Family Law Case Updates – September 2015

Agreements:

Berg v. Young, 40 Fla. L. Weekly D2036 (Fla. 4^th DCA 2015).  Agreement did waive enhancement of non-marital assets per recently decided Supreme Court case, Hahamovitch v. Hahamovitch, 40 Fla. L. Weekly S477 (Fla. 2015).

Alimony:

Rutan v. Rutan, 40 Fla. L. Weekly D2127 (Fla. 2^nd DCA 2015).  Appeal of remand judgment. Judge originally failed to make findings as to Husband’s income.  In the remand trial the Judge admitted he could not determine Husband’s income due to his multiple enterprises and affirmed original alimony amount.  Trial judge must do better. Matter remanded for a second time for determination of Husband’s income.

Dorworth v. Dorworth, 40 Fla. L. Weekly D2074 (Fla. 5^th DCA 2015).  Alimony that appears to award Wife more than needed remanded for further explanation.

Niekamp v. Niekamp, 40 Fla. L. Weekly D1961 (Fla.2^nd DCA 2015).  Error to deny Husband alimony who is unable to work due to mental issues.  Issue remanded for determination of need and ability.

Appeals:

Martinez v. Singh, 40 Fla. L. Weekly D2064 (Fla. 1^st DCA 2015).  Motion for rehearing does not toll time to appeal interim order.

Attorneys’ Fees:

Jackson v. Jackson, 40 Fla. L. Weekly D2172 (Fla. 2^nd DCA 2015).  Order awarding 57.105 fees deficient when no findings supporting sanction or amount of fees.

Berg v. Young, 40 Fla. L. Weekly D2036 (Fla. 4^th DCA 2015).  Court erred not awarding Husband fees under prevailing party clause because Wife sought to void agreement and lost.  Denial of 61.16 fees reversed as Court failed to make required findings of fact of need and ability to pay.

Equitable Distribution:

Matteson v. Matteson, 40 Fla. L. Weekly D2179 (Fla. 1^st DCA 2015).  Final judgment lacking findings as to distribution and the Final Judgment indicated certain attachments would address equitable distribution, but no such attachments were included in the record on appeal.  Reversed and remanded  for  trial court to make specific findings on equitable distribution. .

Terry v. Terry, 40 Fla. L. Weekly D2139 (Fla. 4^th DCA 2015).  Trial court erred in failing to divide Wife’s “alleged” loan from parents.

Corcoran v. Corcoran, 40 Fla. L. Weekly D2120 (Fla. 5^th DCA 2015).  Trial court erred requiring Wife to be solely responsible for mold repairs on residence pending sale when record contained no evidence she caused the damage.  After a dissolution of marriage, the parties become equally responsible for all payment necessary to maintain ownership including mortgage, taxes and insurance.

Gentile v. Gentile, 40 Fla. L. Weekly D2103 (Fla. 4^th DCA 2015).  Parties’ dispute concerning interpretation of property settlement agreement and whether division of real property provided canal access and the value of canal access remanded for redetermination.

Dorworth v. Dorworth, 40 Fla. L. Weekly D2074 (Fla. 5^th DCA 2015).  Trial court erred valuing a liability which caused entire matter to be remanded.

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).

Hooker v. Hooker, 40 Fla. L. Weekly D1986 (Fla. 4^th DCA 2015).  Trial court reversed for finding asset acquired from non-marital source a marital asset because it was an interspousal gift.  Interspousal gift is established by showing 1) donative intent, 2) deliver possession of gift, and 3) surrender of dominion and control of the gift.  Burden on party trying to prove interspousal gift. However, property in which husband sent a picture to wife in an anniversary card was properly deemed an interspousal gift and therefore marital property subject to distribution.

Kyriacou v.Kyriacou, 40 Fla. L. Weekly D1962 (Fla. 2^nd DCA 2015).  Error to award unequal property distribution based on parties future relative earning disparity.

Niekamp v. Niekamp, 40 Fla. L. Weekly D1961 (Fla.2^nd DCA 2015).  Error classifying business created during marriage as non-marital.  Court must value it and exclude any personal good will. Error to charge depleted account used to pay attorneys’ fees to party without showing of waste.

Name Change:

Airsman v. Conklin, 40 Fla. L. Weekly D2081 (Fla. 2^nd DCA 2015).  Order changing surname of child reversed when not supported by competent evidence child’s best interest is served or the welfare of the child is at risk. The party seeking to change the name bear the burden of proof. Conclusory assertions are insufficient.

Parenting:

Niekamp v. Niekamp, 40 Fla. L. Weekly D1961 (Fla.2^nd DCA 2015).  Trial court erred denying all timesharing.  Judgment must include schedule or benchmarks for reestablishing parent into child’s life.

Procedure:

Wolfson v. Wolfson, 40 Fla. L. Weekly D2114 (Fla. 3^rd DCA 2015).  Trial court erred temporarily modifying custody with affording other party opportunity to be heard. Tortured procedural history.

Bailey v. Bailey, 40 Fla. L. Weekly D2105 (Fla. 4^th DCA 2015).  Trial court erred granting social investigation when motion filed the same day as the hearing essentially depriving party of notice.  Also error to require production of previous mental health records as there may be a therapist-patient privilege.

Temares v. Temares, 40 Fla. L. Weekly D2059 (Fla. 3^rd DCA 2015).  Trial court erred sua sponte ordering psychological evaluation and drug testing of party when request not made by motion and mental state not at issue by verified pleading.

Suarz v. Orta, 40 Fla. L. Weekly D2050 (Fla. 3^rd DCA 2015).  Trial court erred by not treating pro se litigant’s motion to vacate as exceptions.  Pleadings by pro se litigants should be defined by function.  Florida Courts emphasize substance over form.  As a general rule, if a motion is improperly titled, Court should focus on substance of motion.

Testa v. Testa, 40 Fla. L. Weekly D2033 (Fla.4^th DCA 2015).  Trial court erred by entering order prohibiting pro se party from filing pleadings because it did not follow proper procedure by issuing show cause order and allowing response before sanction.

Relocation:

Vaelizadeh v. Hossaini, 40 Fla. L. Weekly D2029 (Fla. 4^th DCA 2015).  Order allowing relocation reversed, good cause existed to preclude entry of the relocation judgment despite Father’s untimely response to the Mother’s relocation petition.

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.