Family Law Case Updates – April 2014

Alimony:

Wright v. Wright, 39 Fla.L.Weekly D817 (Fla. 5^th DCA 2014).  Error to deny permanent alimony in 17 year marriage without necessary findings of fact enumerated in 61.08(2)

Taylor v. Hutz, 39 Fla.L.Weekly D721 (Fla. 1^st DCA 2014).  Settlement agreement that provided three years of non-modifiable alimony with no termination clause did not terminate on former wife’s remarriage.

Lafferty v. Lafferty, 39 Fla.L.Weekly D667 (Fla. 2^nd DCA 2014).  Amount of retroactive alimony reversed when there was no competent evidence in record to support amount.  Husband also entitled to set off for amount paid. On remand, trial court must address whether Wife is voluntary underemployed.

Attorneys’ Fees:

Puglisi v. Puglisi, 39 Fla.L.Weekly D816 (Fla. 5^th DCA 2014).  Error to award 57.105 fees against party who challenged preliminary parenting agreement parental.  Parental agreement is subject to judicially approval and can always be set aside if it does not meet child’s best interest.

Alarcon v. Alarcon, 39 Fla.L.Weekly D738 (Fla. 2^nd DCA 2014).  Appeal seeking review of order awarding entitlement  but not amount was premature.

Taylor v. Hutz, 39 Fla.L.Weekly D721 (Fla. 1^st DCA 2014).  Court erred in awarding $1000 instead of the requested $12,000 in enforcement action with prevailing party clause.  Court must start with lodestar amount and explain any adjustments.

Enforcement:

Overcash v. Foultz, 39 Fla.L.Weekly D761 (Fla. 5^th DCA 2014).  Order of contempt reversed as it was based on void order.  Trial court also failed to make finding as of ability to comply.

Equitable Distribution:

Fritz v. Frtiz, 39 Fla.L.Weekly D715 (Fla. 2^nd DCA 2014).  Parties agree the portion of a military retirement earned during marriage would be divided evenly.  Trial court reversed for entering MPO with the following additional provisions; 1) wife would receive proportionate share of post retirement cost of living adjustments, 2) pro rata share of retroactive payment husband receives if he elects to retire early, 3) pro rata share of any sum taken in lieu or in addition to husband’s disposable retirement pay.  These were not part of agreement and are not “boiler plate” paragraphs.  Under deferred distribution method the court determines what the employees benefit would be if he retired on the date of final hearing without an early retirement penalty.  The Court then multiplies the dollar amount by the percentage to which the other spouse is entitled.  This method yields a fixed dollar amount which the awarded spouse receives from each of the employee’s pension payments after retirement.

Fairchild v. Fairchild, 39 Fla.L.Weekly D712 (Fla. 5^th DCA 2014).  Parties were entitled to be reimbursed for 50% of upkeep of property.  Trial Court erred in not crediting husband with 50% of attorneys’ fees Wife spent from marital account.

Ehman v. Ehman, 39 Fla.L.Weekly D619 (Fla. 2^nd DCA 2014).  Error to award property owned by non-party corporation to Wife.  Trial Court did not have jurisdiction to transfer the property of a corporation without joinder of that entity.

Modification:

Anderson v. Anderson, 39 Fla.L.Weekly D681 (Fla. 2^nd DCA 2014).  Judgment modifying alimony reversed when it contained provision automatically adjusting alimony in the future to original amount when the party’s income returns to previous level.

Garvey v. Garvey, 39 Fla.L.Weekly D630 (Fla. 4^th DCA 2014).  Error to deny modification when former husband was diagnosed with M.S. during marriage upon a finding the deterioration in health was an “anticipated” change.  At the time of the divorce, the former husband was still working and no one expected his health to deteriorate to point he could no longer work.

Parenting:

Davis v. Lopes Davis, 39 Fla.L.Weekly D725 (Fla. 4^th DCA 2014).  Magistrate erred in denying timesharing to Husband who did not appear at final hearing and had not established a relationship with the child.  It is public policy that each minor child has frequent and continuing contact with both parents after marriage is dissolved.  The privilege of visitation with the child should never be denied either parent so long as they conduct themselves in a manner that would not adversely affect the morals or welfare of child.  A parent has a constitutionally protected ‘inherent right’ to a meaningful relationship with their child.  Restriction of visitation is disfavored unless the restriction is necessary to protect the welfare of the child.  The judgment is also deficient because it does not set forth steps husband could take to reestablish visitation.

Paternity:

Flores v. Sanchez, 39 Fla.L.Weekly D653 (Fla. 4^th DCA 2014).  Order compelling paternity test quashed when mother failed to demonstrate “good cause”.  Here, the male party was listed as “father” on child’s birth certificate.  Neither party sought to rescind voluntary acknowledgment within 60 days pursuant to 742.10.  In this event presumption may be rebutted by proof of fraud, duress, or material mistake of fact and must be in child’s best interest.

Procedure:

Fritz v. Fritz, 39 Fla.L.Weekly D715 (Fla. 2^nd DCA 2014).  An oral agreement announced in court is a fully enforceable settlement agreement so long as there is evidence of mutually assent on all essential elements.  The party seeking to enforce the agreement has the burden to establish mutual reciprocal assent to each and every term.  The party seeking to enforce the agreement has the burden to establish mutual reciprocal assent on each and every term.

Glaister v. Glaister, 39 Fla.L.Weekly D783 (Fla. 2^nd DCA 2014).  Magistrate erred in admitting evidence of change in income when only basis for modification pled was due to emancipation of child.  Magistrate further erred by substituting her own personal experience of cost of pedicures in Palm Beach County,

Glaister v. Glaister, 39 Fla.L.Weekly D783 (Fla. 2^nd DCA 2014).  Trial court erred in striking amended exceptions filed 5 days before hearing where original exceptions were timely filed.

Kozell v. Kozell, 39 Fla.L.Weekly D639 (Fla. 4^th DCA 2014).  Five additional “mailing days” does not apply to deadlines for rehearings.  Rehearing is due 10 days after the “entry” of an order, as opposed to “service”.

Relocation:

Albanese v. Albanese, 39 Fla.L.Weekly D783 (Fla. 2^nd DCA 2014).  Order granting temporary relocation reversed when no finding relocation was in child’s best interest and decision was not based on substantial competent evidence.  Lengthy opinion.

Support:

Fairchild v. Fairchild, 39 Fla.L.Weekly D712 (Fla. 5^th DCA 2014).  Trial court erred allocating responsibility of medical expenses equally.  Must be allocated in same percentage as the child support allocation.