Stephens’ Squibs – June 2014

Alimony:

Fichtel v. Fichtel, 39 Fla.L.Weekly D1043 (Fla. 4th DCA 2014).  Trial court affirmed for awarding 15 years of durational alimony in 18 year marriage.

Aquilina v. Aquilina, 39 Fla.L.Weekly D1033 (Fla. 4th DCA 2014).  Trial court’s finding it was anticipated that former husband would satisfy his debt was stricken from judgment as it would have prohibited payor wife from seeking a downward modification upon expense being eliminated.

Appeals:

Nathanson v. Rishyke, 39 Fla.L.Weekly D1180 (Fla. 4th DCA 2014).  Order of contempt reserving on issue of sanctions was not a final order subject to appeal.

Attorney’s Fees:

Mitchell v. Mitchell, 39 Fla.L.Weekly D1296 (Fla. 1st DCA 2014).  Trial court’s order of fees remanded where no findings as to number of hours expended, rate or reasonableness.

Lutz v. Rutherford, 39 FW D1200 (Fla. 2nd DCA 2014).  Judgment reserving jurisdiction “to award attorneys’ fees that may be applicable” was sufficient to preserve jurisdiction to enter charging lien.

Fichtel v. Fichtel, 39 Fla.L.Weekly D1043 (Fla. 4th DCA 2014).  Trial court’s order awarding wife 50% of her attorney’s fees when there were no findings of explanation and husband had disparate income.

Domestic Violence:

Alderman v. Thomas, 39 Fla.L.Weekly D1320 (Fla. 2nd DCA 2014).  Injunction against domestic violence dating reversed when not supported by imminent threat of domestic violence.

Barfield v. Kay, 39 Fla.L.Weekly D1254 (Fla. 5th DCA 2014).  Error to deny motion to vacate judgment without hearing.

Baker v. Pucket, 39 Fla.L.Weekly D1175 (Fla. 4th DCA 2014).  Error to deny motion to vacate injunction without a hearing.  Respondent was incarcerated and injunction prohibited her from participating in work release program.

Sanchez v. Marin, 39 Fla.L.Weekly D1063 (Fla. 3rd DCA 2014).  Domestic violence injunction based on allegations made at hearing and not in petition reversed as Respondent was not put on notice of allegations.

Enforcement:

Bunn v. White, 39 Fla.L.Weekly D1268 (Fla. 4th DCA 2014).  Error to require Wife to pay debt assigned to her in equitable distribution before requiring husband to reimburse when agreement did not have that as a condition precedent.

Baratta v. Costa-Martinez, 39 Fla.L.Weekly D1071 (Fla. 3rd DCA 2014).  Order of contempt with $20,000 purge affirmed when based on adverse inference to father’s ability to pay.  Order requiring husband’s attorney to disgorge unearned fees affirmed.

Exclusive Use and Possession:

Gonzalez Del Real v. Gonzalez Del Real, 39 Fla.L.Weekly D1091 (Fla. 2nd DCA 2014).  Judgment awarding exclusive use and possession of residence until minor child emancipates remanded for court to address if Wife receives credit for paying taxes, insurance and maintenance.

Imputation:

Adelberg v. Adelberg, 39 Fla.L.Weekly D1108 (Fla. 4th DCA 2014).  Trial court erred in failing to impute income to a 59 year old, who was promised “she would never have to work again”.  Court also erred in failing to impute income based on income producing assets Wife received in equitable distribution.

Modification:

Elbaum v. Elbaum, 39 Fla.L.Weekly D1261 (Fla. 4th DCA 2014).  Trial court properly dismissed petition to modify alimony based on change in former wife’s needs when parties agreed alimony would be non-modifiable but for unforeseen change in husband’s health or business.

Kozell v. Kozell, 39 FW D1040 (Fla. 4th DCA 2014).  Trial court affirmed for rejecting magistrate’s recommendation to modify alimony when magistrate could not determine payor’s income and payor had control over his income.

Parenting:

Turnier v. Stockman, 39 Fla.L.Weekly D1056 (Fla. 3rd DCA 2014).  Trial court’s judgment affirmed when judge expressed it “needed a guardian ad litem” but never appointed one and the complaining party never made request.  Trial judges have the right and authority, at any time before entering a final judgment, to change their minds and to change any prior interlocutory ruling.  Trial court affirmed for crafting parenting plan for deaf child without considering expert testimony.

Procedure:

Carnicella v. Carnicella, 39 Fla.L.Weekly D1252 (Fla. 5th DCA 2014).  6 month delay in rendering judgment alone, without more, does not require reversal.  When Court forgot or confuses major issue, it does.

Kilnapp v. Kilnapp, 39 Fla.L.Weekly D1174 (Fla. 4th DCA 2014).  Trial court deprived litigant when it ended hearing before party could cross other party, complete his own examination and call expert witness.

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