Stephens’ Squibs – December 2019

Stephens’ Squibs – 2020 Edition

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Edited by Caryn A. Stevens

Agreements:

Suess v. Suess, 44 Fla.L.Weekly D3028 (Fla. 2nd DCA 2019).  Trial court reversed for limiting wife to 50% of husband’s FRS pension earned during marriage and removing wife as survivor beneficiary, when plain language of agreement provides wife gets half of husband’s entire FRS and that she shall remain the beneficiary upon his death..

Appeals:

Crosier v. Crosier, 44 Fla.L.Weekly D2883 (Fla. 1st DCA 2019).  Trial court must affirm stalking injunction if no transcript of hearing provided.

Attorney’s Fees:

Schutt v. Schutt, 44 Fla.L.Weekly D3055 (Fla. 1st DCA 2019).  Trial court abused discretion by denying request for attorney’s fees.  Where the parties’ income disparity is substantial, a trial court abuses discretion by denying a request for fees.  Earning 2 ½ times more than spouse constitutes a substantial income disparity.

Enforcement:

Pack v. Wiechert, 44 Fla.L.Weekly D2929 (Fla. 1st DCA 2019).  Trial court erred requiring party to sign lease agreement on property when agreement specified it was to be sold.

Kozel v. Kozel, 44 Fla.L.Weekly D2865 (Fla. 2nd DCA 2019).  The family court’s continuing jurisdiction to enforce final judgment does not extend to claims for money damages for breach, unless specified in agreement.  When a trial court renders a final judgment, its jurisdiction of that matter is terminated except to enforce or modify child support, alimony or parenting issues.

Thilloy v. Ciccone-Capri, 44 Fla.L.Weekly D2835 (Fla. 3rd DCA 2019).  An alleged contemnor who has a pending petition for modification is entitled to have that matter heard before or with a subsequent filed motion for contempt.  You cannot hold a party in contempt for violating terms of agreement at a time when agreement was not adopted by order or judgment.

Equitable Distribution:

Dubose v. Dubose, 44 Fla.L.Weekly D3021 (Fla. 1st DCA 2019).  Trial court erred classifying timber as non-marital when it was harvested from marital property.

Burns v. Cole, 44 Fla.L.Weekly D2834 (Fla. 1st DCA 2019).  Trial court erred not distributing loan from parent as a marital liability, after finding parent made loan to parties during marriage.

Injunctions:

Adamczyk v. Hernan, 44 Fla.L.Weekly D2958 (Fla. 4th DCA 2019).  Abuse of discretion to grant injunction for protection against repeat violence without showing two acts of physical violence in a 6 month period.

Modification:

Nangle v. Nangle, 44 Fla.L.Weekly D2988 (Fla. 4th DCA 2019).  Trial court abused discretion denying alimony modification without considering party’s  current income and needs.  A trial court cannot require a spouse to incur debt to pay alimony.

Mirabella v. Mirabella, 44 Fla.L.Weekly D2981 (Fla. 2nd DCA 2019).  Trial Court reversed for retroactively modifying support obligations and arrears created by administrative support order.

Hughes v. Binney, 44 Fla.L.Weekly D2872 (Fla. 1st DCA 2019).  By enumerating conditions precedent to an automatic future modification of a timesharing schedule, the lower court erred by making a prospective determination of what course of action would be in the best interest of the child in the future.

Parenting:

Musgrave v. Musgrave, 44 Fla.L.Weekly D2861 (Fla. 2nd DCA 2019).  Because the wife never requested sole parental responsibility and there is no logic or justification for ordering same, order reversed.

Procedure:

DOR o/b/o Bean v, Robinson, 44 Fla.L.Weekly D3040 (Fla. 5th DCA 2019).  Court reversed for denying mother’s motion for contempt because she did not attend hearing.  Mother’s presence was not required by the Court and her testimony was not needed.

Davis v. Maloch, 44 Fla.L.Weekly D3039 (Fla. 5th DCA 2019). On exceptions, trial court is limited to reviewing whether magistrate’s legal conclusions were clearly erroneous or whether magistrate misconstrued legal effect of evidence. Circuit court commits reversible error by reweighing evidence already heard by the magistrate.

DeHoyos v. Bauerfeind, 44 Fla.L.Weekly D2970 (Fla. 1st DCA 2019).  Trial court erred allowing child hearsay statements into evidence without determining if F.S. 90.803(23) child hearsay exception applies.

LaForest v. LaForest, 44 Fla.L.Weekly D2952 (Fla. 4th DCA 2019).  Trial court erred requiring production of mental health records without mandatory in-camera inspection to ensure only relevant documents and information are disclosed.

Bustamante v. O’Brien, 44 Fla.L.Weekly D2873(Fla. 1st DCA 2019).  Trial court erred “clarifying” final judgment months after its entry because clarification conferred a new benefit, and therefore was an inappropriate modification.

Musgrave v. Musgrave, 44 Fla.L.Weekly D2861 (Fla. 2nd DCA 2019).  The law in Florida does not prohibit verbatim adoption of a proposed judgment.  However, an adopted judgment cannot substitute for a thoughtful independent analysis of the facts, issues and law by the trial judge.  A trial judge is permitted to request a proposed final judgment from the parties, so long as the opposing party is given an opportunity to comment or object prior to the entry of an order by the Court.

In Re: Amendments to the Florida Family Law Rules of Procedure, 44 Fla.L.Weekly S273 (Fla. 2019).  Revises IWO form and eliminates Florida addendum.

In Re: Amendments to the FloridaSupreme Court Approved Family Law Forms, 44 Fla.L.Weekly S273 (Fla. 2019).  New forms for custodial responsibility of minor children during deployment.

Support:

Jones v. Jones, 44 Fla.L.Weekly D3021 (Fla. 1st DCA 2019).  Retroactive support should be based on actual income at the time, and should be adjusted if child emancipates.

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