Stephens’ Squibs – March 2016

Alimony:

Abott v. Abott, 41 Fla.L.Weekly D587 (Fla. 1st DCA 2016).  Order on alimony and attorneys fees remanded when it failed to include required findings of fact.

Annulment:

Smith v. Smith, 41 Fla.L.Weekly D542 (Fla. 4th DCA 2016).  Annulment affirmed when at time of marriage Husband was declared incompetent and had no right to contract.  A marriage entered into by a person with no right to marry is void.

Appeals:

Farghali v. Farghali, 41 Fla.L.Weekly D607 (Fla. 4th DCA 2016).  Husband waived his argument that court failed to make findings on assets and liabilities.  A party is not entitled to complain that a judgment fails to contain sufficient findings unless omission raised to trial court by motion for rehearing.

Cuesta v. Cuesta, 41 Fla.L.Weekly D529 (Fla. 4th DCA 2016).  Appeal awarding entitlement to fees dismissed as premature.  Must wait for amount to be resolved to have a final appealable order.

Attorneys Fees:

Nagl v. Navarro, 41 Fla.L.Weekly D671 (Fla. 4th DCA 2016).  Order awarding fees that lacked findings of fact remanded back to trial court.

Enforcement:

Farghali v. Farghali, 41 Fla.L.Weekly D607 (Fla. 4th DCA 2016).  Contempt power of court cannot be invoked for settlement of property rights as opposed to alimony or support.  Payments for equitable distribution are not enforceable by contempt, but only by the usual remedies available to a creditor against his debtor.

Equitable Distribution:

Neiditch v. Neiditch, 41 Fla.L.Weekly D720 (Fla. 5th DCA 2016).  Trial court erred requiring Husband to pay entire difference between parties marital net worth as equalizing payment, it should have been half.  Also corrects mathematical errors.

Miller v. Miller, 41 Fla.L.Weekly D671 (Fla. 4th DCA 2016).  Judgment that did not include specific finding of intentional misconduct which resulted in dissipation if a marital asset remanded for redetermination.

Coleman v. Bland, 41 Fla.L.Weekly D567 (Fla. 5th DCA 2016).  Trial court erred in failing to distribute retirement in a 39 month marriage based on conclusion it would be diminimis.

Pierre v. Pierre, 41 Fla.L.Weekly D472 (Fla. 4th DCA 2016).  Even though court stuck pleadings and entered default against the Husband for refusing to participate in discovery, and husband failed to participate in final hearing, judgment reversed because Court failed to make specific findings regarding value of assets and liabilities distributed.

Marquez v. Lopez, 41 Fla.L.Weekly D593 (Fla. 4th DCA 2016).  Trial court who failed to make equitable distribution schedule because of “lack of evidence” was reversed as there was enough evidence, in testimony and financial affidavit, for a court to value and devise a financial affidavit.

Injunctions:

Butler v. Cabassa, 41 Fla.L.Weekly D595 (Fla. 4th DCA 2016).  Trial court erred summarily denying motion to vacate amended final judgment of injunction when court sua sponte amended final judgment of injunction to alter timesharing with minor child without notice or an opportunity to be heard.

J.G. v. E.B. o/b/o J.G., 41 Fla.L.Weekly D4790 (Fla. 5th DCA 2016).  Injunction for protection against domestic violence reversed as there was no competent evidence paternal grandfather who allegedly sexually assaulted grandchild.  Child’s hearsay statement was objected to and attorney failed to raise 90.803(23) statements of child victim hearsay exception.

CJM Partners, LLC v. DiGiacomo, 41 Fla.L.Weekly D466 (Fla 3rd DCA 2016).  Order enjoining third party defendant corporation from disposing of assets reversed as court did not require posting a bond in accordance with Fl.R.Civ.Pro. Rule 1.610(b).

Name Change:

In Re: The Name Change of Jason Lane Merchant, 41 Fla.L. Weekly D497 (Fla. 1st DCA 2016).  Res judicata does not apply to a name change case as it is not an adversarial proceeding, as there is no identity of parties.

Parenting:

Magdziak v. Sullivan, 41 Fla.L.Weekly D488 (Fla. 5th DCA 2016).  Judgment reversed because parenting plan did not comply with all the requirements of section 61.13(2)(b), Florida Statutes.

T.J. v. C.W.P. III, 41 Fla.L.Weekly D677 (Fla. 2nd DCA 2016).  Trial court erred when timesharing schedule in final judgment differed then oral pronouncement.

Procedure:

Leslie v. Gray-Leslie, 41 Fla.L.Weekly D719 (Fla. 5th DCA 2016).  Even though default entered and husband’s pleadings were struck, Court erred entering judgment without providing notice of final hearing or failure of court to take evidence.  Striking of pleadings did not obviate need of wife to support her petition with evidence.  It is generally improper to resolve kid issues by default as interest of child are paramount consideration.  Although pleadings struck, Husband entitled to notice and should have been afforded opportunity to present evidence.

DOR ex rel. Johnson v. Haugton, 41 Fla.L.Weekly D616 (Fla. 3rd DCA 2016).  Order terminating obligation to pay support as child was not child of obligor reversed because DOR, who was a party, was not provided notice.

Longarzo v. Castillo, 41 Fla.L.Weekly D608 (Fla. 4th DCA 2016).  Trial court reversed for summarily dismissing modification for “unclean hands” because court did not hold hearing to see if party with unclean hands had ability to comply with previous order.

Christou v. Baldree, 41 Fla.L.Weekly D566 (Fla. 5th DCA 2016).  Court cannot require a party to pay fees when it lacks personal jurisdiction over party.

Jordan v. Jordan, 41 Fl.L.Weekly D566 (Fla. 5th DCA 2016).  Order requiring psycho-social evaluation reversed when condition was not at issue and order was too broad as it did not specify testing.

Mata v. Mata, 41 Fla.L.Weekly D466 (Fla. 3rd DCA 2016).  Trial court erred rejecting magistrate’s findings.  Once a trial court appoints a magistrate to take testimony and make findings, it loses prerogative of substituting its judgment for that of the magistrate.  In such instances, a trial court reviewing a magistrates findings and recommendations take on the role similar to appellate court reviewing a trial court’s actions.  If exceptions to the magistrate’s report are filed, a trial court reviews the records to determine whether the magistrate’s factual findings are supported by competent substantial evidence, and whether the magistrates legal conclusions are clearly erroneous or whether the magistrate misconceived the legal effect of the evidence.

 

Eddie Stephens is a partner at Ward Damon who is Board Certified in Family and Marital Law and has developed a successful family law practice focused on highly disputed divorces. Most importantly to Stephens is litigating in a manner that minimizes the impact of divorce on children.  If you need help with marital or family matters, you may reach Eddie at EStephens@warddamon.com

 

 

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