Stephens’ Squibs – May 2017

Alimony:

Hua v. Tsung, 42 Fla.L.Weekly D1019 (Fla. 4th DCA 2017).  Trial court erred not applying rebuttable presumption in favor of permanent alimony in 17 ½ year marriage.   In almost every case involving one spouse who has historically been the homemaker in a long term marriage and a subsequent disparity in income.

Hanson v. Hansom, 42 Fla.L.Weekly D977 (Fla. 2nd DCA 2017).  Court erred basing alimony on Husband’s gross income, as opposed to net.

Appeals:

Stephens v. Whittaker, 42 Fla. L. Weekly D961 (Fla. 5th DCA 2017).  Errors not raised in initial brief are waived.

Attorneys’ Fees:

Hanson v. Hansom, 42 Fla.L.Weekly D977 (Fla. 2nd DCA 2017).  Trial court erred awarding attorneys’ fees after equalizing parties’ income and net worth.

Collaborative Law:

In re: Amendments to 4-1.19 and 12.745, 42 Fla.L.Weekly S96 (Fla. 2017).  New Collaborative rules.

Equitable Distribution:

Martinez v. Martinez, 42 Fla.L.Weekly D1145 (Fla. 5th DCA 2017).  Two year limitation on marital waste statute (F.S. 61.075(1)(j)) does not act as a bar to claim.  For waste older than two years, court may consider remote dissipation in fashioning equitable distribution scheme.  If it is within two years, court must charge it against other party.

Henry v. Lyons, 42 Fla.L.Weekly D1117 (Fla. 4th DCA 2017).  Error to base value of asset on attorney’s representation without any evidence.

Rosaler v. Rosaler, 42 Fla.L.Weekly D1061 (Fla. 4th DCA 2016).  Parties stipulated they would sell a diamond, the proceeds to be used to pay wife’s attorney and accountant, and court reserved jurisdiction to determine if it is incident to support or property division at final hearing.  Court erred by charging it against wife’s equitable distribution without any findings addressing Wife’s motion for temporary relief.

Gotro v. Gotro, 42 Fla.L.Weekly D1045 (Fla. 1st DCA 2017).  Trial court erred valuing marital account at time of filing ($8.2 million) instead of date of final hearing ($2.4 million) when monies used for support and no findings of marital waste.

Hua v. Tsung, 42 Fla.L.Weekly D1019 (Fla. 4th DCA 2017).  Trial court erred classifying business Husband’s father transferred Husband to avoid death tax.  Court’s don’t impose constructive trusts when parties are attempting to evade taxes.  Trial court also erred when it directed parties to repay Husband’s father from proceeds from sale of residence.  Trial court does not have jurisdiction to adjudicate property rights of non-parties.

Ziruolo v Ziruolo, 42 Fla.L.Weekly D986 (Fla. 1st DCA 2017).  Trial Court erred distributing debt to Husband because he had a higher income.  This is not a justification for unequal distribution.

Grandparent Visitation:

Downs v. Ledoux-Nottingham, 42 Fla.L.Weekly D1146 (Fla. 5th DCA 2017).  Trial court erred denying grandparent’s make up time when they had timesharing pursuant to a Colorado judgment subject to the commands of the full faith and credit clause.

Injunctions:

Alston v. Haines, 42 Fla.L.Weekly D1040 (Fla. 5th DCA 2017).  Trial court erred summarily denying incarcerated respondent’s motion to dissolve based on changed circumstances (i.e. no longer a threat due to long term incarceration, injunction effects respondent’s privileges) .  Error to deny evidentiary hearing.

Modification:

Darwin v. Robinson, 42 Fla.L.Weekly D1048 (Fla. 1st DCA 2017).  Trial court erred modifying support 2 years after parties reached agreement because there is a heavier burden to modify when original amount arrived by agreement.

Parenting:

Ziruolo v Ziruolo, 42 Fla.L.Weekly D986 (Fla. 1st DCA 2017).  Trial court erred awarding sole parental responsibility without and findings or justification.  Trial court also erred in failing to use child support guidelines in determining support.

Paternity:

DOR v. MJM, 42 Fla. L.Weekly D971 (Fla. 2nd DCA 2017).  Mother telling Father he was not child’s real father after judgment entered was newly discovered evidence which satisfies disestablishment requirement.  Certifies conflict with Hooks v Quaintance, 71 So.3d 908 (Fla. 1st DCA 2011) which provides if father does not request paternity test during initial proceedings, that claim is waived.

Procedure:

Isnord v. Isnord, 42 Fla.L.Weekly D1009 (Fla. 4th DCA 2017).  Trial court did not err dismissing action after 120 days when the petitioner did not attempt service by publication.

Support:

RM v RC, 42 Fla.L.Weekly D1135 (Fla. 2nd DCA 2017).  Child support amount reversed when no calculation worksheet attached or findings of fact on how determined.

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