Stephens’ Squibs – May 2020

Edited by Caryn A. Stevens, Esquire

Alimony:

Walker v. Walker, 45 Fla.L.Weekly D1067 (Fla. 1st DCA 2020).  Judgment awarding permanent alimony remanded for finding no other form of alimony is appropriate.  Judge Darlene F. Dickey remanded.

Rhoden v. Rhoden, 45 Fla.L.Weekly D1035 (Fla. 1st DCA 2020).  Trial Court erred awarding ten (10) years of durational alimony in 35-year marriage without a finding that rebutted presumption of permanent alimony in long term marriage.  Court also erred imputing minimum wage to Wife when there was no evidence presented contradicting her evidence that her health ailments prevented her from working a minimum wage job.  Judge Stanley H. Griffs, III reversed.

Appeals:

Miller v. Miller, 45 Fla.L.Weekly D1222 (Fla. 5th DCA 2020).  Fee order that awards entitlement but not amount of fees is not ripe for review.  Appeal dismissed.

Jenkins v. Jenkins, 45 Fla.L.Weekly D967 (Fla. 3rd DCA 2020). Trial court erred by categorizing marriage as short term instead of moderate length marriage, but because there was no transcript, no detailed review of Court’s factual findings can be done.  Judge Maria Elena Verde affirmed in part and remanded with instructions.

Attorney’s Fees:

Gilbert v. Gilbert, 45 Fla.L.Weekly D1206 (Fla. 3rd DCA 2020).  Trial court erred not making findings on which party prevailed on significant issues when marital settlement agreement contained a prevailing party clause.  Judge Luis M. Garcia reversed.

Helinski v. Helinski, 45 Fla.L.Weekly D1154 (Fla 5th DCA 2020).  Former Husband’s argument that he could not seek fees in post-judgment modification involving best interests of children rejected, even when marital settlement agreement provided a waiver of fees “for any future proceedings in any court.”  Court affirmed for finding Former Wife had no need for fees, but reversed for not assessing costs per 12.420(c) after Former Husband voluntarily dismissed his petition for modification.  Judge Monica Gordo affirmed in part, reversed in part.

Duhamel v. Michael F. Fluke, PA, 45 Fla.L.Weekly D1061 (Fla. 2nd DCA 2020).  Trial court erred imposing a charging lien against equitable distribution that attorney had no hand in securing.  Judge Alicia Polk reversed.

Kotlarz v Kotlarz, 45 Fla.L.Weekly D996 (Fla. 1st DCA 2020). Collecting an equalizing payment is tantamount to becoming judgment creditor, and party has all remedies available to a creditor. Thereafter, Court erred granting 61.16 fees for collection efforts.  Judge Wolf concurs that is current state of law, but suggests legislators fix it.  Judge Thomas V. Dannheisser reversed.

Enforcement:

Vinson v. Vinson, 45 Fla.L.Weekly D1172 (Fla. 1st DCA 2020).  Trial court erred holding party in contempt for failure to make equalizing payment, and ordering party to pay permanent alimony if he did not comply. Equitable distribution is not enforceable by contempt.  Judge Michael A. Flowers reversed.

Pace v. Pace, 45 Fla.L.Weekly D1046 (Fla. 5th DCA 2020).  Trial court erred incarcerating party for failing to pay support based on fact payor managed to pay his attorney, car, nice house, and has been able to borrow money in the past.  Judge Diana M. Tennis affirmed in part, reversed in part.

Allen v. Estate of Allen, 45 Fla.L.Weekly D963 (Fla. 4th DCA 2020).  Estate was not entitled to a discount for present cash value when Husband pre-paid an equalizing payment as a lump sum, as opposed to making monthly periodic payments. Further, estate’s argument that before Former Husband died, a portion of the payment was alimony was rejected when martial settlement agreement provided a waiver of support.  Judge Charles M. Greene reversed.

Equitable Distribution:

Van Maerssen v. Gerdts, 45 Fla.L.Weekly D1104 (Fla.4th DCA 2020).  Error to assign account depleted during pendency of a case to a party without a finding of waste.  Trial court erred failing to impute income to Wife that proceeds from sale of house will generate.  Judge Catherine Brunson affirmed in part, reversed in part.

Street v. Street, 45 Fla.L.Weekly D1057 (Fla. 2nd DCA 2020).  Trial court erred categorizing a vehicle bought with separate monies, a motorcycle gifted to husband, and other assets as  marital assets when they were not.  Judge Joseph G. Foster, affirmed in part, reversed in part.

Diaz-Silveira v. Diaz-Silveira, 45 Fla.L.Weekly D1013 (Fla. 3rd DCA 2020).  Trial court erred distributing $17,000 credit card debt to Husband when it had already been discharged.  A party who wants trial court to consider tax consequences of their receipt of a tax-burdened asset must present evidence of tax consequence so Court may order a distribution that is equitable.  Judge David H. Young affirmed in part, reversed in part.

Income:

Jones v. Jones, 45 Fla.L.Weekly D1043 (Fla. 5th DCA 2020).  Trial court reversed and remanded for imputing $17.50 / hour to Wife when Husband failed to present substantial, competent evidence regarding same.  Judge Donald A. Myers, Jr. affirmed in part, reversed in part.

Williams v. Gonzalez, 45 Fla.L.Weekly D960 (Fla 4th DCA 2020).  Trial court erred imputing Husband’s previous wages earned in Florida when Husband moved to North Carolina, and no evidence of North Carolina wages were offered. Judge Dale C. Cohen reversed.

Mejia v. Mejia, 45 Fla.L.Weekly D1033 (Fla. 4th DCA 2020).  Fact both parties had Florida Drivers licenses, joint bank accounts in Florida, and a homesteaded property in Florida was sufficient to establish subject matter jurisdiction, even though parties were not physically present in Florida for 6 months before filing.  However, court based alimony on Husband’s gross income instead of net, which was in error.  Judge Nickolaus Hunter Davis reversed.

Injunction:

Yaklin v. Yaklin, 45 Fla.L.Weekly D1118 (Fla. 2nd DCA 2020).  Trial court reversed for issuing domestic violence injunction based on  vague history of physical and emotional abuse. Evidence was legally insufficient to support entry of injunction.  Judge Carolyn D. Swift reversed.

Whitlock v. Veltkamp, 45 Fla.L.Weekly D1115 (Fla. 1st DCA 2020).  Domestic violence injunction involving stalking affirmed.  Respondent argued injunction was inappropriate because he had not threatened violence or committed a violent act. The inclusion of stalking as an act of domestic violence caused the statutory definition to diverge from the colloquial meaning of violence.  Judge John L. Miller affirmed.

Paskert v. Steffenmeier, 45 Fla.L.Weekly D1055 (Fla. 2nd DCA 2020).  Stalking injunction order that included restrictions as to petitioner’s residence and vehicle were not in judge’s oral pronouncements, and therefore were overbroad.  Judge Theodora C. Komninos affirmed in part, reversed in part.

Modification:

Forman v. James, 45 Fla.L.Weekly D1095 (Fla. 3rd DCA 2020).  Trial court erred modifying temporary custody at a case management conference, as such hearing was not evidentiary, not properly noticed, and to top it off, Respondent was denied the opportunity to be heard.  Judge Scott M. Bernstein’s order quashed.

Bryan v. Wheels, 45 Fla.L.Weekly D1007 (Fla. 3rd DCA 2020).  Mother moving from foreign state back to Florida was not a sufficient change of circumstance to warrant change in timesharing.  Judge Stanley H. Griffis reversed.

Haeberli v. Haeberli, 45 Fla.L.Weekly D992 (Fla. 5th DCA 2020).  Successful attorney for Moderna, Inc. appealed order increasing alimony and child support for ex-wife and wheelchair-bound child. His argument that marital settlement agreement did not provide basis for modification rejected when F.S. 61.14(1)(a) obviously provides for a modification upon a change in circumstances. Judge Diana M. Tennis affirmed.

Parenting:

C.G. v. M.M., 45 Fla.L.Weekly D1183 (Fla. 2nd DCA 2020).. Parenting plan based on an event that was not objectively certain to occur would allow for an improper modification.  Remanded to fashion parenting plan based on circumstances at the time of the trial.  Judge Jack Hellinger reversed.

Scudder v. Scudder, 45 Fla.L.Weekly D1111 (Fla. 4th DCA 2020).  A parenting plan that fails to address all requirements in F.S. 61.13(2)(b) is legally insufficient.  Judge Maxine Cheesman affirmed in part, reversed in part.

Talarico v. Talarico, 45 Fla.L.Weekly D970 (Fla. 3rd DCA 2020).  Court reversed on a series of non-final orders curtailing mother’s visitation rights, when basis for order was court’s non-recorded interview with children and Court failed to provide any findings as to what the children said that would justify limiting timesharing. Judge Stacy D. Glick reversed.

Procedure:

Jones v. Jones, 45 Fla.L.Weekly D1221 (Fla. 5th DCA 2020). Trial court erred requiring party to recover $130,000 transferred to a friend and place it in trust account, when order lacked required factual findings and elements needed for such an injunction.  Judge Vincent S. Chiu affirmed in part, reversed in part.

Humphrey v. Humphrey, 45 Fla.L.Weekly D1124 (Fla. 1st DCA 2020).  Incarcerated party properly objected to order of referral to magistrate by timely delivering it to the Department of Corrections to mail.  Trial court erred failing to sustain objection.  “Even prisoners are entitled to access to court.”  Judge Francis Allman reversed.

Benedict v. Benedict, 45 Fla.L.Weekly D1114 (Fla. 4th DCA 2020).  Trial court erred denying pro-se party right to examine other party because it would be “futile.”  Procedural due process consists of a meaningful opportunity to be heard.  The right to be heard at an evidentiary hearing includes more than simply being allowed to be present in the courtroom and speak.  The right to be heard includes the right to introduce evidence at a meaningful time in a meaningful manner. Judge Andrea Gunderson reversed.

Delgado v. Morejon, 45 Fla.L.Weekly D1845 (Fla. 5th DCA 2020).  Party who failed to seek rehearing and pointing out errors to trial court to give trial court chance to correct error waives those error(s) on appeal.  *Caution—this opinion of the 5th DCA directly conflicts with other districtsJudge Abdel Delgado affirmed.

Ramos v. North Star Entertainment Firm, LLC, 45 Fla.L.Weekly D1029 (Fla. 4th DCA 2020).  Trial court reversed for sentencing a witness to 60 days in jail for perjury.  Lengthy discussion.  Judge Carlos A. Rodriguez reversed.

Izquierdo v. Del Valle, 45 Fla.L.Weekly D964 (Fla. 4th DCA 2020).  Trial court erred for dismissing petition for modification without allowing party an opportunity to amend.  Judge Dale C. Cohen reversed.

Phoulhac v. Francois, 45 Fla.L.Weekly D937 (Fla. 4th DCA 2020).  Where terms in a final judgment are ambiguous as applied to facts developing after the judgment, a Court may clarify what is implicit in the judgment.  Judge Andrea Gunderson reversed.

Support:

Phagan o/b/o L.D.R. v. McDuffie, 45 Fla.L.Weekly D1161 (Fla. 5th DCA 2020).  Trial court erred dismissing petition to extend support for dependent child past their 18th birthday, when petition was filed before dependent child reached age of majority.  Judge Stasia Warren reversed.

Ianni v. Ianni, 45 Fla.L.Weekly D1120 (Fla. 5th DCA 2020).  Trial court erred in failing to consider mortgage payments made when calculating retro-active support.  Judge George B. Turner affirmed in part, reversed in part.


Eddie Stephens, author of Stephens’ Squibs – Florida Family Law Updates, is a partner at Ward Damon and leads the Family and Marital Law department.  He is a Board Certified Family Law attorney who specializes in high-conflict divorces. Most important to Stephens is litigating in a manner that minimizes the impact of divorce on children.

Caryn A. Stevens, editor of Stephens’ Squibs – Florida Family Law Updates, is a Partner at the law firm of Ward Damon in West Palm Beach, where she focuses her practice exclusively in the areas of marital and family law. Prior to practicing law,   Caryn spent over 12 years working in the mental health and counseling fields, as a mental health counselor in private practice, as a counselor for the Department of Children & Families, and later as an Elementary School Guidance Counselor. Caryn is a graduate of Florida State University, where she earned her Bachelors degree in Psychology, and her Masters and Specialist Degrees in Counseling & Human Services. Caryn received her Juris Doctorate from Nova Southeastern University, and received pro bono honors for her volunteer legal work. In her prior work as a mental health counselor, Caryn has had the unique opportunity to assist thousands of children, families and couples through difficult life circumstances, which allow her to bring a unique and compassionate perspective to the clients she represents currently. Caryn is a current member of the Florida Bar Family Law Section, where she serves on the Children’s Issues Committee and the Domestic Violence Committee. Caryn also serves as the Treasurer of the Susan Greenberg Family Law Inn of Court of the Palm Beaches, and is a graduate of the Leadership Palm Beach County Class of 2019. Caryn is a native South Floridian, and currently lives in Palm Beach County with her Husband, and their adorable Mini Aussie.

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