Stephens’ Squibs – May 2016

Agreements:

Feliciano v. Munoz-Feliciano, 41 Fla.L.Weekly D1074 (Fla. 4th DCA 2016).  Parties agreed Wife will be credited from proceeds of sale for mortgage payments she made pending sale.  There were no proceeds from sale, so Wife was precluded from reimbursement as contract envisioned sale proceeds as exclusive source of payment.

Alimony:

Ketcher v. Ketcher, 41 Fla.L.Weekly D1007 (Fla. 1st DCA 2016).  Award of $500 per month in alimony to Husband remanded on basis for amount not apparent from judgment.  Trial court concluded Husband was voluntarily underemployed, but did not impute income nor articulate how voluntary underemployment impacted his need for alimony.

Attorneys’ Fees:

Bellant v. Bellant, 41 Fla.L.Weekly D1117 (Fla. 2nd DCA 2016).  Award of $400 in fees for losing a motion to compel pursuant to Fl.R.Civ.Pro. Rule 1.380(a)(4) affirmed.

Ivanovich v. Valladerez, 41 Fla.L.Weekly D1069 (Fla. 2nd DCA 2016).  Order awarding fees must contain findings of fact regarding reasonableness of hour rate and number of hours expended.

Enforcement:

Steinman v. Steinman, 41 Fla.L.Weekly D1128 (Fla. 4th DCA 2016).  Order of contempt prohibiting Mother from having children follow her religious beliefs and practices reversed as it impermissibly impinged on her religious freedom.  Trial court cannot preclude the custodial parent of one religious faith from actively influencing the training of the child inconsistent with the different religious faith of the other parent.

Turk v. Turk, 41 Fla.L.Weekly D1043 (Fla. 4th DCA 2016).  Trial court’s order of contempt for missing a day of visitation in October under provision in agreement entitled “winter break”.  Court cannot base contempt on something judgment does not say.

Equitable Distribution:

Salazar v. Giraldo, 41 Fla.L.Weekly D1104 (Fla. 5th DCA 2016).  Final judgment that required marital home to be sold, granted occupancy to husband, required husband to pay all expenses associated with house but was silent as to credits remanded back to trial court for clarification.

Lardizzone v. Lardizzone, 41 Fla.L.Weekly D1078 (Fla. 4th DCA 2016).  Appeal with no transcript remanded back to trial court to determining what medical bills the Husband is actually liable for and to make findings as to cut-off date.

Mills v. Mills, 41 Fla.L.Weekly D1046 (Fla. 5th DCA 2016).  Trial court erred not classifying $100,000 debt Husband obtained by forging Wife’s name as non-marital.  Expenditures and investment decisions which do not rise to the level of misconduct will not support unequal equitable distribution.  However, liabilities incurred by forgery not ratified by behavior should be sole liability of person perpetrating fraud.

Ketcher v. Ketcher, 41 Fla.L.Weekly D1007 (Fla. 1st DCA 2016).  Trial court did have the authority to require Former Husband to maintain life insurance policy naming Wife as beneficiary in order to secure marital debt.  However, amount of policy must be related to amount secured.

Injunctions:

Scott v. Blum, 41 Fla.L.Weekly D1056 (Fla. 2nd DCA 2016).  Injunction against cyber stalking reversed.  Respondent sent a derogatory email to 2,200 of the Petitioner’s work peers.  However, the email was not directed to the petitioner, therefore does not comport with statute.

Feldman v. Callins, 41 Fla.L.Weekly D1043 (Fla. 4th DCA 2016).  Trial court erred denying motion to modify stalking injunction without evidential hearing.

Whyce v. Petithome, 41 Fla.L.Weekly D1024 (Fla. 4th DCA 2016).  Temporary injunction that does not contain date for future hearing reversed as it does not comply with section 741.50(5)(c), Florida Statutes.

Wills v. Wills, 41 Fla.L.Weekly D D1008 (Fla. 1sr DCA 2016).  Injunction against domestic violence filed by daughter with mental illness granted by trial court against parents because expert opined parents caused daughter’s mental problems reversed.  Mere uncivil behavior that causes distress or annoyance is not sufficient basis for injunction.

Modification:

D.M.J. v. A.J.T., 41 Fla.L.Weekly D1057 (Fla. 2nd DCA 2016).  Judgment modifying timesharing because Mother moved 77 miles away reversed when Court did not consider best interests of the child.

Parenting:

Gonzalez v. Walker, 41 Fla.L.Weekly D1186 (Fla. 4th DCA 2016).  Award of ultimate decision making reversed when relief not pled and there was no showing of a continuing pattern of hostility that would reasonably would lead one to conclude that the parties would be unable to effectively work together for their children’s best interest.

Songur v. Songur, 41 Fla.L.Weekly D1154 (Fla. 5th DCA 2016).  Trial court erred granting ultimate decision making over educational decisions to Wife without finding that shared parental responsibility would be detrimental to the child.

Moore v. Yahr, 41 Fla.L.Weekly D1132 (Fla. 4th DCA 2016).  Order requiring supervised timeshairng remanded as order failed to provide the specific steps required for party to reestablish unsupervised contact.  Court cannot make supervised timesharing dependent on party paying costs of supervision as that is a cost for child support calculations.

Paternity:

D.O.R. ex. rel. L.M.M. v. A.M., 41 Fla.L.Weekly D1199 (Fla. 2nd DCA 2016).  Trial court erred dismissing paternity action filed by Mother who was married to another man at birth.  Although there is a presumption of legitimacy implicated, under the facts of this case (wife now divorced and judgment found her husband was not the father) it was error to dismiss for failure to state cause of action.

Corio v. Lopez, 41 Fla.L.Weekly D1101 (Fla. 5th DCA 2016).  Trial court erred transferring venue to county defendant resides based on general venue statue.  Paternity venue statute, section 742.021(1) provides action may be brought in county where plaintiff or defendant resides.

Hartsell v. Hartsell, 41 Fla.L.Weekly D1051 (Fla. 1st DCA 2016).  Trial court erred ordering genetic testing in paternity case without finding of good cause.

Procedure:

Minda v. Minda, 41 Fla.L.Weekly D1049 (Fla. 2nd DCA 2016).  Second motion to vacate was not a successive motion when original motion was not adjudicated on the merits.

Support:

Payne v. D.O.R. o/b/o Guitterrez, 41 Fla.L.Weekly D1209 (Fla. 5th DCA 2016).  Trial court reversed for not addressing claim for retroactive alimony.  Alimony award affirmed under circumstances where neither party credible.

Watford v. Watford, 41 Fla.L.Weekly D1167 (Fla. 4th DCA 2016).   Trial Court’s award of alimony and attorney’s fees reversed.  Court did not make necessary alimony findings and based award on Husband’s gross income, as opposed to his net income.

Ivanovich v. Valladerez, 41 Fla.L.Weekly D1069 (Fla. 2nd DCA 2016).  Trial court erred requiring Wife to pay cost of transportation for visitation.  Expenses of visitation are part of child rearing expenses that must be addressed as part of child support calculation.

Temporary Relief:

Perez v. Perez, 40 Fla.L.Weekly D1111 (Fla. 2nd DCA 2016).  Even though temporary relief awards are among those areas in which the trial courts have the greatest discretion, it is improper for trial court to fail to identify which share of the award is for child support and which part is for alimony.

 

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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