Stephens’ Squibs – August 2020

Editor: Caryn A.Stevens

Associate Editor: Gina Szapucki

Alimony:

Ortiz v. Ortiz, 45 Fla.L.Weekly D1929 (Fla. 3rd DCA 2020). A judgment that does not include the reasoning behind an award of alimony, and failure to make these findings is reversible error. Judge David Young affirmed in part, reversed in part.

Harkness v. Harkness, 45 Fla.L.Weekly D1823 (Fla. 4th DCA 2020). Trial court abused discretion in denying award of permanent alimony in long-term marriage based on court’s finding that no “legal basis” to award alimony, because there was no permanent impediment to the wife financially supporting herself. Judge Kathleen Kroll affirmed in part, reversed in part.

Attorney’s Fees:

Bolliger v. Fries, 45 Fla.L.Weekly D1830 (Fla. 2nd DCA 2020). Order denying fees reversed and remanded, when trial court made no written findings or oral pronouncements on need, ability, or any other relevant factor. Judge Nicholas Thompson affirmed in part, reversed in part.

Enforcement:

Jacobs v. Jacques, 45 Fla.L.Weekly D1905 (Fla. 2nd DCA 2020). Even without a transcript, a contempt order that does not find willful contempt or ability to pay, or any findings on financial positions for attorney’s fees must be reversed. Judge John S. Carlin affirmed in part, reversed in part.

Equitable Distribution:

Niederkohr v. Kuselias, 45 Fla.L.Weekly D1941 (Fla. 5th DCA 2020). Trial court properly found Wife dissipated assets, except for those funds expended on mortgage, HOA fees, car insurance and health insurance, because they are marital expenses. Judge Alicia L. Latimore affirmed in part, reversed in part.

Ortiz v. Ortiz, 45 Fla.L.Weekly D1929 (Fla. 3rd DCA 2020). Final Judgment that fails to identify and distribute all the marital assets as part of equitable distribution scheme should be reversed. Judge David Young affirmed in part, reversed in part.

Income:

Paul v. Paul, 45 Fla.L.Weekly D1941 (Fla. 5th DCA 2020). Trial court erred by failing to include Husband’s net income from business and failed to include alimony Wife received in her income for purposes of determining support. Judge Brian J. Welke affirmed in part, reversed in part.

Crespo v. Watts, 45 Fla.L.Weekly D1938 (Fla. 1st DCA 2020). Without evidence concerning Wife’s unemployment, the court could not conclude unemployment was voluntary and impute income to the Wife. Administrative Judge Elizabeth W. McArthur affirmed in part, reversed in part.

Waldera v. Waldera, 45 Fla.L.Weekly D1838 (Fla. 3rd DCA 2020). Trial court erred basing Husband’s income solely on one year, which was unusually low. Former Husband’s historical annual income gave rise to presumption he could continue to earn a higher amount than that determined by the court. Trial court erred imputing 20 hours a week of work to Wife, when she had historically homeschooled the child. Great deference should be accorded to joint decisions of the parties that the Wife should stay home to care for the children, especially where a course of conduct has taken place regardless of court’s conclusion on the wisdom of that decision. Judge Mark H. Jones reversed.

Gore v. Smith, 45 Fla.L.Weekly D1800 (Fla. 5th DCA 2020). Trial court affirmed for denying Father’s motion in limine requesting to strike Mother’s forensic accountant who determined Father’s 2007 income by taking the original child support number and reverse-engineering it through the child support calculations to determine income, as opposed to the method prescribed in Fla. Stat. §61.30. Appellate court reasoned that this approach was acceptable, because calculation was not to determine current income, but rather to determine if there was a substantial change of circumstances. Judge Marcia del Rey affirmed in part, reversed in part.

Stuczynski v. Marenco, 45 Fla.L.Weekly D1798 (Fla. 2nd DCA 2020) (Replaces 45 Fla.L.Weekly D301a). Trial court erred in failing to include Wife’s negative income from rental property in determining child support, when mortgage and fees were more than rent collected. Judge Alicia Polk affirmed in part, reversed in part.

Injunctions:

Berkeley v. Roy, 45 Fla.L.Weekly D1995 (Fla. 1st DCA 2020). Injunction reversed when respondent was not afforded an opportunity to present evidence or cross-examine petitioner. Judge Kelvin C. Wells reversed.

Sweet v, Tucker, 45 Fla.L.Weekly D1961 (Fla. 1st DCA 2020). Respondent of injunction entered in 1998 appeals motion to vacate for lack of personal jurisdiction, because he was served when he was 17 years old.  That fact makes a judgment voidable, not void. The fact that respondent appeared at the 1998 hearing cured any defects on service of process. Judge David Michael Frank affirmed.

Mamonov v. M.N.45 Fla.L.Weekly D1933 (Fla. 3rd DCA 2020). Trial court affirmed for entering an injunction against sexual violence, and found no abuse of discretion in conducting an in-camera interview of a 12-year old victim under Fla. Stat. §90.805(23). Judge Joseph L. Davis, Jr. affirmed.

Krapacs v. Bacchus, 45 Fla.L.Weekly D1913 (Fla. 4th DCA 2020). Stalking injunction was entered in favor of attorney Nisha Bacchus, who was an attorney for the Appellant/Respondent, Ashley Krapacs’s former boyfriend, against Ashley Krapacs (also an Attorney). Attorney Krapacs’ actions of posting memes to social media and a blog post including a picture of Attorney Bacchus and vulgar insults did not qualify as cyberstalking, because they do not constitute a pattern of conduct comprised of a series of acts over time, constituting a continuity of purpose. Restricting someone broadly from posting about someone on social media violates that person’s first amendment right. Judge Stefanie Moon reversed.

Barrett v. Busser, 45 Fla.L.Weekly D1886 (Fla. 2nd DCA 2020). Trial court entered 10-year injunction when respondent failed to appear at hearing. Trial court erred by denying Fla.R.Civ.P. 1.540 motion filed by respondent, without an evidentiary hearing, to allow attorney to provide the respondent’s absence was due to his excusable neglect. Judge Frances M. Perrone reversed.

Gonzalez v. Funes, 45 Fla.L.Weekly D1811 (Fla. 4th DCA 2020). Described by the Appellate Court as “A sourced business set against the backdrop of a love triangle put in motion…”.  Injunction reversed when respondent had legitimate purpose for contact, and actions would not cause substantial emotional distress to petitioner. Judge Stefanie Moon reversed.

Modification:

Miller v. Miller, 45 Fla.L.Weekly D2000 (Fla. 5th DCA 2020). Trial court erred by modifying portions of parenting plan which were not requested in pleadings. Trial court erred awarding child support when parties originally agreed to no support paid, and Former Wife did not demonstrate substantial change of circumstances. Judge Diana Michelle Tennis affirmed in part, reversed in part.

Malha v. Losciales, 45 Fla.L.Weekly D1978 (Fla. 3rd DCA 2020). Trial court resolving an impasse on major decisions was not an impermissible modification. Judge Victoria Del Pino affirmed.

Procedure:

Sanchez Vicario v. Santacana Blanch, 45 Fla.L.Weekly D1985 (Fla. 3rd DCA 2020). Lengthy discussion on priority and comity when two divorces are filed in two foreign countries. (NOTE: Read case if studying for board certification exam). Judge Maria Espinosa Dennis affirmed.

Constantino v. Genung, 45 Fla.L.Weekly D1883 (Fla. 2nd DCA 2020). Trial court abused direction for setting aside a final judgment based on newly-discovered evidence, when the record demonstrates newly-discovered evidence would likely not have changed the result of the proceeding. Judge Scott H. Cupp reversed.

A.V. v. T.L.L., 45 Fla.L.Weekly D1881 (Fla. 2nd DCA 2020). Trial court erred allowing medical professional to testify by phone without good cause, and a compounded error by not administering the oath. Judge Alicia Polk reversed.

Tavares v. Enoch, 45 Fla.L.Weekly D1857 (Fla. 4th DCA 2020). 7 ½ month delay after trial before entry of final judgment, alone, did not warrant reversal in this case. While the court made an error of fact, the 17-page final judgment indicates the court’s careful consideration of the testimony, admissible evidence and the child’s best interests. Appellate review did not reveal “numerous” discrepancies between the evidence and final judgment. However, in family law cases in particular, trial courts have a responsibility to render their decisions under circumstances which give no doubt the matter was seriously and promptly considered. Judge Kathleen J. Kroll, affirmed in part, reversed in part.

Ponomarenko v. Esenova, 45 Fla.L.Weekly D1826 (Fla. 4th DCA 2020). Trial court putting a time limit on attorney filing a motion to disqualify alone is not a legally sufficient reason for disqualification.  Judge Andrea Ruth Gunderson affirmed.

Support:

Reed v. Parsons, 45 Fla.L.Weekly D1872 (Fla. 1st DCA 2020). Trial court erred in granting a “speed” credit to child support (a deduction for court-ordered support paid for other children) where father lives with a new spouse, and there is no formal timesharing agreement. Judge Kevin J. Carroll reversed.

Fernandez v. Fernandez, 45 Fla.L.Weekly D1841 (Fla. 3rd DCA 2020). Trial court erred dismissing petition for continued support filed by 27-year-old dependent adult with Down Syndrome against the father, when it was not addressed in the parent’s original judgment. Fla. Stat. §743.07(2) preserves the common law right to seek adult dependent support from a parent in a court of competent jurisdiction. Judge David H. Young reversed.


Eddie Stephensauthor 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.

Gina Szapucki is an associate at Ward Damon and concentrates her practice exclusively in the areas of marital & family law. Gina quickly realized she had a passion for helping families while clerking for a family law firm. Prior to joining Ward Damon, she practiced marital & family law at a boutique law firm. Her drive to assist and guide families during challenging times continues to grow. Gina represents clients from all walks of life while zealously advocating for individual’s rights under Florida law.

Gina is originally from New Jersey but has called Florida home for the last 15 years. She is a proud Chi Omega Alumni and in her spare time enjoys traveling, cycling, exploring new restaurants and cuisines.

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