Family Law Case Updates – November 2021

November 2021 Family Law Case Summaries

Author: Eddie Stephens

Editor: Caryn A. Stevens

Associate Editor: Gina Szapucki

Agreements:

Pardes v. Pardes, 46 Fla.L.Weekly D2320 (Fla. 3^rd DCA 2021). Trial court affirmed for categorizing wife’s residence, which was defined as separate property, as non-marital. The fact the parties lived in this house during marriage is not donative intent to establish an interspousal gift. The court reversed for awarding certain artwork to husband when postnuptial agreement said all art in the house was wife’s separate property. Judge Stanford Blake, affirmed in part, reversed in part.

Alimony:

Harby v. Harby, 46 Fla.L.Weekly D2453 (Fla. 2^nd DCA 2021). Trial court erred including automatic increase in alimony upon a change of circumstances. Judge Alicia Polk, affirmed in part, reversed in part.

Watrel v. Watrel, 46 Fla.L.Weekly D2430 (Fla. 1^st DCA 2021). Trial court erred by failing to include the former wife’s ability to contribute to her own support in its alimony calculations. Judge Gregg McCaulie, affirmed in part, reversed in part.

Dills v. Perez, 46 Fla.L.Weekly D2385 (Fla. 5^th DCA 2021). Trial court erred terminating “non-modifiable” durational alimony upon the Wife’s remarriage. The express inclusion of “non-modifiable” in the parties’ Marital Settlement Agreement prohibited the termination of alimony upon remarriage. A provision in an MSA will overcome the contradictory applicable statute, if the contractual terms are clear and unambiguous in which case the plain meaning of the express term will prevail. Judge Stasia Warren, reversed.

Appeals:

Charles v. Williams, 46 Fla.L.Weekly D2345 (Fla. 5^th DCA 2021). Appeal of paternity judgment from 2016 was untimely and therefore, dismissed.

Attorney’s Fees:

Whittaker v. Whittaker, 46 Fla.L.Weekly D2474 (Fla. 4^th DCA 2021). Trial court erred finding husband had ability to pay wife’s attorney’s fees because his parents paid his fees. Trial court may not consider assistance of friends, and there was no evidence the payments would continue so the court could not impute income. Judge Scott Suskauer, affirmed in part, reversed in part.

Toth v. Miller, 46 Fla.L.Weekly D2445 (Fla. 2^nd DCA 2021). Trial court denied party due process by awarding “inequitable conduct” attorney’s fees without holding a hearing on the matter. Judge G. Keith Cary, affirmed in part, reversed in part.

Watrel v. Watrel, 46 Fla.L.Weekly D2430 (Fla. 1^st DCA 2021). Trial court erred awarding a portion of the wife’s fees, but not all fees, when wife had a need and husband had the ability, and the trial court gave no analysis to explain rationale. Judge Gregg McCaulie, affirmed in part, reversed in part.

Marcellus v. Peterson, 46 Fla.L.Weekly D2336 (Fla. 4^th DCA 2021). Court awarded $282,105.34 for fees for bad faith litigation based on inequitable conduct doctrine. Entitlement affirmed, but amount reversed. Trial court must make express finding of bad faith conduct supported by detailed findings describing the specific acts of bad conduct. In addition, fees awarded must be directly related to fees incurred for bad faith conduct. Judge Michael I. Rothschild, affirmed in part, reversed in part.

Equitable Distribution:

Whittaker v. Whittaker, 46 Fla.L.Weekly D2474 (Fla. 4^th DCA 2021). Trial court erred not distributing husband’s marital credit cards and HELOC in equitable distribution. Judge Scott Suskauer, affirmed in part, reversed in part.

Harby v. Harby, 46 Fla.L.Weekly D2453 (Fla. 2^nd DCA 2021). Trial court affirmed for awarding two dogs to husband. Detailed discussion of equitable distribution of pets. Judge Alicia Polk, affirmed in part, reversed in part.

Income:

Damask v. Ryabchenko, 46 Fla.L.Weekly D2328 (Fla. 4^th DCA 2021). Trial court erred imputing $580,934.00 in annual income to husband. Because husband lost his job due to misconduct, reduction was properly deemed voluntarily. The second step of the analysis is whether subsequent employment or unemployment resulted from party’s pursuit of old interests; or less than diligent and bona fide efforts to find employment paying income at a level equal to or better than what was formerly received. The trial court may only impute a level of income supported by evidence of a potential and probable earnings based on history, qualifications, and prevailing wages. The party seeking to impute income bears the burden of identifying the amount and source of the imputed income through evidence of income from available employment for which the party is suitably qualified for by education, experiences, current licensure, or geographic location. Past average income, unless it reflects current reality, simply is meaningless in determination of income today. “Past average income will not put bread on the table today.” Because the court did not make findings of party’s recent work history, occupational qualifications, or prevailing wages in community, imputation reversed. Judge Dina A. Keever-Agrama, reversed.

Imputation:

Gillespie v. Minning, 46 Fla.L.Weekly D2355 (Fla. 2^nd DCA 2021). Court reversed for imputing income to the wife based on what she could earn in Florida, when she had already relocated to another state. Judge Elizabeth V. Krier, affirmed in part, reversed in part.

Modifications:

Essa v. Pepe-Katalinas, 46 Fla.L.Weekly D2442 (Fla. 5^th DCA 2021). A court may not modify a final parenting plan on a temporary basis, absent an emergency. Judge Charles J. Roberts, reversed.

Parenting:

Reynolds v. Reynolds, 46 Fla.L.Weekly D2497 (Fla. 1^st DCA 2021). Trial court denied wife’s due process by making initial custody determination without allowing wife to present argument or evidence. Wife had absconded with the child. Judge Kelvin C. Wells, reversed.

Pescod v. Irvin, 46 Fla.L.Weekly D2452 (Fla. 2^nd DCA 2021). Trial court erred entering an ex parte order limiting timesharing and requiring reunification therapy solely upon the receipt of the Guardian Ad Litem’s recommendations without an evidentiary hearing. Judge Jack St. Arnold, reversed.

Procedure:

Schmoker v. Schmoker, 46 Fla.L.Weekly D2354 (Fla. 2^nd DCA 2021). Trial court erred for dismissing divorce for lack of jurisdiction because one party previously filed for divorce but voluntarily dismissed it. Here, the court had personal jurisdiction because both parties filed pleadings requesting affirmative relief. The court had subject matter jurisdiction because one party had been a continuous resident of Florida for six months preceding filing. Judge Lawrence M. Lefler, reversed.

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.