Family Law Case Updates – February 2015

Alimony:

Juchnowicz v. Juchnowicz, 157 So.3d 497 (Fla. 2^nd DCA 2015).  Award of $1,500 per month reversed when not commensurate with the standard of living established by the parties during the marriage or the husband’s ability to pay. The purpose of permanent alimony is to allow the requesting spouse to maintain the standard of living established by the parties during the marriage and to ensure that when viewing the totality of the circumstances, one spouse is not short changed.  The trial court is required to ensure the party’s standard of living comes as close as possible to the prior lifestyle, given the available financial resources.

Atkinson v. Atkinson, 157 So.3d 473 (Fla. 2^nd DCA 2015).  Just because man was renting a room from former wife, his presence did not violate cohabitation agreement that would automatically terminate alimony obligation.

Appeals:

Kelly v. Snietka, 155 So.3d 1278 (Fla. 4^th DCA 2015).  Appellate court had jurisdiction to review matters occurring before filing notice of appeal.

Attorneys’ Fees:

Butler v. Prine, 158 So.3d 748 (Fla. 2^nd DCA 2015).  Award of $93,000 in fees remanded when appellate court not convinced trial court adequately considered the reasonableness and necessity of all the legal work underlying these fees.

Henderson v. Henderson, 162 So.3d 203 (Fla. 5^th DCA 2015).  Trial court’s denial of fees reversed when no findings as to parties’ needs and abilities.

Card v. Card, 160 So.3d 468 (Fla. 2^nd DCA 2015).  Wife waived her argument on appeal that court capped fees and failed to make findings when she “invited error” by requesting fees in that manner from the trial court.

Spreng v. Spreng, 162 So.3d 168 (Fla. 5^th DCA 2015).  Trial court affirmed for awarding fees without necessary findings of reasonableness.  Other party waived argument by not seeking re-hearing.

Discovery:

Medina v. Haddad, 156 So.3d 1113 (Fla. 3^rd DCA 2015).  Order requiring party to paternity case, who is a personal injury attorney, to produce confidential settlement agreements concerning third parties to compute her income.  Party agreed to produce a reconciliation of the amounts she has, or is expected to receive, as well as a list of cases and tax returns for two years.  Non parties have private right. No showing information could not be obtained in another manner.

Enforcement:

Maguire v. Wright, 157 So.3d 493 (Fla. 5^th DCA 2015).  Trial court did not err in granting former wife custody when former husband failed to return children by a court mandated date even though court did not consider best interest of children.  Court did not have to consider children’s best when improper removal from jurisdiction at issue.

Haeberli v. Haeberli, 157 So.3d 489 (Fla. 5^th DCA 2015).  Trial court reversed Order holding party in contempt when motions were not noticed for hearing.

Winton v. Saffer, 158 So.3d 703 (Fla. 3^rd DCA 2015).  Order of contempt reversed when no findings as to commencement of arrearages, total unpaid balance, and computation of purge amount.  It appears from record court allowed more relief than what was requested in the pleadings.  Relief exceeding that which was pled is impermissible.

Equitable Distribution:

Clark v. Clark, 133 So.3d 1261 (Fla. 1^st DCA 2015).  Order on equitable distribution remanded as trial court misread account statement.

Patel v. Patel, 162 So.3d 165 (Fla. 5^th DCA 2015).  Error to award residence with mortgage to party without requiring them to attempt to refinance to remove other party from liability and require hold harmless provision.  Error to require party to pay half of debt to other party’s parent without payment plan.

Jurisdiction:

McIndoo v. Atkinson, 159 So.3d 227 (Fla. 4^th DCA 2015).  Trial court reversed for denying petition to domesticate foreign decree. Party was not required to bring a child custody proceeding to domesticate.  Home state rule does not apply unless a child custody proceeding is brought. Fact that there is a simultaneous proceeding does not prevent domestication.

Modification:

Baker v. Baker, 157 So.3d 491 (Fla. 5^th DCA 2015).  Trial court’s order transferring temporary “custody” of the parties’ minor children until further order of the court reversed when modification not pled nor noticed for hearing.

Chamberlain v. Eisenger, 159 So.3d 185 (Fla. 4^th DCA 2015).  Trial Court affirmed for modifying timesharing to modify order of custody, the movant must show both the circumstances have substantially and materially changed since the original custody determination and that the child’s best interests justify changing custody.  The change cannot have been contemplated by the parties.  This places an “extraordinary burden” on the movant. This high burden is intended to preclude parties to a dissolution from continually disrupting the lives of children by initiating repeated custody disputes.  However, in this case, modification is warranted.

Henderson v. Henderson, 162 So.3d 203 (Fla. 5^th DCA 2015). Modification from shared parental to sole remanded when trial court failed to include finding that shared would be detrimental to children.

Paternity:

Florida Dept. Revenue ex rel. Corbitt v. Alletag, 156 So.3d 1110 (Fla. 1^st DCA 2015), Florida Dept. of Revenue v.Kerr,155 So.3d 1262 (Fla. 1^st DCA 2015).  Order for genetic testing reversed when paternity not at issue as it was admitted in answer.

J.A.I. v. B.R., 160 So.3d 473 (Fla. 2^nd DCA 2015).  Paternity testing requested by alleged third party putative father reversed when two other individuals signed voluntary acknowledgment of paternity and sixty days passed.  This act adjudicated paternity and therefore B.R. is precluded from bringing an action for paternity.

Support:

Chamberlain v. Eisenger, 159 So.3d 185 (Fla. 4^th DCA 2015).  Error to deduct alimony obligation from payor’s gross income when alimony was not actually being paid.  Error to impute income without findings of fact concerning probable and potential earnings level.

Henderson v. Henderson, 162 So.3d 203 (Fla. 5^th DCA 2015).  Trial court reversed for failing to credit party with any overnights in calculation and for failing to include automatic reduction for support when child turns 18.

Moore v. Moore, 157 So.3d 435 (Fla. 2^nd DCA 2015).  Trial court’s determination of husband’s income reversed when it failed to deduct any business expenses even when husband’s testimony lacked credibility.

Patel v. Patel, 162 So.3d 165 (Fla. 5^th DCA 2015).  Error not to divide uncovered medical pro rate by parties’ income or include health insurance premium in support guidelines.

Rudnick v. Rudnick, 162 So.3d 116 (Fla 4^th DCA 2014).  Error for court to base husband, who is a political consultant, on 2012 income which was a presidential race and caused a spike to income.  2012 income was not regular and continuous, but was instead due to a specific non-recurring event, i.e. 2012 presidential election.

Eddie Stephens is a partner in Ward Damon located in West Palm Beach, FL. Mr. Stephens was admitted to the Florida Bar in 1997 and is Board Certified in Family and Marital Law.  After starting his career as an attorney for the Palm Beach County Property Appraiser’s Office, Stephens has developed a successful family law practice focused on highly disputed divorces. Through hundreds of hearings and dozens of trials, Stephens has honed his practice by making straightforward arguments that bring opposing sides closer together in order to find a successful resolution.