Stephens’ Squibs – June 2019

Stephens’ Squibs is edited by Caryn Stevens.

Alimony:

Molina v. Perez, 44 Fla.L.Weekly D1558 (Fla. 3d DCA 2019). Trial court erred awarding durational alimony instead of permanent alimony in 20-year marriage. Final Judgment finds vocational report indicated wife would be able to increase her income, but vocational report was not in record.

Shaw v. Shaw, 44 Fla.L.Weekly D1412 (Fla. 2d DCA 2019). Trial court erred in failing to award wife nominal permanent alimony in 28-year marriage where wife was a licensed veterinarian, but only worked part-time during marriage. Trial court should have awarded nominal permanent alimony to allow wife to have ability to increase alimony if she is unable to secure employment after using her best efforts.

Child Support:

Smith v. Smith, 44 Fla.L.Weekly D1470 (Fla. 1st DCA 2019). Modifications are generally retroactive to the date petition for modification is filed. But F.S. section 61.30(11)(c) provides an exception allowing retroactivity “to the date the noncustodial parent first failed to regularly exercise the court-ordered or agreed timesharing schedule.”

Walker v. Walker, 44 Fla.L.Weekly D1411 (Fla. 2d DCA 2019). Trial court erred by not extending child support to high school graduation when there was a reasonable expectation of child graduating by 19th birthday.

Discovery (Corrected Opinion):

Hall v. Hall, 44 Fla.L.Weekly D1543 (Fla. 5th DCA 2019). Trial court erred granting non-party’s motion for protection. Husband is entitled to reasonable discovery from non-party so he may seek to determine and offer evidence at trial of the wife’s ongoing ownership interest in the third party.

Equitable Distribution:

Mortin v. Mortin, 44 Fla.L.Weekly D1585 (Fla. 1st DCA 2019). Trial court affirmed in finding portion of husband’s pension that was attributed to a period of service prior to parties’ marriage was martial, because those years of service had no retirement value until they were “purchased” with martial funds during the marriage to apply toward appellant’s pension. Case of first impression.

Griffin v. Griffin, 44 Fla.L.Weekly D1477 (Fla. 1st DCA 2019). Trial court erred distributing $72,000 of workers comp proceeds to husband when amount was depleted to $6,400 at time of hearing with no findings of waste.

Enforcement:

Accardi v. Accardi, 44 Fla.L.Weekly D1491 (Fla. 4th DCA 2019). Issuing a writ of arrest based upon the former husband’s future noncompliance to make his alimony payments is improper, as civil contempt orders may not provide for incarceration based upon future, anticipated noncompliance with a court’s periodic support order.

Alonso v. De Zarraga, 44 Fla.L.Weekly D1390 (Fla. 3d DCA 2019). Trial court cannot impose a $12,500 fine with no purge as remedy for civil contempt. If Court imposed fine as an indirect criminal contempt, then criminal safeguards need to be complied with.

Imputation:

Horowitz v. Horowitz, 44 Fla.L.Weekly D1382 (Fla. 2d DCA 2018). Trial court erred in imputing income to wife immediately when husband’s vocational expert said it would take wife 6 months of therapy before she could work full-time. Fact that wife did not seek therapy during pendency of divorce cannot be used against her if she was not ordered to attend therapy.

Modification:

Hollis v. Hollis, 44 Fla.L.Weekly D1569 (Fla. 2d DCA 2019). A 47 mile move in residence by one parent, alone, is not a substantial change of circumstances warranting a modification.

Holder v. Lopez, 44 Fla.L.Weekly D1473 (Fla. 1st DCA 2019). Error to impute income without evidence to 65-year-old truck driver who retired with multiple health ailments. Retirement is a changed circumstance warranting reconsideration of alimony.

Schot v. Schot, 44 Fla.L.Weekly D1367 (Fla. 4th DCA 2019). Modification granting equal timesharing and ultimate medical decision making to dad affirmed when mother failed to provide child’s medical diagnosis to father, gave father improper medical directions to care for child, would overfeed the child and give the child laxatives so child would have explosive diarrhea with dad and parties could not agree on school. However, court reversed on modifications not requested in the pleadings.

Parenting:

Tritschler v. Tritschler, 44 Fla.L.Weekly D1457 (Fla. 2d DCA 2019). Parenting plan that contains findings of fact that are not supported by the record must be reversed.

Walker v. Walker, 44 Fla.L.Weekly D1411 (Fla. 2d DCA 2019). Trial court erred not granting father significant timesharing simply because he did not have physical space to have the children without discussion of F.S. 61.13 factors.

E.V. v. D.M.V.H., 44 Fla.L.Weekly D1381 (Fla. 2d DCA 2018). Parenting plan that did not describe in adequate detail the methods and technologies that parents will use to communicate with the child is not  complete compliance with F.S. Section 61.13(2)(b),  and requires reversal.

Procedure:

Thomas v. Cromer, 44 Fla.L.Weekly D1511 (Fla. 3d DCA 2019). Trial court violated fathers due process rights by granting motion for rehearing which only challenged child support, and entered amended final judgment restricting father’s timesharing without affording father opportunity to be heard.

Trainor v. Mendez, 44 Fla.L.Weekly D1510 (Fla. 3d DCA 2019). Trial court did not err in signing a party’s proposed order when both parties submitted proposals of orders. Court made changes to order it signed.

Saboff v. Saboff, 44 Fla.L.Weekly D1447 (Fla. 5th DCA 2019). Trial court affirmed for granting new trial after acknowledging there was no justification why the court had not issued final judgment in 15 months. Remanded for new judge to hear case as quickly as possible.

Rokosz v. Haccoun, 44 Fla.L.Weekly D1435 (Fla. 3d DCA 2019). Trial court erred by treating parties’ motion to vacate lis pendens as a motion for reconsideration, as it denied moving party the right to an evidentiary hearing.

Godin v. Owens, 44 Fla.L.Weekly D1401 (Fla. 5th DCA 2019). Generally, a trial court must grant a legally-sufficient motion to disqualify immediately, and may not take any further action in the matter. The trial court maintains ability to perform ministerial duty of preparing order to reflect oral pronouncements before motion to disqualify is filed. In this case, trial court made oral pronouncements on all issues but child support. Former wife then moved to disqualify court. Court erred determining child support after motion to disqualify was filed.

Relocation:

Hull v. Hull, 44 Fla.L.Weekly D1407 (Fla. 5th DCA 2019). Trial court does not have authority to modify timesharing of parent who relocates without children. Plain language of statute requires parent to prevail at relocation in order to modify timesharing (even if children are not relocating).

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