October 2021 Family Law Case Summaries
Author: Eddie Stephens
Editor: Caryn A. Stevens
Associate Editor: Gina Szapucki
Alimony:
Hamilton v. Hamilton, 46 Fla.L.Weekly D2249 (Fla. 1st DCA 2021). Husband waived argument that wife was awarded more alimony than requested by not seeking a rehearing. However, the child’s expenses included in wife’s monthly alimony award should be removed, and further consideration given to the alimony award. Judge Thomas V. Dannheisser, affirmed in part, reversed in part.
Appeals:
Leiper v. Leiper, 46 Fla.L.Weekly D2284 (Fla. 4th DCA 2021). An order that determines entitlement to fees, but not amount, is unripe for appellate review. Judge N. Hunter Davis, affirmed in part, dismissed in part.
Chamblee v. Figueroa, 46 Fla.L.Weekly D2182 (Fla. 4th DCA 2021). Motion for rehearing on stalking injunction that did not contain a certificate of service was not authorized, and therefore did not toll time for appeal. Judge Michael G. Kaplan, dismissed.
Robles v. Castellanos, 46 Fla.L.Weekly D2105 (Fla. 5th DCA 2021). Without transcript or statement of evidence approved by the trial court, appellate court has no ability to determine whether the injunction was without evidentiary support. Judge Christy Collins, affirmed.
Attorney Fees:
Abouzaid v. Helmy, 46 Fla.L.Weekly D2216 (Fla. 5th DCA 2021). Appellate court granted appellate fees to party conditioned on circuit court finding need and ability. One judge dissented, opining appeal had no merit and the party should therefore be disqualified for award of appellate fees. Judge Alice Blackwell, previously affirmed on the underlying appeal.
Mantegazza Pomelli v. Mantegazza Pomelli, 46 Fla.L.Weekly D2190 (Fla. 3rd DCA 2021). Section 57.105 fees affirmed, but sanctions awarded based on court’s inherent authority were remanded because litigant was not on notice. Judge David C. Miller, affirmed in part, reversed in part.
Levy v. Levy, 46 Fla.L.Weekly S287 (Fla. 2021). Resolves the Levy and Sacket conflict. Because the attorney’s fee provision is not unilateral, section 57.105(7) does not apply, as it would confer a right not in the contract. Levy quashed. Sacket approved.
Equitable Distribution:
Hamilton v. Hamilton, 46 Fla.L.Weekly D2249 (Fla. 1st DCA 2021). Trial court erred classifying husband’s corporate debt as non-marital. The burden is on the person seeking to find liability classified as non-marital. Judge Thomas V. Dannheisser, affirmed in part, reversed in part.
Imputation:
Nadeau v. Reeves, 46 Fla.L.Weekly D2282 (Fla. 4th DCA 2021). Trial court erred imputing support of wife’s new husband who pays for her expenses. In computing child support when a parent has remarried, it is error to use new spouse’s contributions to inflate income of a remarried parent. Judge Renatha S. Francis, affirmed in part, reversed in part.
Income:
Douglas v. Bryson Douglas, 46 Fla.L.Weekly D2215 (Fla. 5th DCA 2021). Trial court did not impute income to husband who is a basketball player now playing in European league. Court resolved the conflict in evidence. Court affirmed for not imputing income to wife when husband failed to offer evidence of local jobs the wife was qualified for. Judge Donna L. McIntosh, affirmed in part, reversed in part.
Gupta v. Gupta, 46 Fla.L.Weekly D2166 (Fla. 5th DCA 2021). Trial court made no findings as to rental value for husband living with his family for free, so the court could not impute income. Judge Diana M. Tennis, affirmed in part, reversed in part.
Injunctions:
Reilly v. Reilly, 46 Fla.L.Weekly D2247 (Fla. 1st DCA 2021). Trial court reversed for entering summary order denying stalking injunction without explanation. Petitioner is entitled to an order specifying deficiencies in the allegations, or a an evidentiary hearing. Judge Shonna Young Gay, reversed.
Delgado v. Delgado Ortiz, 46 Fla.L.Weekly D2165 (Fla. 5th DCA 2021). While evidence on domestic violence injunction was conflicting, there was competent substantial evidence to support the trial court’s determination. Judge Jessica J. Recksiedler, affirmed.
Dept. of Children & Families v. Manners, 46 Fla.L.Weekly D2161 (Fla. 5th DCA 2021). Trial court erred excluding child hearsay from Chapter 39 Injunction hearing. Per section 39.504(3), hearsay is allowed so long as it has probative value and is relevant and material to case. Judge Peter Brigham, reversed.
Files v. Hayes, 46 Fla.L.Weekly D2098 (Fla. 1st DCA 2021). Injunction entered based on allegations from three years ago reversed as threat of harm was not imminent. Judge Lacey Powell Clark, reversed.
Modifications:
Nicholas v. Grant, 46 Fla.L.Weekly D2281 (Fla. 2nd DCA 2021). Trial court erred granting unsupervised visitation, when relief was not requested nor did the court consider the child’s best interest. Judge Darren D. Farfante, affirmed in part, reversed in part.
Tanner v. Tanner, 46 Fla.L.Weekly D2275 (Fla. 2nd DCA 2021). Trial court erred finding husband’s retirement unreasonable, based upon husband retiring six months before presumptive age of 65, and his poor health. Judge Catherine L. Combee, affirmed in part, reversed in part.
Franz v. Franz, 46 Fla.L.Weekly D2241 (Fla. 2nd DCA 2021). Trial court erred making alimony modification retroactive to date of filing. Modification was based on wife receiving social security, so in this case it should be retroactive to when wife began receiving social security. Judge Christopher M. Labruzzo, affirmed in part, reversed in part.
Parenting:
Jennings v. Fredes, 46 Fla.L.Weekly D2093 (Fla. 1st DCA 2021). Trial court erred awarding timesharing schedule and alternative timesharing schedule should one parent move back. Local conditional timesharing schedule stricken. Judge Barbara K. Hobbs, affirmed in part, reversed in part.
Procedure:
In Re: Amendments to the Florida Rules of Civil Procedure, et. al. 46 Fla.L.Weekly S323. Changes “Florida Rules of Judicial Administration” to “Florida Rules of General Practice and Judicial Administration.”
Vialva v. Nunez, 46 Fla.L.Weekly D2189 (Fla. 3rd DCA 2021). Regarding disqualification of Judges, Fla. Stat. 38.10(f) provides that additional or substitute counsel coming off of a case cannot be the basis for disqualification. Here, the attorney who previously disqualified Judge based on remarks made towards the attorney, took over a case that was pending when his client was pro se. Here, this attorney was not an additional or substitute counsel, so Fla. Stat. 38.10(f) does not apply.
Minus v. Brockman, 46 Fla.L.Weekly D2182 (Fla. 4th DCA 2021). Judgment with minor children that does not attach child support guidelines or a parenting plan must be reversed. Judge Dina Keever-Agrama, affirmed in part, reversed in part.
Relocation:
Duryea v. Bono, 46 Fla.L.Weekly D2276 (Fla. 2nd DCA 2021). Trial court erred concluding previous granting of relocation was temporary because it occurred during the pendency of divorce. There is no language in the order that the previous relocation was temporary. Judges Stephen M. Walker and Thomas Krug, affirmed in part, reversed in part.
Support:
Douglas v. Bryson Douglas, 46 Fla.L.Weekly D2215 (Fla. 5th DCA 2021). Trial court erred requiring husband to set money aside for the child’s college expenses. Judge Donna L. McIntosh, affirmed in part, reversed in part.
UCCJEA:
Miller v. Mitchell, 46 Fla.L.Weekly D2186 (Fla. 3rd DCA 2021). Party sought writ of prohibition against court for exercising jurisdiction over minor child. Even though the child was not in Florida when the action was filed, the court properly found the child’s home state was Florida.
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.
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