Family Law Case Updates – February 2021

Editor: Caryn A.Stevens

Associate Editor: Gina Szapucki

Agreements:

Bates v. Bates, 46 Fla.L.Weekly D287 (Fla. 3^rd DCA 2021). Prenuptial agreement was not invalid due to duress, but ivalid due to coercion. Lengthy discussion. Judge Sharon J. Hamilton, affirmed.

Alimony:

Ritacco v. Ritacco, 46 Fla.L.Weekly D241 (Fla. 4^th DCA 2021). Trial court affirmed for not imputing income from a DROP investment wife was going to use to buy a house. The Court erred considering certain benefits as in-kind income to husband. The payments in question were not liquid nor in-kind. Error to secure alimony with collateral that exceeds amount of support obligation. Judge Janis Brustares Keyser, affirmed in part, reversed in part.

Appeals:

Tyson v. Tyson, 46 Fla.L.Weekly D395 (Fla. 1^st DCA 2021). Appeal on entitlement of fees when amount has not been determined is non-final and not subject to appeal. Appeal dismissed.

Attorney’s Fees:

Shaw v. Shaw, 46 Fla.L.Weekly D397 (Fla. 1^st DCA 2021). Trial court erred denying fees without adequate explanation and no findings of fact. Judge John F. Simon, reversed.

C.F. v. S.B., 46 Fla.L.Weekly D367 (Fla. 2^nd DCA 2021). Trial court erred denying fees based on lack of evidence of amount and reasonableness of fees, when Judge said only entitlement will be determined. Judge Alicia Polk, affirmed in part, reversed in part.

Child Support:

Mantilla v. DOR, 46 Fla.L.Weekly D231 (Fla. 3^rd DCA 2021). Child support based on imputation of income that is unsupported by competent evidence is reversed. Note: Administrative action, there is no Judge.

Enforcement:

Williams v. Samuels, 46 Fla.L.Weekly D403 (Fla. 2^nd DCA 2021). Trial court erred finding party in contempt without finding party had a present ability to comply with order. Judge Dana Y. Moore, reversed.

Harrington v. Pospishil, 46 Fla.L.Weekly D375 (Fla. 4^th DCA 2021). Trial court did not impermissibly modify agreement when it removed the word “reasonable” from other party’s obligation to provide reasonable notice when requesting child’s passport after the other party was held in contempt for refusing to provide child’s passport. Judge Renatha S. Francis, affirmed.

Equitable Distribution:

Corrales v. Corrales, 46 Fla.L.Weekly D388 (Fla 3^rd DCA 2021). Supersedes 46 Fla.L.Weekly D11. Granted the motion for rehearing; withdrew original opinion. The trial court correctly found husband’s premarital residence had no non-marital value, when equity was taken out of the home several times during the marriage and repaid with marital funds; such debt incurred dwarfed the premarital value of the home. Judge Ivonne Cuesta, affirmed.

Schuenzel v. Schuenzel, 46 Fla.L.Weekly D383 (Fla. 3^rd DCA 2021). Trial court erred calculating prejudgment interest on a total amount paid. Prejudgment interest should be calculated for each payment made separately. Judge David H. Young, affirmed in part, reversed in part.

Peterson v. Peterson, 46 Fla.L.Weekly D311 (Fla. 2^nd DCA 2021). Trial court erred by not reflecting amount husband had intentionally dissipated from his 401K in the final distribution schedule. Judge Chet A. Thorpe, affirmed in part, reversed in part.

Injunctions:

Chiscul v. Hernandez, 46 Fla.L.Weekly D343 (Fla. 4^th DCA 2021). Domestic violence injunction was based on incidents that occurred prior to parties’ separation. In determining whether a petitioner has reasonable cause to believe that he or she is in imminent danger of becoming a victim of any act of domestic violence, the trial court “must consider the current allegations, the parties’ behavior within the relationship, and the history of the relationship as a whole.” Judge Susan L. Alspector, reversed.

Parenting:

Posso v. Sierra, 46 Fla.L.Weekly D353 (Fla. 5^th DCA 2021). While the determination to allow ultimate parental decision making should be based upon a finding that to do otherwise would be detrimental to the best interests of the child, such a finding can be made in the final judgment or during trial. Without a transcript, unable to prove error. Judge Alan S. Apte, affirmed in part, reversed in part.

Procedure:

Corridon v. Corridon, 46 Fla.L.Weekly D386 (Fla 3^rd DCA 2021). Trial court affirmed for not quashing service because an out of state return of service did not list the date and time of service. This requirement has been removed from Florida Statute. The Court erred determining child custody issues when a default is issued without affording the defaulted party an opportunity to present evidence on issues related to the child. Judge Bonnie J. Helms, affirmed in part, revered in part.

DOR o/b/o THW v. DEB, 46 Fla.L.Weekly D362 (Fla. 2^nd DCA 2021). Trial court erred ordering a third party to submit to DNA testing. Court had no jurisdiction over a third party. Judge Jack Helinger’s orders quashed by certiorari.

Armand v. Amisy, 46 Fla.L.Weekly D324 (Fla. 3^rd DCA 2021). Trial court erred granting final judgment of divorce without addressing husband’s motion to dismiss for lack of jurisdiction. Judge George A. Sarduy, reversed.

Bailey v. Bailey, 46 Fla.L.Weekly D245 (Fla. 4^th DCA 2021). Court properly denied 3^rd party’s petition for an intervention in a business she no longer owned, but the court erred in not allowing this 3^rd party to intervene when they had an interest in real property which was subject to litigation. Judge Karen M. Miller, affirmed in part, reversed in part.

Support:

DOR and Clemons v. McMullen, 46 Fla.L.Weekly D371 (Fla. 1^st DCA 2021). Trial court erred deducting child support not actually paid for other children from obligor’s income. Administrative Judge J. Bruce Culpepper, reversed.

Posso v. Sierra, 46 Fla.L.Weekly D353 (Fla. 5^th DCA 2021). Court erred in failing to address retroactive child support. Judge Alan S. Apte, 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.

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.