v. Kearney, 38 Fla.L.Weekly D2350 (Fla. 1st DCA 2013).  Trial Court affirmed for invalidating unfair agreement and inaccurate disclosure when Wife did not have proximate knowledge.  Wife did not ratify agreement by accepting payments because monies were marital and Wife had a right to possession of funds.

Appeals:

Lovelace v. Lovelace, 38 Fla.L.Weekly D2315 (Fla. 1st DCA 2013).  Notice of appeal filed 34 days after non-final order granting motion to relocate minor children dismissed as untimely.  Motion for hearing on a non-final order does not toll time for appeal.

Attorney Fees:

Duncan v. Duncan, 38 Fla.L.Weekly D2205, (Fla. 4th DCA 2013).  Trial Court reversed for awarding $50,000 in attorneys’ fees and $10,000 for accounting fees when the trial court failed to make findings of Husband’s disputed income.  Even if Wife was right, Husband lacked ability to make payment in 15 days.

Rowe v. Rodriguez-Schmidt, 38 Fla.L.Weekly D2326 (Fla. 2nd DCA 2013).  Order awarding fees with findings.  Wife had need and Husband had limited ability to pay reversed because Trial Court failed to make specific findings of fact to support the award.

Enforcement:

Carmenates v. Hernandez, 38 Fla.L.Weekly D2395 (Fla. 3rd DCA 2013).  Trial Court reversed for requiring party to return vehicle he did not own to other party.

Fuller v. Fuller, 38 Fla.L.Weekly D2454 (Fla. 2nd DCA 2013).  Findings that Former Husband hid income reversed when only evidence was Husband has been capable of paying purge amount when previously held in contempt.

Equitable Distribution:

Defanti v. Russell, 38 Fla.L.Weekly D2216 (Fla. 4th DCA 2013).  Order on summary judgment granting interim equitable distribution reversed when based on parties’ stipulation as opposed to showing of good cause (i.e. extraordinary circumstances).

Imputation:

Marlowe v. Marlowe, 38 Fla.L.Weekly D2271 (Fla. 1st DCA 2013).  Final Judgment imputing minimum wage and 40 hour work week reversed when Trial Court failed to make any findings of fact to support decision.

Life Insurance:

Hirsch v. Hirsch, 38 Fla.L.Weekly D2241 (Fla. 2nd DCA 2013).  Order requiring military Husband to designate Wife as beneficiary to his life insurance policy remanded as it was not clear Court had subject matter jurisdiction over policy.  Federal law bestows upon service member absolute right to designate beneficiary.  Argument made for first time on appeal not waived as it involved subject matter jurisdiction.

Modification:

Brown v. Brown, 38 Fla.L.Weekly D2247 (Fla. 1st DCA 2013).  Judgment modifying timesharing reversed when based on Former Wife’s lack of objection to additional timesharing as this did not constitute substantial change of circumstances.

Worthington v. Worthington, 38 Fla.L.Weekly D2253 (Fla. 2nd DCA 2013). Order modifying timesharing reversed as Court not authorized to award relief not requested in the pleadings.

Name Change:

Wilson v. Smith, 38 Fla.L.Weekly D2328 (Fla. 2nd DCA 2013).  Trial Court reversed for changing name of child based on wrong legal standard.  Court should only change name of minor child over one parent’s objection where evidence affirmatively shows such change is necessary for the welfare of the child.

Paternity:

DMT v. TMH, 38 Fla.L.Weekly S812 (Fla. 2013).  Section 743.1312 declared unconstitutional as it violates equal protection clause by denying same sex couples the statutory protection against automatic relinquishments of parental rights it affords to heterosexual couples.

Pena v. Diaz, 38 Fla.L.Weekly D2338 (Fla. 5th DCA 2013).  Concerning opinion on another case on child born into intact marriage where biological Father is not Wife’s Husband.  Husband and Wife had dissolution of marriage action pending at time of birth and dismissed after birth.  Because divorce was later dismissed, it was as if it never happened.  Follows Lohman and Privette.

Procedure:

Wade v. Wade, 38 Fla.L.Weekly D222 (Fla. 3rd DCA 2013).  Sua sponte order requiring Former Wife to undergo psych evaluation overturned when mental state not in controversy and finding of good cause was conclusory.  “In controversy” and “good cause” requirements are not met by mere conclusory allegations of the pleadings, nor by the mere relevance to case, but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.  Lengthy discussion.

Yaris v. Hartley, 38 Fla.L.Weekly D2365 (Fla. 4th DCA 2013).  Trial Court reversed for denying continuance on modification trial when party’s sister was dying, party drove out of state to be with her and other party would not have been prejudiced.

Cole v. Cole, 38 Fla.L.Weekly D2376 (Fla. 3rd DCA 2013).  Error to modify parental responsibility without allowing party to testify.

Sazonov v. Karpovia, 38 Fla.L.Weekly D2378 (Fla. 3rd DCA 2013).  Order denying motion to transfer paternity case for forum non conveniens reversed.  When both parties are from foreign country, plaintiff not entitled to presumption in forum choice.

Ballard v. Campbell, 38 Fla.L.Weekly D2431 (Fla. 1st DCA 2013).  Final judgment reversed entered days before judge’s retirement with internal inconsistencies and contradictory allocations.

Support:

Marlowe v. Marlowe, 38 Fla.L.Weekly D2271 (Fla. 1st DCA 2013).  Error reducing Husband’s income and increasing Wife’s income based on alimony not being paid.  No error to order support terminates at age 18 instead of high school graduation.

Supportive Relationships:

Murphy v. Murphy, 38 Fla.L.Weekly D2283 (Fla. 3rd DCA 2013).  Trial Court affirmed for reducing alimony obligation from $4,200 to $3,500 on supportive relationship when Former Wife was living with her boyfriend and not charging him rent.  Former Wife’s argument that 61.14(1)(b) requires some form of economic support provided to recipient spouse from third party cohabitant rejected.  Lengthy opinion on supportive relations.

UCCJEA:

Barnes v. Barnes, 38 Fla.L.Weekly D2255 (Fla. 4th DCA 2013).  Order finding Colorado home state reversed when children resided in Florida for six months preceding filing of petition.

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