Family Law Case Updates – March 2015

Alimony:

Kobe v. Kobe, 159 So.3d 986 (Fla. 1^st DCA 2015).  Trial court erred in awarding alimony in excess of needs without explanation.

Dugan v. Dugan, 160 So.3d 934 (Fla. 5^th DCA 2015).  Trial court erred in refusing to consider wife’s needs for medical care based upon the reliance on husband’s proclamation that Medicare will cover all expenses, which is not the case.

Solache v. Ibarra, 163 So.3d 539 (Fla. 3^rd DCA 2015).  Improper to prospectively increase alimony when child emancipates and child support ends without any explanation.

Department of Revenue e rel. Williams v. Annis, 159 So.3d 263 (Fla. 2^nd DCA 2015).  Successorjudge lacked jurisdiction to enter amended final judgment based on erroneous analysis of imputed income.  Rule 1.540(a) permits court to enter amended judgment on its own initiative fixing clerical errors, it is not designed to permit substantive changes.

Purin v. Purin, 158 So.3d 752 (Fla. 2^nd DCA 2015).  Trial court erred awarding durational alimony, as opposed to permanent, in thirty year marriage based on the fact husband had mandatory retirement in ten years.  Trial court could not resolve current alimony issue by speculating on the parties’ needs and abilities when the husband retires.

Appeals:

Westwood v. Westwood, 157 So.3d 550 (Fla. 5^th DCA 2015).  Trial court properly denied a “petition for modification of partial final judgment or in the alternative motion for rehearing” without a hearing when motion was filed thirty-four days after judgment, no summons was issued and trial court treated motion as 1.530 rehearing which must be filed fifteen days after rendering of judgment.

Enforcement:

Wix v. Wix, 159 So.3d 312 (Fla. 2^nd DCA 2015).  Trial court erred in adopting magistrate’s report when magistrate failed to consider 401(k) as a source to satisfy arrears.

Castelli v. Castelli, 159 So.3d 271 (Fla. 4^th DCA 2015).  Order of contempt reversed as former husband properly exercised his option.  Former husband did not have to comply with former wife’s demands to prove his ability and to draft a contract as those were not elements of the original offer.

Najeeullah v. Peraza, 159 So.3d 278 (Fla. 2^nd DCA 2015).  Order of contempt prohibiting contact between mother and child until mother complies with purge reversed when mother was not on notice, contempt could result in change of custody, and no finding this was in child’s best interest.

Isaacs v. Isaacs, 157 So.3d 545 (Fla. 4^th DCA 2015).  Order of contempt reversed and remanded when order did not articulate husband’s ability to pay.

Evidence:

In re: A.B., — So.3d –, 40 Fla. L. Weekly D591 (Fla. 2^nd DCA 2015).  Trial court improperly relied upon videotape interview victim when it did not qualify as a “statement of child victim” hearsay exception.

Injunctions:

Hair v. Hair, 159 So.3d 984 (Fla. 4^th DCA 2015).  Fact that daughter does not wish to interact with mother does not form basis for injunction.

Carrie v. Kuel, 160 So.3d 97 (Fla. 1^st DCA 2015).  Injunction against repeat violence reversed when not supported by two acts of violence.  Mere shouting and obscene gestures, without overt act, does not constitute an act of violence.

Bristow v. Bristow, 159 So.3d 961 (Fla. 5^th DCA 2015).  Trial court properly dismissed petition for domestic violence injunction without a hearing when petition fails to allege to show petitioner was in imminent fear of being a victim of domestic violence.  Respondent was incarcerated and presented no imminent threat.

Modification:

Cheek v. Hesik, 157 So.3d 1099 (Fla. 1^st DCA 2015).  Trial court modifying judgment when issue not raised by pleadings was reversible error.

Jenkins v. Jenkins, 159 So.3d 310 (Fla. 2^nd DCA 2015).  Judgment modifying support downward reversed when former husband failed to prove his inability to pay arrears.

Parenting:

McGarvey v. McGarvey, 159 So.3d 368 (Fla. 5^th DCA 2015).  Trial court erred adopting husband’s proposed parenting plan as a stipulated parenting plan when the wife never stipulated to it.  Husband’s argument that his parenting plan is better fails because court did not make an independent assessment.

Procedure:

In Re: Amendments to Florida Supreme Court Family Forms, 162 So.3d 964 (Fla. 2015).  Adds language to forms explaining e-service and e-filing in instruction section.

Barry v. Barry, 159 So.3d 306 (Fla. 5^th DCA 2015).  Father making comments to child he was contemplating suicide was sufficient to place mental health at issue to allow psychological evaluation.

Support:

Kemper v. Department of Revenue ex rel. Kemper, 159 So.3d 303 (Fla. 5^th DCA 2015).  Benefits mother received from SSI due to low income disability is income for purposes of determining support.

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.