Family Law Case Updates – June 2016

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Alimony:

Kruse v. Levesque, 41 Fla.L.Weekly D1391 (Fla. 2nd DCA 2016).  Trial court abused discretion by failing to award permanent alimony in 11 year marriage when wife was disabled and unable to return to work.

Stark v. Stark, 41 Fla.L.Weekly D1256 (Fla. 5th DCA 2016).  Trial court abused discretion awarding a mixture of $4,900 / month durational alimony for 9 years and $100 / month permanent alimony when there were no findings as to what would happen in nine years.

Maciekowich v. Maciekowich, 41 Fla.L.Weekly D1244 (Fla. 4th DCA 2016).  Trial court erred awarding Wife $1 per year in alimony even without a transcript when the Court failed to make adequate findings as to her needs.

Appeals:

Benevides v. Reese, 41 Fla.L.Weekly D1328 (Fla. 5th DCA 2016).  Judgment affirmed when appellant failed to provide transcript that would allow meaningful review.

Lowery v. Carney, 41 Fla.L.Weekly D1326 (Fla. 1st DCA 2016).  Mother’s due process argument fails when she said she did not receive notice of hearing but failed to produce the transcript where she told the Court what address to send notice to.  Trial court’s finding wife had notice clothed with presumption of correctness.

Attorneys’ Fees:

Powers v. Powers, 41 Fla.L.Weekly D1387 (Fla. 2nd DCA 2016).  Denying motion for fees by stating “court finds no basis to award either party fees” is insufficient as it fails to provide any necessary findings as to the parties’ needs and abilities.

Enforcement:

Hurst v. Hurst, 41 Fla.L.Weekly D1393 (Fla. 5th DCA 2016).  Order of contempt entered on emergency basis without evidentiary hearing reversed as it deprived husband of due process.

Equitable Distribution:

Storey v. Storey, 41 Fla.L.Weekly D1291 (Fla. 4th DCA 2016).  Former Wife was not entitled to pension survivor benefits and cost of living increases in marital pension when settlement agreement made no mention of them.

Income:

Edge v. Edge, 41 Fla.L.Weekly D1401 (Fla. 2nd DCA 2016).  Error to base finding of husband’s income when he testified he received a raise.  Also error to deduct from gross income repayment of 401(k) loan as mandatory retirement contribution.

Injunctions:

Moriarty v. Moriarty, 41 Fla.L.Weekly D1312 (Fla. 4th DCA 2016).  Trial court properly denied motion to dissolve D.V. injunction when it did not allege a change in circumstances, but challenged initial procurement.

Fye v. Bennett, 41 Fla.L.Weekly D1240 (Fla. 4th DCA 2016).    Summary denial of stalking injunction reversed as sufficient allegations were pled.  Section 784.0485, Florida Statutes, creates a civil cause of action, which allows a victim of stalking to seek an injunction for protection. “A person who willfully, maliciously, and repeatedly follows, harasses, or cyberstalks another person commits the offense of stalking. To “harass” is defined as “engag[ing] in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” A “course of conduct” is defined as “a pattern of conduct composed of a series of acts over a period of time, however short, which evidences a continuity of purpose.” When determining whether a victim has suffered substantial emotional distress, courts apply a reasonable person standard rather than a subjective standard.

David v. Schack, 41 Fla.L.Weekly D1239 (Fla. 4th DCA 2016).  Final injunction of stalking reversed when respondent not provided an opportunity to prove or disprove allegations made in the complaint.

Smith v. Wiker, 41 Fla.L.Weekly D1222 (Fla. 2nd DCA 2016).  Prohibition on respondent not to “linger” in his own driveway to protect his neighbor from stalking was too broad of a restriction.

Life Insurance:

Shulstad v. Shulstad, 41 Fla.L.Weekly D1219 (Fla. 2nd DCA 2016).  Trial court erred requiring $750,000 for life insurance to insure support when evidence as to availability was for $500,000 for coverage.

Modifications:

D.A.D. v. J.S., 41 Fla.L.Weekly D1386 (Fla. 2nd DCA 2016).  Trial court erred modifying judgment when awarded modifications were not before court in a pleading.

Paternity:

A.D.A. v. M.J.L., 41 Fla.L.Weekly D1374 (Fla. 4th DCA 2016).  Section 742.091 (putative father) does not apply to a man who married women after child was born.  Lengthy discussion including Privette.

Procedure:

Haritos v. Haritos, 41 Fla.L.Weekly D1403 (Fla. 2nd DCA 2016).  Temporary support order was not merged into a final judgment that dissolved marriage but reserved jurisdiction to determine all other issues.

Support:

McWilson v. McWilson, 41 Fla.L.Weekly D1381 (Fla. 1st DCA 2016).  Trial court erred basing income on something other than what was declared on Wife’s last financial affidavit without explanation.  Travel expenses must also be awarded based on pro rata share of family income.

Carlson v. Carlson, 41 Fla.L.Weekly D1307 (Fla. 4th DCA 2016).  Trial court could not impute income based upon gifts from family when no evidence or testimony was presented that gifts would continue.

Cilenti v. Cilenti, 41 Fla.L.Weekly D1277 (Fla. 2nd DCA 2016).  Trial court erred determining child support because health insurance premium for child exceeded 5% of wife’s gross income and court made no findings explaining deviation.  Section 61.13(1)(b) provides every child support order shall contain a provision for health insurance for minor child when insurance is reasonable and accessible.  The statute presumes the cost of health insurance is reasonable when it does not exceed 5% of the gross income of the parent providing coverage.

Valdes v. Valdes, 41 Fla.L.Weekly D1239 (Fla. 4th DCA 2016).  Trial court erred in calculating number of overnights in determining support.

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.