Family Law Case Updates – April 2021

Editor: Caryn A. Stevens

Associate Editor: Gina Szapucki

Alimony:

Mercado v. Mercado, 46 Fla.L.Weekly D925 (Fla. 2nd DCA 2021). Trial court erred requiring husband to pay HOA and mortgage as a result of wife’s request for exclusive use and possession until child reaches majority, and not deducting house expenses from husband’s income as alimony for purposes of determining child support. Judge Diana L. Moreland, affirmed in part, reversed in part.

Rabadan v. Rabadan, 46 Fla.L.Weekly D720 (Fla. 4th DCA 2021). Award of excessive alimony reversed. A trial court may leave a paying spouse with significantly less net income than receiving spouse only when it makes written findings of exceptional circumstances. Court may require one party to provide medical or dental insurance, but must place a monetary limitation on the maximum cost of the insurance. Judge Dina A. Keever-Agrama reversed in part, affirmed in part.

Speigner v. Speigner, 46 Fla.L.Weekly D661 (Fla. 1st DCA 2021). Trial court erred awarding 7 years durational alimony in long-term marriage. There is a rebuttable presumption that if alimony is to be awarded following a long-term marriage, the award should be permanent alimony. However, if the recipient spouse will attain a level of self-support commensurate with the marital style of living by the time the durational alimony expired, the presumption of permanent alimony is rebutted. In this case, the court’s denial of permanent alimony in favor of durational alimony without explaining how the former wife’s ongoing need for support will expire after 8 years, the trial court committed reversible error. Judge Kevin J. Carroll, reversed.

Appeals:

Golub v. Golub, 46 Fla.L.Weekly D810 (Fla. 5th DCA 2021). Writ of prohibition is the wrong appellate venue to challenge orders bifurcating divorce and partial final judgment, when one party is incapacitated and the 3-year waiting period has not expired. Prohibition is inappropriate if a party has the right to remedy wrong on direct appeal. Writ of prohibition directed to Judge Michael J. Rudisill, dismissed.

Enforcement:

Wilkinson v. Bell, 46 Fla.L.Weekly D833 (Fla. 2nd DCA 2021). Order on contempt, that did not actually adjudicate any party in contempt (only enforcement was ordered) is not construed as an order on contempt for appellate purposes. Judge John S. Carlin, affirmed.

Powell v. Evanson, 46 Fla.L.Weekly D819 (Fla. 1st DCA 2021). Party could not be held in contempt for violating a provision in a previous order that provided all future air travel must be agreed upon, when husband drove child. Prior order did not expressly address the conduct at issue.  Judge Anthony B. Miller, reversed.

Equitable Distribution:

Palmer v. Palmer, 46 Fla.L.Weekly D872 (Fla. 5th DCA 2021). Trial court affirmed for determining increase in husband’s stock, in closely-held corporation, was due to marital efforts and therefore a marital asset, but reversed for distributing proceeds twice for a property which was sold. Judge Christopher France, affirmed in part, reversed in part.

Tanner v. Tanner, 46 Fla.L.Weekly D826 (Fla. 1st DCA 2021). Future football tickets and parking passes for University of Georgia are not marital assets, as season tickets were for the future, and were not acquired during the marriage. Judge Robert M. Foster, reversed.

Ortiz v. Ortiz, 46 Fla.L.Weekly D765 (Fla. 2nd DCA 2021). Trial court’s conclusion that it did not have jurisdiction to consider a request for partition is erroneous because trial court has power to divide and distribute marital home under equitable distribution statute, regardless if a party plead for partition. Even though court’s rationale was erroneous, still affirmed for giving wife exclusive use and possession during child’s minor age. Judge Lisa D. Campbell, affirmed in part, reversed in part.

Income:

Ortega v. Wood, 46 Fla.L.Weekly D818 (Fla. 1st DCA 2021). Trial court erred determining husband’s income by failing to impute husband’s rent and personal expenses on corporate credit cards. Trial court erred concluding that any corporate asset or expense cannot be imputed as income. Judge Robert K. Groeb, affirmed in part, reversed in part.

Injunctions:

Laquidara v. Houghtaling, 46 Fla.L.Weekly D878 (Fla. 2nd DCA 2021). A neighboring business who blocks access to another business by the way he parks and leaves his equipment, who yells and hurls profanities, is not behavior that would support a stalking injunction. Respondent’s behavior was uncivil and offensive, but it did not rise to the level that would cause an objective person substantial emotional distress necessary for entry of an injunction. Judge G. Keith Cary, reversed.

Owens v. Owens, 46 Fla.L.Weekly D819 (Fla. 1st DCA 2021). Domestic violence injunction reversed when respondent was prevented from presenting evidence or cross-examining witnesses. Judge Terrance R. Ketchel, reversed.

Kendrick v. Glover, 46 Fla.L.Weekly D817 (Fla. 1st DCA 2021). Domestic violence injunction reversed. Question of whether the evidence is legally sufficient to justify an injunction is a question of law reviewed de novo. Here, (1) serving petitioner at undisclosed address; (2) reporting petitioner to US attorney’s office for alleged fraudulent financial affidavits; and (3) friend-requesting person on social media and sharing non-threatening letters and photographs with petitioner’s current boyfriend, is not sufficient to support entry of injunction. Judge Amy P. Brodersen, reversed.

Frost v. Wilson, 46 Fla.L.Weekly D801 (Fla. 2nd DCA 2021). Trial court erred extending dating violence injunction for 5 years. Allegation that respondent attended online club snorkeling event put petitioner in imminent fear belied by the fact petitioner took her own child to the snorkeling event. Judge Linda H. Babb, reversed.

Modification:

Arrington v. Arrington, 46 Fla.L.Weekly D894 (Fla. 1st DCA 2021). Trial court erred granting modification in child support filed 5 months after final judgment based on seasonal changes, as opposed to a permanent change. Judge Robert K. Groeb, reversed.

Parenting:

C.N. v. L.G.C., 46 Fla.L.Weekly S93 (Fla. 2021). Florida Supreme Court resolves conflict, a parenting plan is not legally deficient for failing to give specific/concrete steps to restore lost timesharing.

Couture v. Couture, 46 Fla.L.Weekly D752 (Fla. 1st DCA 2021). Trial court’s final judgment that awarded former husband majority timesharing, which conflicted with attached exhibit that provided former wife majority timesharing, reversed for internal inconsistencies. Judge Mark. E. Feagle, reversed.

Natali v. Natali, 46 Fla.L.Weekly D675 (Fla. 2nd DCA 2021). Portion of parenting plan that prospectively allows the Father to automatically, without court intervention, graduate to unsupervised timesharing upon the satisfaction of predetermined conditions was an impermissible prospective-based modification. Judge David R. Ellis, affirmed in part, reversed in part.

Johnson v. Johnson, 46 Fla.L.Weekly D653 (Fla. 4th DCA 2021). Trial court affirmed for designating Father’s address for school designation because Mother relocated child to Broward County during pendency of proceedings. However, the trial court should have provided a contingent designation if the Mother moved back to Palm Beach County, as she had majority timesharing and Palm Beach County mandates that a student attends school where the child spends the majority of the time. Palm Beach County School Board Code No. 5.011 (2018). Judge Karen M. Miller, affirmed in part, reversed in part.

Procedure:

Kusayev v. Kusayev, 46 Fla.L.Weekly D908 (Fla. 4th DCA 2021). Trial court erred denying motion to dismiss for forum non-conveniens without addressing Kinney factors (Kinney Systems Inc., 674 So.2d 86, 90 (Fla. 1996)). Judge Michael Davis, reversed.

Brooks v. Brooks, 46 Fla.L.Weekly D895 (Fla. 1st DCA 2021). The Court allowing introduction of husband’s disability application was admissible to impeach husband’s testimony that he never reported to a doctor he had anger problems. Once the court ruled that records were to be used exclusively for impeachment/rebuttal purposes, Court erred relying on document as substantive evidence of husband’s mental health. Judge Kelvin C. Wells, affirmed in part, reversed in part.

Apesteguy v. Keglevich, 46 Fla.L.Weekly D781 (Fla. 3rd DCA 2021). Trial court affirmed for denying wife’s continuance request made an hour before trial based on wife’s claims of discovering “new evidence”, which wife already had in her possession for 5 months. Trial court properly found wife failed to act with diligence. Judge Valerie R. Manno Schurr, affirmed.

Helinski v. Helinski, 46 Fla.L.Weekly D705 (Fla. 3rd DCA 2021). Notwithstanding a voluntary dismissal, trial court did retain jurisdiction to award and allocate guardian ad litem fees. However, the court deprived husband of his due process rights by failing to address discovery issues before the hearing. Judge Victoria del Pino, reversed.

In Re: Amendments to the Rules Fla. Family Law Rule of Procedure, 46 Fla.L.Weekly S61 (Fla. 2021). Rule changed to require documents that are saved but not filed with the court to be served in accordance with Fla. R. Jud. Admin. Rule 2.516.

S.H.Y. v. P.G., 46 Fla.L.Weekly D671 (Fla. 2nd DCA 2021). Psychotherapist waived the psychotherapist-patient privilege under Fla. Stat. §90.503(3)(d) by choosing to testify and produce her whole file at her deposition without objection, and by choosing to testify at an emergency hearing without objecting. Trial court erred from precluding psychotherapist from later testifying at trial. Judge Denise A. Pomponio, reversed.

Jones v. Sayer, 46 Fla.L.Weekly D648 (Fla. 4th DCA 2021). Trial court erred sua sponte dismissing an action for improper venue when parties consented to venue. Judge Charles M. Greene, reversed.

Relocation:

Duryea v. Bono, 46 Fla.L.Weekly D899 (Fla. 2nd DCA 2021). Trial court erred in denying Mother’s relocation request, when prior final order already allowed the relocation. Judges Stephen M. Walker and Thomas Krug, affirmed in part, reversed in part.

Support:

Veith v. Veith, 46 Fla.L.Weekly D870 (Fla. 5th DCA 2021). Trial court erred determining child support without deducting husband’s alimony obligation, and requiring life insurance without findings of special circumstances. Judge Tanya Davis Wilson, affirmed.

Carmack v. Carmack, 46 Fla.L.Weekly D808 (Fla. 5th DCA 2021). Trial court erred on face of order, granting post-judgment motion for temporary relief, which awarded retroactive relief prior to modification being filed. Judge Julie H. O’Kane, affirmed in part, reversed in part.

King v. King, 46 Fla.L.Weekly D726 (Fla. 4th DCA 2021). Trial court erred adding tax obligation to net incomes, instead of subtracting the tax obligation when calculating child support. Judge Cynthia L. Cox, affirmed in part, reversed in part.


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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