Family Law Case Updates – May 2014

Domestic Violence:

McCord v. McCord, 39 Fla.L.Weekly D1001 (Fla. 1^st DCA 2014).  Trial court erred in entering an injunction against repeat violence when it was based on motion to extend no contact order. No contact order contained no factional findings and is therefore not an injunction.

Nettles v. Hoyos, 39 Fla.L.Weekly D961 (Fla. 5^th DCA 2014).  Trial court erred in granting order prohibiting all discovery in stalking injunction matter. Trial court must balance the need to expedite hearing and the need to ensure due process is not violated.  Trial court has discretion to limit time frame and nature of discovery on a case by case basis.  However, court cannot prohibit party from conducting any discovery.

Kunkel v. Stanford, 39 Fla.L.Weekly D940) (Fla. 4^th DCA 2014).  Injunction against domestic violence reversed when no findings or evidence petitioner is victim of domestic violence or is in imminent danger of being a victim of domestic violence.

Equitable Distribution:

Valentine v. Valentine, 39 Fla.L.Weekly D878 (Fla. 2^nd DCA 2014).  Final Judgment awarding husband 50% of any proceeds from the book the wife may publish based on a journal she kept during the marriage is really just a reservation to consider the matter if the book is ever published.

Paternity:

Alls v. DOR, 39 Fla.L.Weekly D962 (Fla. 5^th DCA 2014).  Trial court reversed for ordering paternity test when final judgment naming party as father had not been vacated.  Here judgment entered against Alls due to default.  Alls sought to set aside.  Court must conduct Privette hearing before ordering paternity testing.

Modification:

Wilks v. Cronin, 39 Fla.L.Weekly D1014 (Fla. 5^th DCA 2014).  Order granting former wife’s motion to dismiss modification reversed.  Voluntariness is not an element for modifying time sharing and court failed to consider best interests of child.

Garvey v. Garvey, 39 Fla.L.Weekly D994 (Fla. 4^th DCA 2014).  Trial court reversed for denying modification.  Husband’s deterioration of health to point he could not work is not anticipated change when former when former husband had M.S. at time of divorce.

Masters v. Cano, 39 Fla.L.Weekly D961 (Fla. 3^rd DCA 2014).  Trial court reversed in ordering children to attend public school when that relief was not requested in pleadings.

D.O.R. v. Garmon, 39 Fla.L.Weekly D932 (Fla. 5^th DCA 2014).  Error to reduce child support when former husband failed to prove a substantial change of circumstances.

Valenta v. Valenta, 39 Fla.L.Weekly D897 (Fla. 2^nd DCA 2014).  Error not to alleviate former husband from obligation to pay 50% of the child’s private school when former wife agreed to pay for 100% of tuition at trial.

Sanford v. Davis, 39 Fla.L.Weekly D880 (Fla. 1^st DCA 2014).  Order modifying support reversed when no pleading sought modification of support.

Parenting:

Lifleur v. Webster, 39 Fla.L.Weekly D957 (Fla. 3^rd DCA 2014).  Order denying Mother’s Motion for Return of Custody from third party reversed.  Father was sentenced to 12 years in jail for molesting a child.  Father had custody due to mother’s history of mental illness. In these circumstances, trial court could not place child with non-party without present evidence the Mother was be detrimental to child.

Procedure:

Horowitz v. Horowitz, 39 Fla.L.Weekly D987 (Fla. 4^th DCA 2014).  Writ of prohibition attempting to prevent trial court from proceeding with modification trial when final judgment under appeal denied.  Trial court has jurisdiction to conduct hearing on modification but may not enter a final judgment disposing of modification until appeal is final and Mandate issues.

Rivero v. Leal, 39 Fla.L.Weekly D968 (Fla. 2^nd DCA 2014).  Litigant cautioned for pursuing meritless litigation.

Baricchi v. Barry, 39 Fla.L.Weekly D821 (Fla. 2^nd DCA 2014).  Final Judgment reversed when amended petition which sought additional relief was not served on defaulted party.

UCCJEA:

Billie v. Stier, 39 Fla.L.Weekly D850 (Fla. 3^rd DCA 2014).  Writ of prohibition denied when paternity case filed in Miccosukee Indian Tribe court.  Indian order would have been recognized if it conformed with UCCJEA.  Here, they did not conform with UCCJEA because: 1) did not provide notice, 2) did not provide party opportunity to be heard, 3) prohibited party’s attorney from participating in hearing, 4) conducted hearing in Miccosukee language and did not provide an interpreter, and 5) took 20 minutes of testimony, provided party 2 minute summary.