Stephens’ Squibs – July 2015

Alimony:

Sikora v. Sikora, — So.3d –, (Fla. 2nd DCA 2015).  Award of $17,500 per month in permanent alimony to wife reversed where it exceeded wife’s needs with no findings of special circumstances.  Further, no evidence to support 2.5% imputation of income on liquid assets.

Banks v. Banks, 168 So.3d 273 (Fla. 2nd DCA 2015).  Trial court reversed for awarding twenty-four months of durational alimony, instead of permanent alimony, in thirty-three year marriage.  Trial court applied wrong legal standard.  Even with no transcript, court erred as a matter of law.

Equitable Distribution:

Dravis v. Dravis, 170 So.3d 849 (Fla. 2nd DCA 2015).  Amount of money gifted to wife by her mother during marriage was marital asset because it was commingled with other marital assets.  However, matter remanded over $120,000 depleted from account during pendency for court to determine if funds were spent for a purpose unrelated to the marriage at time it was going through irreconcilable breakdown.

Stantchev v. Stantcheva, 168 So.3d 313 (Fla. 5th DCA 2015).  Trial court erred charging cost of converting dollars to foreign currency to former husband when transfer was not for nefarious purpose.  Former wife should be charged with $4,000 she paid to attorneys two months before filing.

Smith v. Smith, 169 So.3d 220 (Fla. 2nd DCA 2015).  Trial court erred charging as marital asset vehicle sold during pendency of action and the vehicle party bought after the date of filing with the proceeds from the sale of the vehicle sold.

Evidence:

Tucker v. Tucker, 171 So.3d 158 (Fla. 4th DCA 2015). Trial court erred valuing stocks by averaging experts’ values as opposed to allowing full evidentiary hearing and basing decision on substantial competent evidence.

Injunctions:

Coe v. Abdo, 790 So.2d 1276 (Fla. 5th DCA 2015).  Trial court erred denying legally sufficient motion to dissolve injunction without evidentiary hearing.

Imputation:

Thompson v. Malicki, 169 So.3d 271 (Fla. 2nd DCA 2015).  Trial court’s imputation of $3,467 per month to former wife not supported by findings of prevailing wages for available jobs former wife is qualified for.  Reliance on past history alone is insufficient to support imputation.

Dottaviano v. Dottaviano, 170 So.3d 98 (Fla. 5th DCA 2015).  Trial court erred imputing income without finding voluntary underemployment/unemployment.

Modification:

Dickson v. Dickson, 169 So.3d 287 (Fla. 5th DCA 2015).  Trial court erred changing timesharing when former wife moved forty-nine miles away and changed the child’s school.  Former wife did not relocate child more than fifty miles away.  Court cannot modify child’s school without evidence the child’s welfare would be promoted by returning him to school.

Rossi v. Rossi, 169 So.3d 1233 (Fla. 5th DCA 2015).  Trial court should have treated unauthorized motion for rehearing as properly filed request for exceptions.  Where it is apparent that an improperly labeled motion is “intended to operate” as an authorized motion, an appellate court must consider the motion as if it were properly labeled.

Suleiman v. Yunis, 168 So.3d 319 (Fla. 5th DCA 2015).  Trial court abused discretion entering ex parte post judgment emergency order transferring custody to former husband because former wife moved children twenty-eight miles away and unilaterally changed schools.  Husband did not allege children were in danger of harm or being removed from jurisdiction.  Failure to give notice absent a true emergency deprives party of due process.  Change of custody must be based on best interests of children, not just to sanction violation of shared parental responsibility.

Partition:

Richeson v. Richeson, 170 So.3d 842 (Fla. 5th DCA 2015).  Error to require property be sold when partition not requested in pleadings.

Dottaviano v. Dottaviano, 170 So.3d 98 (Fla. 5th DCA 2015).  Trial court erred in failing to partition marital residence where parties’ incomes were inadequate to meet their debts, obligations, and normal living expenses, as well as the expense of maintaining the marital residence.

Paternity:

Drouin v. Stuber, 40 Fla. L. Weekly D1543 (Fla. 4th DCA 2015).  Trial court erred setting aside paternity judgment on basis that mother’s husband was not joined as indispensable party when her husband was not asserting a claim over child.  Constitutional rights are personal and cannot be asserted vicariously.

Procedure:

Drouin v. Stuber, 168 So.3d 305 (Fla. 4th DCA 2015).  Motion for reconsideration authorized on post decretal order that is dispositive of issue, ends judicial labor and constitutes final and distinct adjudication of rights which have not been adjudicated in original final judgment.

Relocation:

Fosshage v. Fosshage, 167 So.3d 525 (Fla. 3rd DCA 2015).  Trial court erred not following dictates of 61.13001 in request for relocation that was couched as modification.

Support:

Department of Revenue ex rel. Davis v. Davis, — So.3d –, 40 Fla. L. Weekly D1609 (Fla. 2nd DCA 2015).  Trial court erred when it failed to determine arrears owed for period before judgment registered in Florida.

Quinn v. Quinn, 169 So.3d 268 (Fla. 2nd DCA 2015).  Error in child support calculation, number of overnights, on face of judgment required reversal even in absence of transcript.

Sowell v. McConnell, 167 So.3d 521 (Fla. 5th DCA 2015).  Trial court erred not awarding wife with pro rata share of uncovered medical bills paid for child during pendency of action.

Elias v. Elias, 168 So.3d 301 (Fla. 4th DCA 2015).  Trial court erred by failing to set temporary child support pursuant to guidelines.  Just because wife had $1 million in annual investment income and can pay for child’s “vendors and providers” does not allow court to disregard child support guidelines.

Boyd v. Boyd, 168 So.3d 302 (Fla. 4th DCA 2015).  Trial court erred failing to determine arrears and credits when former husband conceded he had not made all court ordered payments.

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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.

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