Stephens’ Squibs – August 2015

Agreements:

Hahamovitch v. Hahamovitch, — So.3d –, 40 Fla. L. Weekly S477 (Fla. 2015). The Supreme Court just resolved the conflict between Hahamovitch v. Hahamovitch, 133 So. 3d 1008, 1016 (Fla. 4th DCA 2014), in which the Fourth District certified conflict with the decisions of the Second District in Irwin v. Irwin, 857 So. 2d 247 (Fla. 2d DCA 2003), and the Third District in Valdes v. Valdes, 894 So. 2d 264 (Fla. 3d DCA 2004).

The issue is whether a general release to non-marital properties is sufficient to waive any active appreciation in value (i.e. value increase due to marital efforts).

Previously, the Second and Third Districts held a general release is not sufficient to waive a spouse’s right to seek equitable distribution of the enhanced value of the other spouse’s property resulting from marital labor or funds. However, the Supreme Court agreed with the Fourth District Court of Appeal and concluded where a contract is clear and unambiguous, it must be enforced pursuant to its plain language. “In such a situation, ‘the language itself is the best evidence of the parties’ intent, and its plain meaning controls.’”

As a result of Hahamovitch, if an agreement generally waives all property solely owned by one spouse presently and in the future and waives all of the other spouse’s rights and claims in such property, that waiver now includes a waiver of active marital enhancement even if not specified.

Alimony:

Stoltzfus v. Stoltzfus, — So.3d –, 40 Fla. L. Weekly D1863 (Fla. 2nd DCA 2015).  Interest from retirement accounts should be included in assessing recipient’s need even if recipient has not reached the age of retirement pursuant to section 61.046(8).

Appeals:

Lopez v. Lopez, — So.3d –, 40 Fla. L. Weekly D1830 (Fla. 4th DCA 2015).  Post judgment order of custody upon successful completion of reunification therapy is a non-final order.  Therefore motion for rehearing on order was not authorized and did not toll time for appeal.

Whissell v. Whissell, — So.3d –, 40 Fla. L. Weekly D1829 (Fla. 4th DCA 2015).  Appellate court has discretion to dismiss appeal if appellant found in contempt and fails to comply with purge.  Appellate court must give appellant reasonable time to cure, in this case thirty days.

Attorneys’ Fees:

Kemp v. Kemp, 171 So.3d 243 (Fla. 1st DCA 2015).  Trial court reversed for awarding each party $25,000 as partial equitable distribution at a temporary attorney fee hearing when husband had no ability and there was not a properly pled motion for partial interim distribution.

Hutchinson v. Hutchinson, — So.3d –, 40 Fla. L. Weekly D1731 (Fla. 1st DCA 2015).  Error to award attorneys’ fees when property equitably distributed and incomes equalized by alimony.

Equitable Distribution:

Weaver v. Weaver, — So.3d –, 40 Fla. L. Weekly D1923 (Fla. 4th DCA 2015).  Wife is not entitled to 50% of debt reduction paid from “pooled funds” during marriage on husband’s non-marital property that depreciated in value.  Award of $40,000 to the wife reversed as it was not invested in the property, rather it was used to pay for the wedding, honeymoon, and vehicles.

Somasca v. Somasca, — So.3d –, 40 Fla. L. Weekly D1798 (Fla. 2nd DCA 2015).  Wife entitled to 50% of amount of debt reduction on husband’s non-marital property even when property depreciates during marriage.

Injunctions:

Floyd v. Gray, — So.3d –, 40 Fla. L. Weekly D1905 (Fla. 1st DCA 2015). Relationship with fourteen year old that included spending time with each other at school and holding themselves as “going out” was sufficient to establish a “dating relationship” for purpose of injunction.

Parenting:

Blevins v. Blevins, — So.3d –, 40 Fla. L. Weekly D1945 (Fla. 5th DCA 2015).  Mother moving distance from child’s school was not sufficient a change to warrant a change in timesharing when mother knew the child’s school district was associated with the father’s address and nevertheless made the decision to move away.

Procedure:

Hall v. Hall, — So.3d –, 40 Fla. L. Weekly D1884 (Fla. 4th DCA 2015).  Validity of two page agreement affirmed.  However, court reversed for denying motion to amend thirty days before trial that sought to address issues not covered in agreement.  Refusal to allow an amendment is an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the other party, privilege to amend has been abused, or amendment would be futile.

Garcia v. Garcia, — So.3d –, 40 Fla. L. Weekly D1865 (Fla. 3rd DCA 2015).  Trial court could not deny parties’ exceptions when audio of portion of hearing was inaudible.  A trial court may not adopt magistrate’s report if magistrate fails to file a complete record with the evidence with the report.

Support:

Chianese v. Brady, — So.3d –, 40 Fla. L. Weekly D1823 (Fla. 4th DCA 2015).  Concurring opinion addressing concern that mother, who had little income, would have to invade her assets to pay attorneys’ fees and father was wealthy.  However, the fees requested by mother’s attorney were not reasonable and the legal theories asserted were “out of control”.

Larwa v. Department of Revenue ex rel. Roush, 169 So.3d 1285 (Fla. 5th DCA 2015).  Court loses subject matter jurisdiction to extend support beyond child’s eighteenth birthday once child emancipates.

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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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