Stephens’ Squibs – September 2016

Agreements:

Colino v. Colino, 41 Fla.L.Weekly D1990 (Fla. 5th DCA 2016).  Trial court erred awarding Wife real estate when prenuptial agreement provided it goes to the spouse whose name property is titled in, which in this case was the Husband.

Alimony:

Lostaglio v. Lostaglio, 41 Fla.L.Weekly D2146 (Fla. 5th DCA 2016).    Trial court affirmed for rejecting Husband’s argument the Wife’s adultery should be an alimony factor when there was no showing of depletion of assets.

Brezault v. Brezault, 41 Fla.L.Weekly D2067 (Fla. 4th DCA 2016).  Trial court erred by awarding alimony that exceeded Former Husband’s deficit and failed to make necessary findings of fact.

Bork v. Bork, 41 Fla.L.Weekly D2058 (Fla. 1st DCA 2016).  Trial court erred calculating amount of alimony when it included husband’s temporary alimony obligation, which will not be paid after entry of final judgment, as a deduction from Husband’s gross income.

Shaver v. Shaver, 41 Fla.L.Weekly D1945 (Fla. 2nd DCA 2016).  Final judgment awarding alimony reversed when not supported by competent evidence. Trial court also erred when  duration announced in oral pronouncement was different from written judgment.

Appeals:

Shufelt v. Shufelt, 41 Fla.L.Weekly D201997 (Fla. 2nd DCA 2016).  Even though judge signed Wife’s proposed judgment without providing Husband opportunity to comment, review or object to the proposed judgment, this did not rise to reversible error as the Husband did not meet his burden to establish there was an inconsistency in oral pronouncement or judgment was not supported by competent evidence.  Further, issue of unequal distribution was not preserved when Husband did not seek rehearing.

Attorneys’ Fees:

Cherry v. Viker, 41 Fla.L.Weekly D2057 (Fla. 1st DCA 2016).  Award of fees reversed because attorneys offered argument as opposed to evidence of abilities.

Rogers v. Wiggins, 41 Fla.L.Weekly D1947 (Fla. 2nd DCA 2016).  Fees awarded in favor of Husband because Wife was “selfish” and failed to act in child’s best interest reversed as it is error to assess attorneys’ fees against a party with no ability even though that party may have engaged in meritless litigation.  Conduct did not rise to “egregious” which could give rise to Court’s inherent authority to award attorneys fees.

Enforcement:

Browne v. Blanton-Browne, 41 Fla.L.Weekly D2156 (Fla. 1st DCA 2016).  Trial court erred in issuing writ of bodily attachment after Respondent failed to appear at a contempt hearing when notice of hearing did not include appropriate warning he could be incacerated.  Court also did not have any evidence to support purge finding.

Equitable Distribution:

Sweeney v. Sweeney, 41 Fla.L.Weekly D1997 (Fla. 2nd DCA 2016).  Trial court erred by double dipping and crediting the Wife twice for the payment of taxes.

Ridings v. Ridings, 41 Fla.L.Weekly D1968 (Fla. 4th DCA 2016).  Trial court erred by ordering liabilities to be “equally split” without identifying each specific liability and which spouse is responsible for each liability.

Shaver v. Shaver, 41 Fla.L.Weekly D1945 (Fla. 2nd DCA 2016).  Error to charge depleted assets to a party when no misconduct asserted.

Imputation of Income:

Koscher v. Koscher, 41 Fla.L.Weekly D2161 (Fla. 4th DCA 2016).  Award of $100 per month alimony in 30 year marriage, where family had personal expenses of $30k per month and Husband who was voluntarily unemployed for several years before trial had a history of earning $450k – $1.1mil per year.  Reversed and remanded to impute income to Husband.

Injunctions:

Ceelen v. Grant, 41 Fla.L.Weekly D2152 (Fla. 2nd DCA 2016).  Respondent denied due process when trial court prohibited respondent from putting on evidence why he texted petitioner 200 times (i.e. he was concerned of her relapse).

Klemple v. Gagliano, 41 Fla.L.Weekly D2009 (Fla. 4th DCA 2016).  Stalking injunction between two battling neighbors reversed.  Detailed factual analysis.

Mitchell v. Mitchell, 41 Fla.L.Weekly D1960 (Fla. 4th DCA 2016).  Injunction against domestic violence reversed because record lacked evidence petitioner’s imminent fear was objectively reasonable.  Verbal violence, mental instability, a bad temper, depressive and suicidal statements, angry messages and conditional future threats without overt acts are insufficient to support a finding of imminent fear of domestic violence.

Modifications: 

Rosenthal v. Rosenthal, 41 Fla.L.Weekly D2119 (Fla. 1st DCA 2016).  Trial court improperly dismissed alimony modification action by improperly concluding alimony set by agreement was not modifiable.  There was no provision waiving the right to modify alimony in accordance with Florida Law in the divorce settlement agreement.

Paternity:

Flynn v. McCroney, 41 Fla.L.Weekly D2159 (Fla. 1st DCA 2016).  Trial court properly dismissed paternity action brough when child was born into an intact marriage.

ADA v. DMF, 41 Fla.L.Weekly D2061 (Fla. 4th DCA 2016).  Bizarre Privette paternity case.  Because acknowledgment of paternity was fraudulent, biological Father’s rights were not eliminated.

Procedure:

In Re: Amendments to Fl. S.C. Approved Family Law Forms, 41 Fla.L.Weekly S411 (Fla. 2016).  Adopts new name change forms to add requisite questions if petitioner is a sexual offender.

Anderson v. Anderson, 41 Fla.L.Weekly D2147 (Fla. 5th DCA 2016).  An incarcerated prisoner involved with civil litigation has the right to be heard.  In this case, appellant denied due process when he missed a hearing through no fault of his own.

Medina v. Haddad, 41 Fla.L.Weekly D2033 (Fla. 3rd DCA 2016).  Trial court erred ordering “therapeutic evaluation” of minor child when the child’s mental health not at issue and no good cause shown.  This type of evaluation amounted to a compulsory psychological evaluation of the child.

Support:

Liguori v. Liguori, 41 Fla.L.Weekly D2116 (Fla. 2nd DCA 2016).  Temporary support may be awarded retroactive to the date spouse left residence as opposed to date motion is filed.

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Eddie Stephens is a partner in Ward Damon located in West Palm Beach, FL. Mr. Stephens was admitted to the Florida Bar in 1997 and is Board Certified in Family and Marital Law.  After starting his career as an attorney for the Palm Beach County Property Appraiser’s Office, Stephens has developed a successful family law practice focused on highly disputed divorces. Through hundreds of hearings of trials, Stephens has honed his practice by making straightforward arguments that bring opposing sides closer together in order to find a successful resolution.

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