Family Law Case Updates – November 2015

Agreements:

Niazi v. Niazi, 40 Fla. L. Weekly D2447 (Fla. 5^th DCA 2015).  Trial court erred equally distributing line of credit when parties’ prenuptial agreement provided if joint tax return is filed each party is responsible pro rata for their share of taxes to be paid from separate property and Husband took out line of credit to pay his portion of the taxes.

Attorneys’ Fees:

Niazi v. Niazi, 40 Fla. L. Weekly D2447 (Fla. 5^th DCA 2015).  A contractual limitation to attorney’s fees in a prenuptial agreement is enforceable in an award of appellate attorneys’ fees.

Enforcement:

Korn v. Korn, 40 Fla. L. Weekly D2711 (Fla. 4^th DCA 2015).  Order on indirect contempt reversed because 2 ½ days between order to show cause and final hearing was not “reasonable time” for preparation of defense and court erred by taking “negative inference” from defendant’s silence as this violated his 5^th Amendment Constitutional right against self-incrimination.

Cockrell v. Kinnett, 40 Fla. L. Weekly D2497 (Fla. 5^th DCA 2015).  Trial court erred as a result of contempt action where modification was requested in body of motion and not prayer for relief.  5^th DCA thinks you must file a modification action.

Evidence:

Brown v. Brown, 40 Fla. L. Weekly D2613 (Fla. St DCA 2015).  Trial court affirmed for excluding minor child’s psychotherapist report from evidence.  Parents could not waive privilege because the subject matter of litigation was the child’s welfare.

Injunctions:

Mantell v. Rocke, 40 Fla. L. Weekly D2617 (Fla. 1^st DCA 2015).  Driving by victim’s house 2 times, 5 years after violent assault was insufficient to support injunction against domestic violence.

Champion v. Zuilkowski, 40 Fla. L. Weekly D2751 (Fla. 5^th DCA 2015).  Error to summarily deny motion to dissolve injunction that alleged change of circumstances without conducting an evidentiary hearing.

Roach v. Brower, 40 Fla. L. Weekly D2731 (Fla. 2^nd DCA 2015).  Injunction against stalking must be supported by evidence of substantial emotional distress.

Thoma v. O’Neal, 40 Fla. L. Weekly D2721 (Fla. 4^th DCA 2015).  Putting name, address, picture and racial slurs on a flyer regarding an abortion clinic’s employee constituted stalked as opposed to free speech.  Amendment offers no protection for speech that intrudes on the privacy of one’s home.

Neptune v. Lanove, 40 Fla. L. Weekly D2469 (Fla. 4^th DCA 2015).  Stalking injunction that prohibited respondent from criticizing police officer on social media determined to be unconstitutional.  The injunction paints with unduly broad strokes on a very large canvas and goes far beyond enjoining respondent’s cyber stalking of officer.  Injunction must be reformulated and narrowly tailored in order to more properly balance the desire to protect officer from harassment and stalking with the need to safeguard respondent’s First Amendment rights.

Lippens v. Powers, 40 Fla. L. Weekly D2455 (Fla. 5^th DCA 2015).    Two texts from step-mother to step-child expressing desire to see child was not sufficient to support stalking injunction as there was a legitimate purpose for communication.

Modification:

Gurdian v. Gurdian, 40 Fla. L. Weekly D2571 (Fla. 2^nd DCA 2015).  Trial court erred making modification retroactive to date of filing when husband received a severance and was able to pay his obligations.

George v. Lull, 40 Fla. L. Weekly D2548 (Fla. 4^th DCA 2015).  Having more time to exercise timesharing due to work is not sufficient change of circumstances to justify modification.

Parenting:

Gallatin v. Varca, 40 Fla. L. Weekly D2547 (Fla. 4^th DCA 2015).  Trial court properly temporarily suspended timesharing of Father arrested for felony child abuse of another child but erred in not setting forth steps to reestablish timesharing with son.

Paternity:

DOR o/b/o Cowie v. Orlowski, 40 Fla. L. Weekly D2539 (Fla. 4^th DCA 2015).  Trial court properly found res judicata barred 2^nd paternity action against bio-father when first action was dismissed with prejudice.

DOR o/b/o Barnhill v. Smith, 40 Fla. L. Weekly D2527 (Fla. 1^st DCA 2015).  Order allowing paternity test departed from essential requirements of law because paternity not in controversy and good cause not shown for paternity test.

Procedure:

In Re: Amendments to Family Law Forms, 40 Fla. L. Weekly S647 (Fla. 2015).  Family forms amended to add additional notice about e-filing.

Chopin & Chopin v. Brennan, 40 Fla. L. Weekly D2463 (Fla. 4^th DCA 2015).  Matter remanded back to Trial court to resolve ambiguity in agreed order.

Rodriguez v. Rodriguez, 40 Fla. L. Weekly D2448 (Fla. 5^th DCA 2015).  Inmate’s due process violated when Trial court denied him opportunity to participate in final hearing telephonically.

Noormohamed v. Noormohamed, 40 Fla. L. Weekly D2443 (Fla. 5^th DCA 2015).  Provision requiring Wife to return property to mother-in-law stricken because trial court lacked jurisdiction to adjudicate property rights of non-parties.

Timmons v. Timmons, 40 Fla. L. Weekly D2431 (Fla. 2^nd DCA 2015).  Trial court must require at least 20% of alimony to be paid towards arrears via an IWO per 61.1301(1)(b)(2).

Vinsand v. Vinsand, 40 Fla. L. Weekly D2411 (Fla. 2^nd DCA 2015).  Trial court erred denying motion to transfer for improper venue when parties did not last live in county with common intent to remain married nor did Defendant reside in county where divorce was filed.

Support:

Brown v. Brown, 40 Fla. L. Weekly D2613 (Fla. St DCA 2015).  Court erred adjusting all of husband’s business expenses by 50% when bookkeeper testified some of husband’s expenses (ie purchase from Costco) was treated as 50% personal and 50% business.

Tluzek v. Tluzek, 40 Fla. L. Weekly D2566 (Fla. 5^th DCA 2015).  Adoption subsidy for special needs child cannot be used to offset Father’s child support obligation.