Family Law Case Updates – December 2018

*Edited by Caryn Stevens, Esquuire.

Agreements:

Walsh v. Walsh, 43 FL.L.Weekly D2779 (Fla. 5^th DCA 2018). Trial Court erred in interpreting the definition in parties’ agreement that alimony is based on Husband’s periodic income, to mean it excluded incentive-based bonus payments. Further, Court erred denying attorney’s fees based on fact that Husband did not violate agreement, without considering need and ability.

Appeals:

DOR v. Ezeta, 43 FL.L.Weekly D2691 (Fla. 3^rd DCA 2019). Modification affirmed. DOR, who intervened, failed to preserve error of hearing that turned into defacto settlement conference resulting in agreed modification that DOR participated in.

Cammarata v. Cammarata, 43 FL.L.Weekly D2647 (Fla. 4^th DCA 2018). Orders referring post-judgment support petition to Magistrate and for mediation is a Non-Final Order that is Non-Appealable.

Attorneys’ Fees:

Subramanian v. Subramanian, 43 FL.L.Weekly D2681 (Fla. 5^th DCA 2018). Trial Court did not violate parties’ due process by awarding attorney’s fees for vexatious litigation, when party failed to object when fees presented at hearing and thus matter was tried by consent.

Reidy v. Reidy, 43 FL.L.Weekly D2654 (Fla. 4^th DCA 2018). Trial Court lacks jurisdiction to entertain where it has not been timely perfected, that is, filed before the Court lost jurisdiction through settlement, dismissal or Final Judgment.

Enforcement:

Schroll v. Schroll, 43 FL.L.Weekly D2795 (Fla. 1^st DCA 2018).  Trial Court cannot convert an equitable distribution payment into something enforceable by contempt by characterizing it as an obligation to perform a specific act.

Kenney v. Goff, 43 FL.L.Weekly D2735 (Fla. 4^th DCA 2018). Trial Court erred classifying lump sum rehabilitation alimony as equitable distribution, when record demonstrated it was independent from equitable distribution, and not in exchange for property rights.

Portwood v. Portwood, 43 FL.L.Weekly D2675 (Fla. 5^th DCA 2018). Trial Court erred denying second motion for contempt based on Res Judicata. Second motion sought enforcement of a different type of alimony sought in original motion, therefore, there was no “identity of cause of action.”

Equitable Distribution

Brio v. Brio, 43 FL.L.Weekly D2765 (Fla. 2^nd DCA 2018). Trial Court erred requiring LLC, owned by party, to sell real property when LLC was not party to lawsuit.

Palmateer v. Palmateer, 43 FL.L.Weekly D2690 (Fla. 2^nd DCA 2018). Trial Court reversed for issuing income withholding order against municipal pension plan for purposes of enforcing equitable distribution.

Injunctions:

Tate v. Tate, 43 FL.L.Weekly D2766 (Fla. 2^nd DCA 2018). Brother sneaking into sister’s unoccupied house and stealing her two cats was insufficient to support entry of domestic violence injunction.

Llanos v. Llanos, 43 FL.L.Weekly D2704 (Fla. 3^rd DCA 2018). Trial Court erred requiring parties to stalking injunction who had child to submit to genetic paternity testing. Court cannot order genetic testing unless: (1) proceedings place paternity in controversy; and (2) good cause exists for testing.

Modification

Puhl v. Puhl, 43 FL.L.Weekly D2634 (Fla. 4^th DCA 2018). Modification granting change in decision-making reversed. Even when mom does not keep dad apprised of child’s activities, but the father has ability to be informed, such evidence establishes a communication problem which does not constitute a change of circumstances for purposes of modification.

Parenting:

Seligsohn v. Seligsohn, 43 FL.L.Weekly D2637 (Fla. 4^th DCA 2018). Trial court erred in providing husband with ultimate decision-making on all issues. When the court orders shared parenting, giving one party ultimate decision-making over specific matters is appropriate in a situation where parents are unable to come to an agreement.

Procedure:

In Re: Amendments to Florida Family Law Rule of Procedure 12.407, 43 FL.L.Weekly S637 (Fla. 2018). Rule on testimony of minor children amended.

Wright v. Wright, 43 FL.L.Weekly D2708 (Fla. 5^th DCA 2018). Trial judge who provides party with suggestions on how to proceed should be disqualified. Trial judge serves as neutral arbiter in proceedings, and should not enter the fray by offering “tips” to either side.

Greenshields v. Greenshields, 43 FL.L.Weekly D2676 (Fla. 5^th DCA 2018). Trial Court erred freezing Wife’s proceeds from sale of property pending resolution of other issues, as this is inappropriate injunctive relief.

Seligsohn v. Seligsohn, 43 FL.L.Weekly D2637 (Fla. 4^th DCA 2018). Trial Court erred requiring party to sale their homestead property to pay fee of guardian ad litem.

Temp Relief:

Erskine v. Erskine, 43 FL.L.Weekly D2784 (Fla. 1^st DCA 2018). Trial Court reversed for award undifferentiated  support as Temporary Relief