Family Law Case Updates – July 2021

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Family Law Case Updates – July 2021

Editor: Caryn A. Stevens

Associate Editor: Gina Szapucki

Alimony:

Taylor v. Davis, 46 Fla.L.Weekly D1634 (Fla. 1st DCA 2021). Trial court erred awarding permanent alimony in three (3) year marriage when the parties cohabitated for twenty-four (24) years before the marriage. There is no palimony in Florida. There are no legal rights or duties flowing from cohabitation. Judge John I. Guy, reversed.

Appeals:

Odeh v. Odeh, 46 Fla.L.Weekly D1649 (Fla. 5th DCA 2021). Order denying a 57.105 motion for fees is a non-final order not subject to appeal while the underlying action is pending. This is viewed differently than 61.16 fees. Dan. R. Mosley, Judge, appeal dismissed.

Guglielmi v. Guglielmi, 46 Fla.L.Weekly D1579 (Fla. 1st DCA 2021). Because former wife appealed the order denying a motion to vacate underlying order, instead of appealing the actual underlying order, appellate court is without jurisdiction to consider appeal. Judge Daniel F. Wilensky, appeal dismissed.

Schmidt v. Schmidt, 46 Fla.L.Weekly D1480 (Fla. 4th DCA 2021). Order that determines entitlement to fees, but not amount, is not a final order subject to appeal. Judge Scott Suskauer, affirmed in part, reversed in part.

Attorney’s Fees:

Smith v. Fenton-Smith, 46 Fla.L.Weekly D1510 (Fla. 5th DCA 2021). Trial court erred awarding attorney’s fees when it failed to consider the financial positions of the parties after the divorce. Judge Dan R. Mosley, reversed.

Enforcement:

Moore v. Moore, 46 Fla.L.Weekly D1507 (Fla. 5th DCA 2021). Trial court erred failing to give former husband $11,000.00 credit based on latches, when evidence was undisputed that former husband has paid. Judge Julie H. O’Kane, affirmed in part, reversed in part.

Finch v. Cribbs, 46 Fla.L.Weekly D1467 (Fla. 1st DCA 2021). Trial court contempt purge affirmed. The trial court is not limited to the amount of cash immediately available to the contemnor; rather, the court may look at all assets from which the amount might be obtained. This means a trial court is not cabined by what it suspects is the under reported income of a self-employed spouse, especially when that spouse has failed to disclose the pertinent financial information to back his claim. Where the self-employed spouse’s own misconduct is responsible for the inability of the trial court to accurately determine his income, he cannot then complain about the trial court’s reliance on unexplained withdrawals and indicators of a comfortable lifestyle that contradict his claimed inability to pay. The trial court has the discretion to consider the self-employed spouses available business assets in these circumstances when deciding ability to pay. Judge Lance M. Day, affirmed.

Equitable Distribution:

Tanner v. Tanner, 46 Fla.L.Weekly D1564 (Fla. 1st DCA 2021). Trial court erred granting future Georgia football future season tickets and parking passes when those assets were not acquired during the marriage. It is error to award unequal distribution without findings of dissipation. Judge Robert M. Foster, reversed. Supersedes opinion at 46 Fla.L.Weekly D826a, pursuant to a motion for rehearing/clarification.

Injunctions:

Bradley v. Slyman, 46 Fla.L.Weekly D1701 (Fla. 5th DCA 2021). Court erred dissolving injunction when respondent failed to demonstrate changed circumstances sufficient to demonstrate the scenario underlying the injunction no longer exists, so the continuation of the injunction would secure no valid purpose. Judge Joan Anthony, reversed.

Cyrus v. Cyrus, 46 Fla.L.Weekly D1662 (Fla. 1st DCA 2021). Respondent challenges the court’s denial of a motion to dismiss injunction and motion for return of firearms. However, without a transcript, it cannot be determined if the trial court abused its discretion. Judge John L. Miller, affirmed.

Bilby v. Wilson, Fla.L.Weekly D1648 (Fla. 5th DCA 2021). Public school media posts that are damaging to someone’s reputation do not form a basis for a stalking injunction. Judge Jerri Collins, reversed.

Whitfield v. Meeks o/b/o K.M.M., Fla.L.Weekly D1639 (Fla. 1st DCA 2021). Trial court erred granting domestic violence injunction on insufficient evidence and denied respondent due process by denying him the opportunity to present relevant witnesses. Judge Terrance R. Ketchel, reversed.

Caddy v. Robinson, 46 Fla.L.Weekly D1536 (Fla. 4th DCA 2021). Domestic violence injunction against respondent affirmed except for portion that gave 100% timesharing of parties’ minor children to the petitioner. Because the parties were also involved in family court proceedings, this usurped authority of family court. Abbreviated domestic violence proceedings should not become the primary forum to determine family law issues. The better practice would be for the court to enter a temporary order and direct the parties to litigate these other issues in family court. Judge Arthur M. Birken, affirmed in part, reversed in part.

Ditanna v. Edwards, 46 Fla.L.Weekly D1533 (Fla. 4th DCA 2021). To the extent an injunction prevents respondent from speaking about petitioner to his employer, it constitutes a prior restraint and violates the First Amendment. Otherwise, affirmed. Judge Charles E. Burton, affirmed in part, reversed in part.

Peck v. Rosado, 46 Fla.L.Weekly D1508 (Fla. 5th DCA 2021). Trial court deprived respondent of due process by modifying injunction when the only matter noticed was contempt for violation of injunction. Further, contempt should be reversed because injunction gave insufficient directives to respondent as to how she can live in her house and stay 500 feet away from her neighbor. The court should have tailored injunction to fit the facts of the case. Judge Christopher A. France, reversed.

Marquez v. Rivera, 46 Fla.L.Weekly D1480 (Fla. 4th DCA 2021). Trial court reversed for extending temporary injunction without good cause. Judge Stefanie C. Moon, reversed.

Freeman v. Rogers, 46 Fla.L.Weekly D1461 (Fla. 2nd DCA 2021). Trial court reversed for entering injunction against stalking when respondent was unable to log in for hearing and raised issue in rehearing. Judge Reinaldo J. Ojeda, reversed.

Modification:

Patel v. Patel, 46 Fla.L.Weekly D1661 (Fla. 1st DCA 2021). Trial court erred modifying timesharing schedule based on a motion for contempt. Neither the motion for contempt alleged, nor the written order found, a substantial, material, and unanticipated change in circumstances which would warrant a timesharing modification. Judge Kelvin C. Wells, reversed.

Klokow v. Klokow, 46 Fla.L.Weekly D1574 (Fla. 5th DCA 2021). Trial court properly found a supportive relationship existed, but erred in failing to address alimony to the extent the former wife used her alimony to support and offset her boyfriend’s expenses. Trial court also erred not granting modification based on former husband’s reduction in income. Judge Steven C. Henderson, affirmed in part, reversed in part.

Parenting:

Louis v. Louis, 46 Fla.L.Weekly D1591 (Fla. 4th DCA 2021). Trial court erred awarding ultimate decision making on all major decisions, because the court must delineate the areas of parental responsibility. Judges Vegina Hawkins and Frank D. Ledee, affirmed in part, reversed in part.

Piccinini v. Waxer, 46 Fla.L.Weekly D1569 (Fla. 5th DCA 2021). On rehearing, a factual error in footnote Z corrected. Original opinion at 46 Fla.L.Weekly D1116b otherwise, affirmed.

Barrack v. Barrack, 46 Fla.L.Weekly D1550 (Fla. 4th DCA 2021). Trial court erred entering a post judgment order that temporarily modified former husband’s timesharing and impermissibly delegates trial court’s authority to reestablish timesharing to the former wife and therapists. Judge Nickolaus Hunter Davis, affirmed in part, reversed in part.

Procedure:

Grey v. Grey, 46 Fla.L.Weekly D1700 (Fla. 5th DCA 2021). Trial court erred rewriting the terms of the parties’ settlement agreement. The court can clarify, which makes it clearer, or make it more precise; however, a modification changes the status quo and alters the rights and obligations of the parties. Judge Alicia L. Latimore, reversed.

Perez v. Maldonato, 46 Fla.L.Weekly D1675 (Fla. 3rd DCA 2021). Trial court erred ordering visitation at a hearing that was noticed as a non-evidentiary motion to dismiss. Judge Stacy D. Glick, reversed.

Schultz v. Schultz, 46 Fla.L.Weekly D1672 (Fla. 3rd DCA 2021). Former Husband sought writ of certiorari over courts overruling his discovery objections. Former husband alleged he stipulated to an ability to pay, but the stipulation is not in the record. Wife was entitled to all surveillance documents husband was going to use at the hearing. Judge Christina Marie DiRaimondo, petition denied.

Asad v. Sheikh, 46 Fla.L.Weekly D1599 (Fla. 5th DCA 2021). Trial court reversed for not allowing evidentiary hearing on properly pled motion to reform mediated agreement that alleges claim of relief based on mutual mistake. Judge Michael J. Rudisill, reversed.

Conklin v. Perez, 46 Fla.L.Weekly D1531 (Fla. 4th DCA 2021). Trial court affirmed except matter remanded to fix scrivener’s error, where the trial court wrote petitioner when it meant respondent. Judge Renatha Francis, affirmed and remanded.

A.V. v. T.L.L., 46 Fla.L.Weekly D1526 (Fla. 2nd DCA 2021). Magistrate erred allowing key witness to testify by phone without a finding of good cause. Error compounded when the witness was not properly sworn in without a notary present to identify him. Judge Alicia Polk, reversed.

In Re: Amendments to Florida Family Law Rules of Procedure 12.510, 46 Fla.Law.Weekly S224 (Fla. 2021). Modifies summary judgment rules.

Merino v. Powell, 46 Fla.L.Weekly D1507 (Fla. 5th DCA 2021). Writ of prohibition on motion to disqualify judge dismissed with opinion criticizing filing attorney for presenting facts out of context and cautioning attorneys who take a case that has been pending to be ready for trial. Writ of prohibition against Judge John D.W. Beamer, denied.

Support:

Cooper v. Cooper, 46 Fla.L.Weekly D1506 (Fla. 5th DCA 2021). Trial court erred as a matter of law using 72 overnights for calculating child support when father had 78 overnights. Judge Bryan Rendzio, 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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