Family Law Case Updates – June 2021

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Editor: Caryn A. Stevens

Associate Editor: Gina Szapucki

Alimony:

Gardi v. Gardi, 46 Fla.L.Weekly D1340 (Fla. 4th DCA 2021). Trial court affirmed for awarding three (3) years durational alimony in an eight (8) year marriage as opposed to permanent alimony when court was skeptical of husband’s permanent disability. Judge Kathleen J. Kroll, affirmed.

Smith v. Smith, 46 Fla.L.Weekly D1239 (Fla. 5th DCA 2021). Trial court erred on face of judgment by finding husband lacked the ability to pay alimony when financial affidavit reflected it improperly included expenses for adult son. Judge Julie H. O’Kane, affirmed in part, reversed in part.

Appeals:

Smith v. Williams and Bailey, 46 Fla.L.Weekly D1321 (Fla. 5th DCA 2021). Father could not successfully appeal order denying motion for contempt without demonstrating fundamental error on the face of the order. Judge R. Gregg Jerald, affirmed.

Equitable Distribution:

Ouimette v. Ouimette, 46 Fla.L.Weekly D1252 (Fla. 2nd DCA 2021). Trial court affirmed for awarding retirement account to husband that was marked non-marital, when no evidence was presented to the contrary. Judge Jack Helinger, affirmed.

Sanders v. Peterson-Sanders, 46 Fla.L.Weekly D1224 (Fla. 4th DCA 2021). Trial court erred ignoring and not distributing five (5) credit cards on husband’s financial affidavit, when the debt was not contradicted. Trial court erred requiring husband to make an equalizing payment when he lacked the ability. Judge Dina A. Keever-Agrama, affirmed in part, reversed in part.

Injunctions:

Waite v. Chapman, 46 Fla.L.Weekly D1455 (Fla. 2nd DCA 2021). Injunction dismissed as moot because it expired during pendency of appeal. Instead of responding to motion to show cause as to why matter should not be dismissed as moot, appellant reargued the merits of her initial brief. There are three (3) exceptions to mootness rule: (1) when questions of great importance are implicated; (2) when issue is likely to reoccur; and (3) where collateral legal consequences affecting the rights of a party flow from the case. Because the appellant failed to address these exceptions, appeal is dismissed for mootness. Judge Artemeus McNeil.

Dean v. Bevis, 46 Fla.L.Weekly D1314 (Fla. 2nd DCA 2021). Trial court lacked statutory authority to prohibit a person from possessing firearms or ammunition upon the issuance of a temporary injunction for protection against stalking. Catch all provision that provides court “such relief as the court deems proper” in section 784.0485(5)(a), Florida Statutes, was not sufficient to grant court this authority. Judge Amy R. Hawthorne, reversed in part, affirmed in part.

Decker v. Munson, 46 Fla.L.Weekly D1244 (Fla. 2nd DCA 2021). Sending a social media ‘friend request’ and non-threatening contact made through a third-party was not sufficient to establish severe emotional distress to support a stalking injunction. Judge Jessica Costello, reversed.

Modification:

Idelson v. Carmer, 46 Fla.L.Weekly D1451 (Fla. 2nd DCA 2021). Trial court may modify parenting plan to include another child without substantial change in circumstances, when Marital Settlement Agreement (MSA) provided for it. However, the court could not make any other modifications without a substantial change in circumstances. Two (2) years elapsing after the judgment, and acrimony between the parties, was not sufficient to establish a substantial change. Judge Lee Ann Schreiber, affirmed in part, reversed in part.

Springer v. Springer, 46 Fla.L.Weekly D1374 (Fla. 2nd DCA 2021). Trial court erred modifying final judgment from party receiving a family dog to now receiving fair market value of a family dog. A dog is personal property and once a final judgment is rendered, personal property awards are fixed and not subject to modification. Judge Doneene D. Loar, affirmed in part, reversed in part.

Procedure:

Lykkebak v. Lykkebak, 46 Fla.L.Weekly D1450 (Fla. 5th DCA 2021). Trial court erred granting relief not requested in order. Trial court lacked authority to grant rehearing on non-final order, and therefore order is a nullity. Judge Vincent S. Chiu, affirmed in part, reversed in part.

DiGiacomo v. Mosquera, 46 Fla.L.Weekly D1390 (Fla. 3rd DCA 2021). Although Florida’s liberal policy directs that leave to amend “shall be given freely so when justice requires and generally resolving all doubts in favor of granting leave to amend,” such liberality is not unbridled. The trial court’s primary consideration in determining whether to grant leave to amend is prejudice to the opposing party. Here, the court is affirmed for denying motion for leave to amend seeking to file a counterpetition requesting alimony the Friday before trial, as the husband would be prejudiced. Judge Marcia B. Caballero, affirmed.

Bender v. Hornback, 46 Fla.L.Weekly D1377 (Fla. 2nd DCA 2021). Trial court erred granting emergency ex parte petition to domesticate, when the motion did not allege an emergency situation and court did not comply with section 61.528(2)(b), Florida Statutes, allowing respondent opportunity to contest registration of foreign judgment. Judge Catherine L. Combee, reversed.

In Re: Amendments to the Florida Supreme Court Approved Family Forms, 46 Fla.L.Weekly S182 (Fla. 2021). Supreme Court amends several injunction petitions/orders to conform with 2020 legislative changes.

Orozco v. Rodriguez-Amadeo, 46 Fla.L.Weekly D1304 (Fla. 3rd DCA 2021). Trial court erred granting temporary motion to suspend timesharing, as the wife was not afforded an opportunity to present her case. Due process is a guarantee implicated in timesharing proceedings, affording parties “a meaningful opportunity to be heard as well as the right to be apprised of all the evidence upon which an issue is to be decided, with the right to examine, explain or rebut such evidence.” Judge Bernard S. Shapiro, reversed.

Logreira v. Logreira, 46 Fla.L.Weekly D1297 (Fla. 3rd DCA 2021). Trial court erred modifying parenting plan without affording other party the opportunity to be heard and granting relief beyond what was requested in the pleadings. Judge Marcia Del Rey, reversed.

Lopez v. Frometa, 46 Fla.L.Weekly D1290 (Fla. 3rd DCA 2021). Trial courts sudden scheduling of a hearing, three (3) hours after the motion was filed, resulted in the deprivation of due process. Certiorari granted. Judge Martin Zilber’s order compelling hair follicle order, quashed.

Sanders v. Peterson-Sanders, 46 Fla.L.Weekly D1224 (Fla. 4th DCA 2021). Former Husband complained Judge put a three (3) hour time limit for trial violated his due process. However, husband never objected to time limitation and was not prevented from presenting evidence so this issue was affirmed. Judge Dina A. Keever-Agrama, affirmed in part, reversed in part.

Support:

Haddad v. Medina, 46 Fla.L.Weekly D1400 (Fla. 3rd DCA 2021). Trial court reversed for not attaching child support calculations to final paternity judgment. Judge Marcia B. Caballero, 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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