Stephens’ Squibs – October 2017

Appeals:

Brock v. Brock, 42 Fla.L.Weekly D2147 (Fla. 1st DCA 2017).  Issues raised on appeal are waived if not brought to court’s attention at final hearing or motion for rehearing.

Frost v. Frost, 42 Fla.L.Weekly D2141 (Fla. 1st DCA 2017).  Former Wife did not preserve error of court failing to provide steps to regain timesharing because the wife failed to file a rehearing.  Failure for court to adopt parenting plan is not fundamental error.

Foster v. Foster, 42 Fla.L.Weekly D2120 (Fla. 1st 2017).  Without a transcript of the hearing or an approved statement of the evidence, appellate courts have no way to evaluate clams.

Viker v. Cherry, 42 Fla.L.Weekly D2070 (Fla. 1st DCA 2017).  Motion for rehearing is unauthorized and does not toll the time to file for appeal.

Equitable Distribution:

Goodman v. Goodman, 42 Fla.L.Weekly D2180 (Fla. 2nd DCA 2017).  Trial court failed to make any findings as to extent trial court relied on husband’s stock options as income for determination of alimony and support or assets for property distribution.  If court treats stock options as asset to distribute, it cannot treat same option as income when calculation alimony.  Remanded for clarification.

Betts v. Betts, 42 Fla.L.Weekly D2178 (Fla. 2nd DCA 2017).  Trial court erred giving husband dollar for dollar credit for contributions he made towards wife’s non-marital property.  He should be entitled to one-half principal pay down.

Schroll v. Scroll, 42 Fla.L.Weekly D2144 (Fla. 1st DCA 2017). Trial court reversed for valuing accounts at time of filing when fund was depleted during the pendency for marital purposes, there was no finding of waste and investments declined in value due to passive market fluctuations.

Income:

Broga v. Broga, 42 Fla.L.Weekly D2151 (Fla. 1st DCA 2017).  Trial court erred imputing $80,000 when vocational expert did not present any evidence how husband can earn that amount while exercising 50/50 timesharing which was already agreed to.

Injunctions:

Garcia v. R.A.G., 42 Fla.L.Weekly D2292 (Fla. 5th DCA 2012).  Incarcerated respondent filed motion to dissolve injunction and motion to appear telephonically. Instead of granting motion to appear by phone, court issued order of hearing with 48 hours’ notice and requiring both parties to be present.  Respondent did not receive order setting hearing until after hearing was concluded. Respondent filed a 12.540 motion to set aside based on lack of notice. Trial court erred summarily denying 12.540 motion without allowing evidentiary hearing.

Name Change:

Neville v. McKibben, 42 Fla.L.Weekly D2119 (Fla. 1st DCA 2017).  Trial Court’s judgment changing child’s name reversed.  A name change is proper only when the record affirmatively shows the change is required for the welfare of the child.  If only conclusory assertions are provided in the records, the issue should be ordinarily resolved against the party having the burden of proof, the proponent of the change.  A name change shall not be based on a finding of paternity alone.

Parenting:

Dukes v. Griffin,  42 Fla.L.Weekly D2151 (Fla. 1st DCA 2017).  Trial court affirmed for modifying final judgment and providing father with majority time sharing.  Trial court not required to provide steps for mother to regain timesharing.  Conflicts with Perez, 160 So.3d 459 & Witts-Bahls, 193 So.3d 35.  Conflict certified.

Neville v. McKibben, 42 Fla.L.Weekly D2119 (Fla. 1st DCA 2017).  Award of sole parental responsibility reversed when there was no evidence Mother’s decisions about immunizations, chiropractic care, co-sleeping with child, duration of breast feeding, use of amber bead necklaces for teething pain were contrary to medical care or dangerous to the child.

Paternity:

L.G. v. D.C.F., 42 Fla.L.Weekly D2156 (Fla. 4th DCA 2017)  Trial court erred denying motion to disestablish paternity based on erroneous belief that another father must be willing to establish paternity for petition to be granted.

Perkins v. Simmonds, 42 Fla.L.Weekly D2104 (Fla. 4th DCA 2017).  Court erred dismissing biological dad’s petition for paternity in child born of intact marriage.  There is a rebuttable presumption that bio dad has standing if “common sense and reason outraged” if not allowed to participate.  In this case, child given bio dad’s last name, Mom represented she was getting divorced, bio dad had financially supported child and had a close relationship with child.

Y.R.P. v. M.H. & O.R., 42 Fla.L.Weekly D2093 (Fla. 2nd DCA 2017).  Bio dad had right to intervene in dependency case involving disestablishment of legal father’s paternity on child born out of wedlock.

Procedure:

West v. West, 42 Fla.L.Weekly D2294 (Fla. 5th DCA 2017).  Trial court erred adopting one party’s one-sided proposed judgment, especially when the judge did not orally announce findings or rulings during or at the end of trial due to appearance of impropriety.

Duncan v. Brickman, 42 Fla.L.Weekly D2272 (Fla. 2nd DCA 2017).  Trial court erred modifying a custody order as a sanction for contempt.  Further, order rendered three years after hearing cannot stand as a matter of judicial discretion.

Bailey v. Bailey, 42 Fla.L.Weekly D2187 (Fla. 1st DCA 2017).  Trial court erred ordering transportation costs to be equally divided when issue not raised in pleadings nor tried by consent.

Kohl v. Estate of Kohl, 42 Fla.L.Weekly D2108 (Fla. 4th DCA 2017).  Trial court erred dismissing a 12.540 action filed a year after judgment issued when based on fraudulent financial affidavit.

Lukacs v. Ice, 42 Fla.L.Weekly D2088 (Fla. 1st DCA 2017).  Trial court affirmed for entering wife’s proposed judgment verbatim as its own.  Reversal only required when finding in judgment is inconsistent with oral pronouncement, where appearance of impropriety so permeated the proceedings as to justify suspicion of unfairness or where record does not reflect the trial court’s independent decision on the issues of the case.

Kuchera v. Kuchera, 42 Fla.L.Weekly D2048 (Fla. 4th DCA 2017).  Wife waived right to determine alimony arrears when matter was litigated, not addressed and wife failed to raise issue in rehearing or appeal.

In re: Amendments to the Fla. Family Law Rules of Pro., 42 Fla.L.Weekly S834 (Fla. 2017).  Changes a number of rules.  Eliminates mandatory case management conference in adoptions, requires compliance with Fl.R.Jud.Admin 2.425 regarding sensitive information, taking judicial notice in family matters and other items.

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