Family Law Case Updates – December 2016

Alimony:

Carter v. Carter, 41 Fla. L. Weekly D2750 (Fla. 1^st  DCA 2016).  Trial court’s finding of alimony arrears not based on competent and substantial evidence and Court’s order contains no findings how it arrived at that amount.

Harris v. Harris, 41 Fla. L. Weekly D2698 (Fla. 5^th DCA 2016).  Trial court erred including Wife’s voluntary contributions to her adult child from another relationship and grandchild in her needs for alimony.  Remanded for court to determine Wife’s actual individual need.

Appeals:

Saleh v. Saleh, 41 Fla.L.Weekly D2789 (Fla. 2789).  Trial court awarded portion of Wife’s retirement to the Husband even though she waived interest in prenuptial agreement.  However, Husband did not raise issue on rehearing so error was waived.

Cranney v. Cranney, 41 Fla.L.Weekly D2753 (Fla. 2nd DCA 2016).  Award of 25% timesharing to Father affirmed when there was no transcript of the proceedings.  Appellate court cannot resolve the underlying factual issues in order to determine whether the trial court’s judgment on issue of timesharing without evidentiary support.   Must affirm under these circumstances unless error results in miscarriage of justice.

Equitable Distribution:

Nelson v. Wiltgen, 41 Fla.L.Weekly D2786 (Fla. 2^nd DCA 2016).  Trial court erred classifying as a marital residence a residence that was initially titled as Husband and wife and transferred into an irrevocable trust with the Wife as beneficiary during the marriage.

Harris v. Harris, 41 Fla. L. Weekly D2698 (Fla. 5^th DCA 2016).  Trial court erred granting ½ of marital enhancement of marital residence to husband which conflicted with granting Wife sole ownership of residence.

Income:

Saucier v. Nowak, 200 So.3d 1298 (Fla. 5^th DCA 2016).  Trial court erred imputing minimal wage income to Wife which conflicted with Court’s oral pronouncements he would impute more and evidence that Wife could work as full time phlebotomist.

Injunctions:

Carrillo v. Carrillo, 41 Fla. L. Weekly D2740 (Fla. 5^th DCA 2016).  Error to issue injunction based on evidence in related cases without properly taking judicial notice.

Peaslee v. Perrine, 41 Fla. L. Weekly D2522 (FLA. 1^ST DCA 2016).  Error to summarily deny legally sufficient motion to modify or dissolve without an evidentiary hearing.

Battaglia v. Thompson,  41 Fla. L. Weekly D2501 (Fla. 2^nd DCA 2016).  DV injunction reversed.  Isolated incident of domestic violence that occurred years before petition filed will not usually support the issuance of an injunction in absence of additional allegations.  Mental instability, a bad temper, depressive and suicidal statements, angry messages, vague actions and conditional future threats without overt action implying imminence are legally insufficient to support entry of inunction.

Parenting:

Koch v. Koch, 41 Fla. L. Weekly D2701 (Fla. 1^st DCA 2016).  Trial court affirmed for prohibiting Father from “discussing ANY religious matters with children” because there was a clear, affirmative showing that the religious activities at issue were harmful to children.  Normally, restrictions against parent’s right to expose children to their religious beliefs unless there is a clear affirmative showing that religious activity at issue is harmful to child.

Sedky v. Ibrahim, 41 Fla. L. Weekly D2665 (Fla. 4^th DCA 2016).  Final judgment that prohibited minor child’s travel to Egypt that conflicted with provision in parenting plan that allowed parties to travel to Egypt with consent remanded for clarification.

Procedure:

Bahl v. Bahl, 41 Fla. L. Weekly D2727 (Fla. 2^nd DCA 2016).  Trial court erred granting an emergency ex parte motion to transfer custody.  Father is entitled to notice and this was not an emergency.

Isan v. Isan, 41 Fla. L. Weekly D2705 (Fla. 5^th DCA 2016).  Order denying recusal of trial judge reversed when it was alleged trial judge had several ex parte communications with opposing counsel shortly before final judgment entered.  This is sufficient on its face to demonstrate that a reasonably prudent person would be in fear of not receiving a fair and impartial trial.

Clark v. Clark, 41 Fla. L. Weekly D2687 (Fla. 1^st DCA 2016).  Trial court abused discretion failing to continue hearing when party received less then a week’s notice and did not have the opportunity to prepare.

Sawaya v. Thompson, 41 Fla. L. Weekly D2665 (Fla. 4^th DCA 2016).  Trial court erred summarily denying modification, motion in limine, and motion to enjoin without an evidentiary hearing.  The purpose of the evidentiary hearing is to allow a party to have a fair opportunity to contest factual issues.  It is reversible error for a trial court to deny a party an evidentiary hearing to which it is entitled.

Boehm v. Boehm, 41 Fla. L. Weekly D2657 (Fla. 2^nd DCA 2016).  Trial court erred summarily denying former husband’s modification after indicating it would be heard “at the appropriate time”.

Mckay v. McElhiney, 41 Fla. L. Weekly D2627 (Fla. 2^nd DCA 2016).  Judgment entered seven months after final hearing that made no findings of fact and failed to address several issues remanded for new proceedings.

Support:

Murphy v. Murphy, 41 Fla. L. Weekly D2618 (Fla. 5^th DCA 2016).  Error not to allocate expense of uncovered health expense.

UCCJEA:

Earney v. Quiloan, 41 Fla. L. Weekly D2738 (Fla. 5^th DCA 2016).  Trial Court erred exercising emergency jurisdiction under 61.517(1) without having a recorded call with the Judge in the home state.