Family Law Case Updates – January 2017

Other items of interest:

• Did Obsolete Technology Make me a Better Lawyer?  (Commentator, Winter 2017)
• 1 in 17:  Antisocial Personality Disorder  (ASPD) in Family Court (Commentator, Fall 2016)
• Line in the Sand: Iranian Divorce  (Commentator Spring 2015)
• Stephens’ Squibs Guide to Alimony Reform

Alimony:

Morgan v. Morgan, 42 Fla.L.Weekly D186 (Fla. 4^th DCA 2016).  Trial court affirmed for awarding Wife life estate in marital residence in lieu of alimony and requiring her to be responsible for all expenses with home under the unique circumstances of this case.

Jimenez v. Jimenez, 42 Fla.L.Weekly D177 (Fla. 4^th DCA 2017).  Trial court reversed for providing prospective increase in alimony when child support ends.  Court also failed to consider Wife’s earning capacity, educational skills, vocational skills and employability.

Gardiner v. Gardiner, 42 Fla.L.Weekly D69 (Fla. 2^nd DCA 2016).  Award of one half of marital home to Wife as lump sum alimony reversed when court made no findings award was necessary for support or to effect equitable distribution of marital property.

Viscito v. Viscito, 42 Fla.L.Weekly D43 (Fla. 3^rd DCA 2016).  Trial court affirmed for denying alimony to Husband in a 22 year marriage, because even though Wife had ability, Husband was employable but voluntarily remained unemployed. Husband’s gambling debts and misapplication of marital funds adversely affected family’s financial position and lifestyle.  Because the Husband did not request any other alimony other than permanent, he is now out of luck.

Appeals:

Pratt v. Pratt, 42 Fla.L.Weekly D72 (Fla. 2^nd DCA 2016).  Dismissed portion of appeal dealing with fees as premature because amount had yet to be determined.

Attorneys’ Fees:

Larkin v. Larkin, 42 Fla.L.Weekly D167 (Fla. 5^th DCA 2017).  Trial court erred failing to award fees when parties’ agreed to prevailing party provision and appellant prevailed in only significant issue before the court.

Enforcement:

Raton v. Wallace, 42 Fla.L.Weekly D61 (Fla. 5^th DCA 2016). Trial court affirmed for not holding Wife in contempt for changing child’s court ordered therapist. Former Wife relocated and using the court ordered therapist was not practical. Order did not specify how long they had to use the named therapist.  Former Wife complied with intent of agreement by continuing to take child to therapy.

Equitable Distribution:

Navarro v. Navarro,  42 Fla.L.Weekly D88 (Fla. 1^st DCA 2016).  Trial court reversed for not valuing marital assets and liabilities distributed.  Without such findings, appellate courts are unable to determine whether distribution is equal.

Viscito v. Viscito, 42 Fla.L.Weekly D43 (Fla. 3^rd DCA 2016).  Trial Court affirmed for applying Kaa concerning allocation of passive appreciation of non marital property during marriage.  Detailed discussion.

Name Change:

In Re: The Name Change of Evan James Zimmer, 42 Fla.L.Weekly D112 (Fla. 4^th DCA 2017).  Denial of name change reversed and remanded when order has no findings of fact why name change would further an ulterior or illegal purpose.  Ordinarily, a facially sufficient petition for name change should be granted in absence of a wrongful or fraudulent purpose.

Parenting:

Sedky v. Ibrahim, 42 Fla.L.Weekly D181 (Fla. 4^th DCA 2017).. Final judgment reversed when it provided parties may travel with children to Egypt which conflicted with provision in parenting plan that prohibited with party from taking children to Egypt.

Riddle v. Riddle, 42 Fla.L.Weekly D90 (Fla. 4^th DCA 2016).  Trial court erred modifying temporary custody order without satisfying two pronged test; 1) substantial change of circumstances and 2) finding change is in child’s best interest.

Procedure:

Nunez-Miller v. Miller, 42 Fla.L.Weekly D162 (Fla. 5^th DCA 2017).  Error denying motion to dismiss petition to domesticate and modify foreign decree for improper venue reversed.  Section 41.011 requires actions to establish foreign decree be brought only in the county where the defendant resides, where the cause of action accrued or where the property in litigation is located.  Further 61.13(2)(d) provides proper venue to modify parenting plan is county where either parent and child reside, or county where original parenting plan entered.

Loftis v Loftis, 42 Fla.L.Weekly D160 (Fla. 5^th DCA 2017).  Trial court did not abuse discretion in denying motion to reopen case.  Trial Court should consider whether granting a motion to reopen to present additional evidence would unfairly prejudice the opposing party and whether it would serve the best interest of justice.  Factors to consider whether to reopen the evidence include 1) the timeliness of the motion, 2) the character of the evidence sought to be introduced, 3) the effect of allowing the evidence to be admitted and 4) the reasonableness of the excuse justifying the request to reopen.

Pinnock v. Whyte, 42 Fla.L.Weekly D78 (Fla. 3^rd DCA 2016).  Error to proceed to final hearing on order that provided status conference and final hearing if no answer filed.  Here party filed answer so proceeding to final hearing violated due process.

Naime v. Corzo, 42 Fla.L.Weekly D38 (Fla. 3^rd DCA 2016).  Trial court abused discretion including a provision that the minor child cannot be relocated outside the county when that relief was neither requested in the pleadings or tried by consent.

Protective Injunctions:

Carter v. Malken, 42 Fla.L.Weekly D120 (Fla. 4^th DCA 2017).  Injunction against stalking reversed when petitioner failed to prove two incidents of harassment.

Relocation:

Horn v. Horn, 42 Fla.L.Weekly D175 (Fla. 1^st DCA 2017).  Provision in final judgment allowing Husband the authority to relocate child anywhere in the United States without the Wife’s consent or court approval reversed because it allows a future relocation without compliance with 61.13001 and the future circumstances of minor child.

Eddie Stephens is an equity 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 and dozens of trials, Stephens has honed his practice by making straightforward arguments that bring opposing sides closer together in order to find a successful resolution.