Family Law Case Updates – March 2021

Editor: Caryn A.Stevens

Associate Editor: Gina Szapucki

Alimony:

Odom v. Odom, 46 Fla.L.Weekly D613 (Fla. 1^st DCA 2021). Trial court affirmed for awarding bridge-the-gap alimony in a four (4) year marriage and finding wife’s claim that she is not able to work not credible. Judge John I. Guy, affirmed.

Potter v. Potter, 46 Fla.L.Weekly D573 (Fla. 1^st DCA 2021). Trial court did not err combining parties’ first and second marriages to determine length of marriage for alimony purposes. Judge Martin A. Fitzpatrick, affirmed.

Barrett v. Barrett, 46 Fla.L.Weekly D558 (Fla. 5^th DCA 2021). Court erred finding wife’s exact need was not relevant because husband lacked ability. The husband’s inability to pay does not excuse court from obligation to quantify those needs. Trial court also erred denying retroactive alimony by concluding husband had already paid at least what the alimony award was without going through ability/need analysis. Judge Melissa Souto, affirmed in part, reversed in part.

King v. King, 46 Fla.L.Weekly D498 (Fla. 1^st DCA 2021). Trial court erred including undistributed pass-through income from an S corporation in income for purposes of determining alimony. Undistributed income an S corporation has retained does not constitute income to the shareholder spouse. See Zold v. Zold 911 So.2d 1222 (Fla. 2005). Judge Suzanne Wilson Bullard, affirmed in part, reversed in part.

Appeals:

Sweeney v. Sweeney, 46 Fla.L.Weekly D565 (Fla. 2^nd DCA 2021). Circuit court’s determination of entitlement to attorney fees, but reserving on amount of attorney’s fees, is a non-final order not subject to appeal. Judge Frederick L. Pollack, dismissed.

Attorney’s Fees:

Palmateer v. Palmateer, 46 Fla.L.Weekly D513 (Fla. 2^nd DCA 2021). Trial court erred requiring wife to disgorge $9,000.00 in temporary appellate attorney’s fees awarded pursuant to Florida Rule of Appellate Procedure 9.600(c). The fact wife failed to file her timely request for final appellate fees per Florida Rule of Appellate Procedure 9.400(b) has no bearing on temporary appellate attorney fees granted by circuit court. Judge Scott H. Cupp, reversed.

Enforcement:

Abdo v. Abdo, 46 Fla.L.Weekly D618 (Fla. 2^nd DCA 2021). Because final judgment did not provide clear direction for compliance and trial court exceeded the scope of remand, order of contempt reversed. Judge Steven Scott Stephens, reversed.

Suarez v. Suarez, 46 Fla.L.Weekly D481 (Fla. 3^rd DCA 2021). Trial court erred enforcing obligation as contempt and relying on parole evidence when agreement was unambiguous. Even though payment was labeled as alimony, it was clear it was non-modifiable and meant to effectuate property distribution. Judge David H. Young, affirmed in part, reversed in part.

Equitable Distribution:

Fernandez-Tretiakova v. Fernandez, 46 Fla.L.Weekly D594 (Fla. 4^th DCA 2021). Trial court reversed for ordering unequal distribution without required findings of fact. Judge Cynthia L. Cox, affirmed in part, reversed in part.

Murphy v. Murphy, 46 Fla.L.Weekly D563 (Fla. 2^nd DCA 2021). Trial court erred classifying post-filing contributions to retirement as marital. Judge Carl C. Hinson, affirmed in part, reversed in part.

King v. King, 46 Fla.L.Weekly D498 (Fla. 1^st DCA 2021). Trial court erred in determining value of personal good will to be excluded from value of marital business. Wife’s accountant relied on what other comparable businesses that sold self-reported their value of goodwill, but expert lacked any specific knowledge about the particulars of the companies who reported the transactions. This was not competent evidence to support trial court’s valuation. Trial court erred not considering company’s liabilities in valuation. Judge Susanne Wilson Bullard, affirmed in part, reversed in part.

Calvarese v. Calvarese, 46 Fla.L.Weekly D495 (Fla. 4^th DCA 2021). Trial court erred ordering partial interim distribution when neither party requested it, nor was there good cause to support it. Judge Michael Davis, affirmed in part, reversed in part.

Roth v. Roth, 46 Fla.L.Weekly D473 (Fla. 2^nd DCA 2021). When classifying the proceeds of a personal injury settlement the marital portion includes lost wages/earnings during the marriage, and medical expenses paid from marital funds. Non-marital portion is damage for pain and suffering. Here, because neither party presented evidence, could not establish what portion was non-marital. Also, reimbursement or credit for party’s payment of marital property expenses during separation is a matter of judicial discretion in light of all circumstances. In this case, the court gave no explanation, so the matter was remanded. Judge Chet A. Tharpe, affirmed in part, reversed in part.

Injunctions:

Wynter v. Gutierrez, 46 Fla.L.Weekly D507 (Fla. 5^th DCA 2021). Trial court erred entering injunction solely on incident not included in petition, and that which was objected to. Judge Judith E. Atkin, reversed.

Parenting:

R.S. v. S.K., 46 Fla.L.Weekly D564 (Fla. 2^nd DCA 2021). Trial court erred as a matter of law denying modification based on conclusion that the sexual abuse of a child did not pose a permanent threat of harm to children. Judge Reinaldo Ojeda, reversed.

Aiala v. Larkin, 46 Fla.L.Weekly D496 (Fla. 4^th DCA 2021). Court affirmed for modifying timesharing and granting mother ultimate decision-making. Here, the relationship was more than acrimonious, the father refused to take child to medical visits, failed to give child medicine and knew very little concerning child’s healthcare. Judge Sarah Willis, affirmed.

Procedure:

Herce v. Maines, 46 Fla.L.Weekly D570 (Fla. 2^nd DCA 2021). Trial court’s limited role did not permit it to reject general magistrate’s factual findings that were supported by the evidence nor could the trial court substitute its judgment for that of the general magistrate where the general magistrate did not misconceive the law or commit any errors in their recommendation. Judges Denise A. Pomponio and Melissa M. Polo, reversed.

Barrett v. Barrett, 46 Fla.L.Weekly D558 (Fla. 5^th DCA 2021). Where a party pleads fraud with specificity on a 12.540 motion, the trial court must conduct an evidentiary hearing. Judge Melissa Souto, affirmed in part, reversed in part.

Support:

Maali v. Maali, 46 Fla.L.Weekly D504 (Fla. 5^th DCA 2021). Trial court erred requiring husband to pay private tuition for his three children, when the evidence did not support he could maintain that expense in light of his other obligations. Trial court also erred by not deducting husband’s alimony payment from husband’s income when calculating child support. Judge Alan S. Apte, affirmed in part, reversed in part.

Temporary Relief:

Wilkins v. Wilkins, 46 Fla.L.Weekly D612 (Fla. 1^st DCA 2021). Trial court erred imputing income to wife at temporary relief hearing. Great deference should be accorded the joint decision of the parties that the wife should stay home and care for the children. Judge Daniel F. Wilensky, affirmed in part, reversed in part.

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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.