Family Law Case Updates – May 2021

Editor: Caryn A. Stevens

Associate Editor: Gina Szapucki

Alimony:

Rabadan v. Rabadan, 46 Fla.L.Weekly D1147 (Fla. 4th DCA 2021). Trial court’s award of alimony is excessive when leaves paying spouse without the means to support himself—absent written findings of exceptional circumstances. Husband also has no duty to support adult children who live with, and assist with, terminally-ill wife. Judge Dina A. Keever-Agrama, reversed in part, affirmed in part. NOTE: replaces opinion at 46 Fla.L.Weekly D720.

Agreement:

Sirgutz v. Sirgutz, 46 Fla.L.Weekly D951 (Fla. 4th DCA 2021). Trial court affirmed for deciding prenuptial agreement under New York law; and when prenup did not explicitly provide for alimony after death, when applying New York law, wife was not entitled to alimony when husband died. Also, amendment to prenuptial agreement which was not notarized is invalid under New York law. Judge Glenn D. Kelley, affirmed.

Appeals:

Heath v. Lee, 46 Fla.L.Weekly D1050 (Fla. 1st DCA 2021). Appeal seeking review of interim timesharing order, but did not determine any rights or obligations, dismissed as premature. Judge John L. Miller, dismissed.

Attorney’s Fees:

Freeborn v. Freeborn, 46 Fla.L.Weekly D1148 (Fla. 4th DCA 2021). Trial court cannot deny a request for attorney’s fees pursuant to Fla. Stat. §61.16, without making findings as to ability and need. Judge Victoria L. Griffin, affirmed in part, reversed in part.

Child Support:

Moody v. Moody, 46 Fla.L.Weekly D1076 (Fla. 1st DCA 2021). Trial court erred using gross income to calculate support without making any deductions. Judge Kevin J. Carroll, affirmed in part, reversed in part.

A.H. v. A.B., 46 Fla.L.Weekly D995 (Fla. 2nd DCA 2021). Trial court reversed when oral findings on child support conflicted with written findings, and appellate court unable to discern intent of the trial court. Judge Ralph C. Stoddard, affirmed in part, reversed in part.

Coffy v. Coffy, 46 Fla.L.Weekly D968 (Fla. 4th DCA 2021). Court affirmed for awarding equity of house as child support, when parties signed a mediation agreement that provided for payment of child support for one of the children via transferring equity in the marital home to the Wife. Judge Dale C. Cohen, affirmed.

Enforcement:

Gibbs v. Gibbs, 46 Fla.L.Weekly D986 (Fla. 1st DCA 2021). Trial court affirmed for finding former husband in contempt for his failure to pay alimony when former husband’s evidence presented could not meet his burden—given all the assets available to him, his immediate repayment of funds, and his more than comfortable lifestyle was within the court’s discretion. Former husband failed to prove he was involuntarily unable to pay the purge amounts of unpaid alimony. Judge Russell Healey, affirmed.

Income:

Piccinini v. Waxer, 46 Fla.L.Weekly D1116 (Fla. 5th DCA 2021). Trial court erred imputing income to father which was the result of his “criminal activity.” Proper standard is to impute income if voluntary underemployment is due to less than diligent and bona fide efforts to find employment paying the same or better than previous employment. Judge Donald A. Myers, Jr., affirmed in part, reversed in part.

Injunctions:

Swarek v. Lindsay, 46 Fla.L.Weekly D1140 (Fla. 1st DCA 2021). Trial court erred entering a domestic violence injunction against respondent who was not personally served or otherwise acquiesced to the jurisdiction of the court. Judge Ross M. Goodman, reversed.

Sanchez v. Saenz, 46 Fla.L.Weekly D1098 (Fla. 3rd DCA 2021). Temporary domestic violence injunction shall be fixed for a period not to extend 15 days, but may be extended on good cause. Here, court erred extending temporary injunction without good cause. Judge Christina Marie DiRaimondo, reversed.

Modification:

Hilbrands v. Hilbrands, 46 Fla.L.Weekly D1127 (Fla. 2nd DCA 2021). Fact that former wife remarried has no bearing on child support modification, but the fact that it was alleged former wife’s income has increased should have prevented entry of final judgment. Judge Denise A. Pomponio, affirmed in part, reversed in part.

P.D.V-G. v. B.A.V-G., 46 Fla.L.Weekly D1064 (Fla. 2nd DCA 2021). Trial court erred granting exceptions on magistrate’s report granting modification of timesharing. Evidence supported magistrate’s conclusion that while removing children from mother during dependency proceedings was temporary, a substantial change of circumstances had occurred based on former wife’s volatile relationship with her boyfriend which continued beyond the conclusion of dependency proceedings. Judge Mary Evans, reversed.

Idelson v. Carmer, 46 Fla.L.Weekly D997 (Fla. 2nd DCA 2021). Trial court erred in determining it did not need to find a change of circumstances to grant modification of timesharing. A final judgment incorporating a parenting plan can alter requisite showing necessary for future modifications, this final judgment did not. Judge Lee Ann Schreiber, affirmed in part, reversed in part.

J.G.J. v. J.H., 46 Fla.L.Weekly D993 (Fla. 2nd DCA 2021). Trial court erred modifying timesharing as relief for motion for contempt without finding a change of circumstances or that the change was in the child’s best interest. Judge Kelly P. Butz, affirmed in part, reversed in part.

Gibbs v. Gibbs, 46 Fla.L.Weekly D986 (Fla. 1st DCA 2021). Trial court affirmed for denying petition to modify alimony when court was unable to determine the former husband’s actual expenses, needs, ability to support himself and former husband’s “lifestyle & prospects” were completely at odds with his claim for reduced circumstances. Based on banking records and other evidence presented, the former husband’s expenditures on home improvements and other discretionary items, and his payment of debts and contingent obligations, rather than alimony, rendered his claimed loss of ability to pay not credible. Judge Russell Healey, affirmed.

Villalba v. Villalba, 46 Fla.L.Weekly D960 (Fla. 4th DCA 2021). Trial court affirmed for dismissing petition for modification that sought change in timesharing based on a parent’s mere move or life improvement to an environment more conducive to children, as that is not a substantial, material and unanticipated change in circumstances to justify modification of timesharing. Judge Sarah Willis, affirmed.

Valby v. Valby, 46 Fla.L.Weekly D944 (Fla. 4th DCA 2021). Trial court affirmed for modifying category of alimony from permanent to durational even though durational alimony did not exist at time of final judgment. Trial court affirmed for excluding $80,000.00 in debt incurred due to modification litigation from wife’s needs because attorney’s fees & costs are recoverable separately from alimony. Trial court erred failing to identify the expenses the court determined were inflated, and then did not explain the calculation. Judge Sarah Willis, affirmed in part, reversed in part.

Parenting:

Piccinini v. Waxer, 46 Fla.L.Weekly D1116 (Fla. 5th DCA 2021). Provision that father can have holiday timesharing if he provides two (2) week notice to mother and obtain her consent is erroneous, as it places his holiday timesharing at former wife’s discretion. Judge Donald A. Myers, Jr., affirmed in part, reversed in part.

Amiot v. Olmstead, 46 Fla.L.Weekly D1074 (Fla. 1st DCA 2021). Trial court improperly included a conditional provision for timesharing should a party relocate. Judge Elijah Smiley, affirmed in part, reversed in part.

Procedure:

Reuschel v. Reuschel, 46 Fla.L.Weekly D1131 (Fla. 1st DCA 2021). Motion to disqualify law firm representing husband and husband’s business rendered moot when business hired new attorney. Judge Peter K. Sieg, affirmed.

Delgado v. Delgado, 46 Fla.L.Weekly D1106 (Fla. 3rd DCA 2021). Trial court erred not allowing former husband to present evidence of latches to defend motion for contempt because it was not properly raised. Judge Migna Sanchez-Llorens, affirmed in part, reversed in part.

Bedwell v. Bedwell, 46 Fla.L.Weekly D1067 (Fla. 2nd DCA 2021). Where oral testimony is produced at trial and cause is left undetermined, the successor judge cannot render verdict or judgment without a trial de nova unless stipulated to on the record. Judges Leigh Frizzell Hayes and Carolyn Swift, affirmed in part, reversed in part.

Jean v. Jean, 46 Fla.L.Weekly D1061 (Fla. 2nd DCA 2021). Transcript of hearing not needed for exceptions, if exceptions only raise pure issues of law. Judge Lawrence Lefler, reversed.

Doddapaneni v. Doddapaneni, 46 Fla.L.Weekly D1054 (Fla. 5th DCA 2021). Trial court improperly granted relief not requested, when it ordered husband’s financial accounts be jointly-titled, as the only matter pending before the court was a motion to enjoin. Issue was not tried by consent. Judge Melissa Souto, reversed.

Velez v. LaFontaine, 46 Fla.L.Weekly D991 (Fla. 5th DCA 2021). Trial court erred changing child’s school and imposing costs, when the only matter scheduled for hearing was unrelated. Judge Diana M. Tennis, 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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