Family Law Case Updates – November 2014

Agreements:

Giddins v. Giddins, 39 Fla. Law Weekly D2325 (Fla. 1st DCA 2014).  Error to enter final judgment over objection and pending motion to set aside agreement without first giving opportunity to be heard and present evidence.

Attorneys Fees:

Moore v. Kelso-Moore, 39 FLW D2402 (Fla. 4^th DCA 2014).  Order on temporary fees reversed when trial court made oral pronouncement number of hours billed was unreasonable which conflicted with written finding.  Attorney does not have to bring corroborating expert testimony.  Principal attorney testified to the rate charged and no contrary evidence was presented.

Sbroggio v. Sbroggio, 39 Fla. Law Weekly D2351 (Fla. 3rd DCA 2014).  Trial court erred in reserving jurisdiction to determine fees when fees were not properly pled.

Domestic Violence:

Phillips v. Phillips, 39 Fla. Law Weekly D2343 (Fla. 2nd DCA 2014).  Domestic violence injunction reversed when wife testified there was no violence of threats or violence from husband four months before petition filed.

Phillips v. Hughes, 39 Fla. Law Weekly D2343 (Fla. 2nd DCA 2014).  Domestic violence injunction sought by mother on behalf of child reversed when not supported by competent, substantial evidence of “imminent” threat child would be victim of domestic violence.

Spaulding v. Shane, 39 Fla. Law Weekly D2293 (Fla. 2nd DCA 2014).  Trial court erred in denying motion to dissolve injunction when circumstances in which injunction was issued no longer existed as Respondent was incarcerated until 2039.  Court applied wrong legal standard.

Enforcement:

Gerber v. Gerber, 39 Fla. Law Weekly D2391 (Fla. 2nd DCA 2014).  Trial court clarifying method of repayment of medical expenses was not a modification as it did not provide a new benefit, merely a more precise method of recovering.  Order holding husband in contempt was premature as judgment was not clear in directive regarding objections to medical expenses.

Equitable Distribution:

Krift v. Obenour, 39 Fla. Law Weekly D2296 (Fla. 4th DCA 2014).  Trial court affirmed for categorizing debt incurred for non-marital expenses as a non-marital liability.  Court’s determination of marital or non-marital status is always subject to de nova review.

Jurisdiction:

Arquette v. Rutter, 39 FLW D2443 (Fla. 5^th DCA 2014).  Trial court did not have jurisdiction to modify California judgment of support when neither mother nor child resided in Florida.

Modification:

Wood v. Blunck, 39 FLW D2449 (Fla. 1^st DCA 2014).  Trial court erred in denying petition to modify alimony when wife’s ability has increased and former husband’s situation has deteriorated.

Ellisen v. Ellisen, 39 FLW D2442 (Fla. 5^th DCA 2014).  Error to deny a request to modify alimony when trial court narrowly construed pleading to request termination only.  Pleading and pretrial stipulation put former wife on notice.

Daoud v. Daoud, 39 FLW D2434 (Fla. 1^st DCA 2014).  Trial court lacks jurisdiction to modify property rights previously adjudicated in divorce.

Albu v. Albu, 39 FLW D2400 (Fla. 4^th DCA 2014).  Trial court affirmed for reducing alimony instead of terminating it when former husband had no ability to pay, as the finding must be balanced against the former wife’s total dependence on the alimony and placed parties on equal ground.

Parenting:

Krift v. Obenour, 39 Fla. Law Weekly D2296 (Fla. 4th DCA 2014).  Trial court’s 2 month rotating schedule reversed when it was a significant departure from timesharing requested by either party in pleadings.  Portion of judgment designating husband as primary parent when child enters kindergarten affirmed.

Vazquez v. Robelledo, 39 Fla. Law Weekly D2289 (Fla. 2nd DCA 2014).  Trial court’s order allowing temporary relocation affirmed.  Order allowing wife unsupervised timesharing one weekend per month reversed when it is not in the children’s best interest.  Order requiring Husband to pay $500 per month in family therapy reversed when no evidentiary support for amount.

Procedure:

Castillo v. Castillo, 39 FLW D2403 (Fla. 4^th DCA 2014).  Sworn allegation that judge failed to allow party to present evidence or argument prior to ruling was sufficient to place a reasonably prudent person in fear of not receiving a fair trial, and therefore sufficient to support a disqualification.

Garcell v. Garcell, 39 Fla. Law Weekly D2297 (Fla. 4th DCA 2014).  Trial court abused it’s discretion entering final judgment while court authorized discovery was still pending.

Schmidt v. Schmidt, 39 Fla. Law Weekly D2243 (Fla. 1st DCA 2014).  Final judgment reversed when written judgment differed from oral pronouncements and matter not corrected by successor judge.

Support:

Merkulova v. Elbouatmani, 39 FLW D2440 (Fla.5^th DCA 2014).  Trial court erred in calculating retroactive support as mother’s income not supported by competent substantial evidence.

Gillislee v. DOR o/b/o Hamilton, 39 FLW D2433 (Fla. 1^st DCA 2014).  Trial court committed fundamental error in not crediting child support payments made during retroactive period.

Clark v. Clark, 39 FLW D2399 (Fla. 2^nd DCA 2014).  Trial court could not modify temporary support at contempt hearing when modification was not noticed for hearing.

Terkeurst v, Terkeurst, 39 Fla. Law Weekly D2332 (Fla. 5th DCA 2014).  Trial court erred calculating support as if both children lived with wife when 1 child lived with the husband.