Family Law Case Updates – October 2015

Alimony:

Taylor v. Taylor, 40 Fla. L. Weekly D2296 (Fla. 2^nd DCA 2015).  Trial court erred awarding four years of alimony in a long term marriage without adequate findings that permanent alimony is inappropriate.

Kelley v.  Kelley,  2015 WL 5714602  (Fla. 4^th DCA 2015). Trial court committed reversible error by awarding durational alimony without making findings of fact on statutory factors.  Statement Court considered all factors insufficient because the Court failed to identify or make findings of fact relative to (1) the standard of living established during the marriage; (2) the contributions of each party to the marriage; (3) the tax treatment and consequences of the alimony award; and (4) all sources of income available to either party.

Attorneys’ Fees:

Cozzo v. Cozzo, 40 Fla. L. Weekly D2268 (Fla. 3^rd DCA 2015).  Trial court erred denying fee request because attorney providing services did not testify.  There is no requirement for attorney to testify.  Movant has to establish 1) detail of work performed and 2) expert testimony as to reasonableness.

Lopez v. Department of Revenue, 40 Fla. L. Weekly D2229 (Fla. 3^rd DCA 2015).  Denial of 57.105 fees reversed when DOR pursued paternity claim 6 months longer than it should. Respondent entitled to attorneys’ fees for litigating exceptions.

Equitable Distribution:

Miggins v. Miggins, 40 Fla. L. Weekly D2386 (Fla. 4^th DCA 2015).  Trial court erred finding husband’s military survivor benefit plan was non-marital, but judgment affirmed because Wife presented no evidence concerning cost of plan, or how property distribution or alimony will be affected.

Gromet v Jensen, 40 Fla. L. Weekly D2347 (Fla. 3^rd DCA 2015).  Trial court erred finding retirement was marital when funded with non-marital assets, no evidence of commingling and Husband used marital efforts to trade account, but account lost value during marriage because Husband made withdrawals to support marital expenses.

Injunctions:

Martello v. Scott, 40 Fla. L. Weekly D2367 (Fla. 5^th DC 2015).  Injunction against stalking reversed where record does not contain competent, substantial evidence stalking occurred.

Richards v. Gonzalez, 40 Fla. L. Weekly D2340 (Fla. 3^rd DCA 2015).  Being an unruly neighbor is insufficient to support stalking injunction.

DeLeon v. Collazo, 40 Fla. L. Weekly D2329 (Fla. 3^rd DCA 2015).  Trial court erred in allowing evidence, over objection, of substantial and significant acts of domestic violence that were not alleged in petition for injunction.  This deprived respondent of due process as he was unable to prepare a defense.

Parise v. Selph, 40 Fla. L. Weekly D2303 (Fla. 1^st DCA 2015).  Order granting permanent injunction against repeat violence reversed when respondent’s due process was violated and he was not allowed to call a police officer as a witness at hearing.  Parties are entitled to a full evidentiary hearing on injunction.  Due process requires party to have a reasonable opportunity to prove or disprove allegations made in complaint including relevant testimony of pertinent, non-cumulative witnesses who are present and cross examination of parties.

Webb v. Jacobson, 40 Fla. L. Weekly D2286 (Fla. 5^th DCA 2015).  Injunction to protect against stalking which prohibited Respondent from accessing “any social media website” was overbroad.  Remanded back to Trial court to determine a way to allow respondent to access social media and Craig’s List except as necessary to protect petitioner from direct or indirect contact.

Bush v. Henney, 40 Fla. L. Weekly D2257 (Fla. 4^th DCA 2015).  In present case, Respondent did not violate injunction in 14 years and injunction arose during timesharing exchange.

Paternity:

DOR o/b/o Torres v. Sanchez, 40 Fla. L. Weekly D2358 (Fla. 1^st DCA 2015).  Trial court erred allowing paternity test in a child support modification action.  In order to allow genetic testing; 1) paternity must be in controversy and 2) “good cause” exists for the testing.

Procedure:

Lalonde v. Lalonde, 40 Fla. L. Weekly D2381 (Fla. 4^th DCA 2015).  Error to enter partial final judgment without providing 30 days notice for hearing.

Shah v. Shah, 40 Fla. L. Weekly D2353 (Fla. 3^rd DCA 2015).  Trial court violated due process by conducting final hearing when only matter noticed was a “status conference”.

Malave v. Malave, 40 Fla. L. Weekly D2284 (Fla. 5^th DCA 2015).  Husband died during pendency of divorce.  After death, Wife filed ancillary petition against husband’s family and attorneys for fraudulent transfers.  Instead of dismissing ancillary petition with prejudice, trial court should have transferred it to civil division.

Rosenblum v. Moore, 40 Fla. L. Weekly D2273 (Fla. 1^st DCA 2015).  Trial court erred holding party in contempt when party filed petition for modification before contempt motion filed.  Party entitled to motion to modify heard and resolved prior to or simultaneously with hearing on later filed motion for contempt.

Same-Sex Issues:

Russell v. Pasik, 40 Fla. L. Weekly D2313 (Fla. 2^nd DCA 2015).  Trial court erred in failing to grant biological parent’s motion to dismiss former same sex partner’s request for timesharing of minor child.  Fact same-sex partner served as “de factor” or “psychological” parent not sufficient to confer standing.

Support:

Horrisberger v. Horrisberger, 40 Fla. L. Weekly D2298 (Fla. 2^nd DCA 2015).  Trial court erred using one parties’ net income and another’s gross income in calculating child support.  This is like comparing apples and oranges and not a permissible way to calculate child support.