Family Law Case Updates – February 2014

Alimony:

Motie v. Motie, 39 FLW D410 (Fla. 5^th DCA 2014).  Trial court abused discretion in awarding durational alimony as opposed to permanent in marriage exceeding 17 years.  Neither age nor a spouse’s ability to work will alone rebut presumption.  Retroactive alimony must be based on need and ability and can be retroactive to time parties’ did not reside together.

Appeals:

Rushing v. Rushing, 39 FLW D382 (Fla. 1^st DCA 2014).  Appeal dismissed as premature as order under appeal contemplated further judicial action to resolve claim.

Shadwick v. Shadwick, 39 FLW D374 (Fla. 2^nd DCA 2014).  Appeal awarding 50% of attorneys’ fees under 57.105 premature as amount has not been determined.

Attorneys’ Fees:

Higdon v. Higdon, 39 FLW D361 (Fla. 5^th DCA 1014).  Order enforcing charging lien premature when entered before final hearing.  Court erred in not holding a hearing on parties’ objection.

Child Support:

DOR v. Verrette, 39 FLW D257, (Fla. 2^nd DCA 2014).  Trial court erred basing child support on written, signed and notarized parenting plan because it was not authorized by court order.

DOR v. Walker, 39 FLW D309 (Fla. 1^st DCA 2014).  Trial court erred deducting child support payment for another child from gross income when support was not actually paid.

LaFountain v. LaFountain, 39 FLW D319 (Fla. 2^nd DCA 2014).  Trial court erred in including day care payments in child support calculation when expense not being incurred.

Domestic Violence:

Schutt v. Alfred, 39 FLW D239 (Fla. 3^rd DCA 2014).  Trial court erred entering injunction against dating violence when parties did not date within six months of entry of injunction.

Enforcement:

Byrne v. Byrne, 39 FLW D236 (Fla. 4^th DCA 2014).  Trial court erred holding Former Wife in contempt for failing to make mortgage payments because that payment related to property division, not support.  Former husband also lacked standing to request a receiver to collect rents in order to pay mortgage.

Equitable Distribution:

Broadway v. Broadway, 39 FLW D417 (Fla. 1^st DCA 2014).  Trial court erred finding 25 foot pull-behind camper purchased after separation but before filing was a non-marital asset.

Vonnoh v. Vonnoh, 39 FLW D 417 (Fla. 1^st DCA 2014).  Final judgment requiring parties to elect 50% joint survivor annuity with wife as beneficiary reversed when no evidence that option was available.

Wagner v. Wagner, 39 FLW D372 (Fla. 2^nd DCA 2014).  Trial court erred in failing to distribute credit card debt incurred by the husband for adult child’s college education shortly before wife filed for divorce.  No evidence of marital waste.

Jurisdiction:

Padilla v. Vindel, 39 FLW D327 (Fla. 4^th DCA 20140).  Trial court reversed for dismissing dissolution of marriage for lack of jurisdiction when record demonstrated wife resided in Florida six months prior to filing.

Vyfuinkel v. Vyfuinkel, 39 FLW D254 (Fla. 5^th DCA 2014).  It is duty of trial court to prevent fanciful, inconsistent and absurd interpretations of plain language of an agreement.

Cavallaro v. Cavallaro, 39 FLW D353 (Fla. 3^rd DCA 2014).  Trial court reversed for holding attorney in contempt of court who was not a party nor made an appearance in case.

Modification:

J.L.B. v. S.J.B., 39 FLW D360 (Fla. 5^th DCA 2014).  Trial court affirmed for calculating support for 3 children instead of 4 when 4th child was adopted and receiving governmental stipend directed to custodial parent.   Custodial parent not entitled to retroactive support and other parent not entitled to claim child as a deduction when it was not requested in the pleadings.

deLabry v. Sales, 39 FLW D283 (Fla. 4^th DCA 2014).  Order modifying child support affirmed.  A trial court has inherent authority to modify child support regardless of an agreement between the parties.

Parenting:

Matura v. Matura, 39 FLW D255 (Fla. 5^th DCA 2014).  Judgment allowing timesharing with father in Jamaica when he was guilty of domestic violence of children and who threatened to kidnap children reversed.  Monetary bond was not sufficient to ensure return of children from non Hague country.

Paternity:

C.G. v. J.R., 39 FLW D248 (Fla. 2^nd DCA 2014).  Trial court affirmed for vacating paternity and timesharing agreement between biological father and mother concerning child born into intact marriage with person other than biological father, as dual paternity is a “legal fiction”.  Dismissal of biological father’s paternity action affirmed.

Procedure:

Behnam v. Mamghanizadeh, 39 FLW D424 (Fla. 1^st DCA 2014).  Trial court erred treating a motion to dismiss as motion for summary judgment.

Leming v. Jenkins, 39 FLW D408 (Fla. 5^th DCA 2014).  Order denying motion to transfer based on inconvenient forum affirmed as trial court did not abuse its discretion.