Stephens’ Squibs – December 2013

Appeals:

Idumwonyi v. Belizaire, 38 Fla.L.Weekly D2589 (Fla. 2st DCA 2013)  Appellate Court could not review appealable non-final order on child support on Father’s claim he did not receive timesharing because Trial Court neither granted nor denied his request.

Domestic Violence:

Stone v. Stone, 38 Fla.L.Weekly D2607 (Fla. 4th DCA 2013)  Injunction against domestic violence reversed when not supported by evidence Petitioner was a victim of domestic violence or was in fear of becoming a victim of domestic violence.

Weisberg v. Albert, 38 Fla.L.Weekly D2170 (Fla. 4th DCA 2013).  Threat to son in law that “If you ever try that again, you’ll be dead” without any act of violence insufficient to support entry of DV injunction.

Arnold v. Santana, 38 Fla.L.Weekly D2098 (Fla. 1st DCA 2013).  Injunction against DV reversed when not supported by competent evidence.  Verbal abuse, breaking down door, and a text that Respondent “was watching” Petitioner was insufficient.  An injunction against DV requires malicious harassment that consists at the very least of some threat of imminent violence which excludes mere uncivil behavior that causes distress and annoyance.  The statutory definition of ‘domestic violence’ requires some showing of violence or a threat of violence.  General harassment does not suffice.

Barbieri v. Muller, 38 Fla.L.Weekly D2093 (Fla. 5th DCA 2013).  Order dissolving DV injunction reversed when court reweighed evidence supporting initial injunction rather than finding a change in circumstances since injunction was issued.

Kirton v. McKissick, — So. 3d –, 38 Fla.L.Weekly D1799 (Fla. 5th 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, — So. 3d –, 38 Fla.L.Weekly D1770 (Fla. 5th 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.

Brillhart v. Brillhart, 116 So.3d 617 (Fla. 2nd DCA 2013).  Domestic violence injunction in favor of daughter against Mother reversed when it was based on hearsay evidence and an unqualified expert.

Goudy v. Duqutte, 112 So.3d 716 (Fla. 2nd 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, 35 So.3d 76 (Fla. 2nd 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”.

Rudel v. Rudel, 111 So.3d 285 (Fla. 4th 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, 111 So.3d 231 (Fla. 2nd 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, 113 So.3d 993 (Fla. 5th 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).

Bacchus v. Bacchus, 108 So.3d 712 (Fla. 5th DCA 2013).  Order extending domestic violence reversed when it was based upon evidence Husband communicated with Wife through third parties, as that is insufficient.  However, matter remanded as Wife never had opportunity for full evidentiary hearing to determine if permanent injunction is appropriate.

Enforcement:

Williams v. Lutrario, 38 Fla.L.Weekly D2544 (Fla. 4th DCA 2013)  Trial Court affirmed for denying contempt on summer timesharing which provided after child starts school, when child had not started school yet.  Trial Court reversed when allowing tax exemption when ledger demonstrated party was not current with support.

Equitable Distribution:

Jordan v. Jordan, 38 Fla.L.Weekly D2506 (Fla. 4th DCA 2013)  Trial Court abused discretion in adopting Wife’s proposed equitable distribution plan when not supported by competent evidence.  Trial Court affirmed for classifying proceeds from a building originally non-marital but improved and sold during marriage with proceed deposited into marital company as a marital asset.

Madson v. Madson, 38 Fla.L.Weekly D2588 (Fla. 1st DCA 2013)  Error to award stock as marital when it was gifted to party by son, never co-mingled, never added shares or reinvested.

Naylor v. Naylor, 38 Fla.L.Weekly D2639 (Fla. 1st DCA 2013)  Trial Court reversed for valuing Husband’s tools at $20,000 based on Wife’s financial affidavit when there was contradictory evidence.

Jurisdiction

Pulkkinen v. Pulkkinen, 38 Fla.L.Weekly D2459 (Fla 1st DCA 2013)  Writ of prohibition granted to prevent Florida Court from modifying foreign judgment over non-resident.

Life Insurance:

Williams v. Lutrario, 38 Fla.L.Weekly D2544 (Fla. 4th DCA 2013)  Error to require life insurance without necessary findings of fact and in an amount that exceeds obligation.

Modification:

Driggers v. Driggers, 38 Fla.L.Weekly D2489 (Fla. 2nd DCA 2013)  Trial Court abused discretion when it denied Former Husband’s petition to modify alimony when there was a 40% reduction in business and Former Husband had little prospects.  Order of contempt reversed as well.

Cole v. Cole, 38 Fla.L.Weekly D2660 (Fla. 3rd DCA 2013)  Order awarding Mother sole custody for one month reversed when Father was precluded from giving evidence at the hearing.

Procedure:

Inglis v. Casselberry, 38 Fla.L.Weekly D2480 (Fla. 2nd DCA 2013)  Trial Court affirmed for imposing writs of garnishment over trusts and that Court had jurisdiction over trustee as a party when trustee voluntarily submitted to Court’s jurisdiction.

Temporary Relief:

Hoffman v. Hoffman, 38 Fla.L.Weekly D2541 (Fla. 2nd DCA 2013)  Award of 80% of Husband’s net income as alimony and requiring him to pay all of Wife’s temporary attorneys’ fees an abuse of discretion.  While temporary awards are among the areas where trial courts have the broadest discretion, correct standard by which temporary awards are assessed by balancing need v. ability.

Trusts:

Berlinger v. Casselberry, 38 Fla.L.Weekly D2482 (Fla 2nd DCA 2013)  Trial Court affirmed for imposing write of garnishment over discretionary trust for unpaid alimony.  F.S. 736.0503(2) and (3) preclude spendthrift provisions from protection beneficiaries with court ordered support obligation.

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