This BLOG provides brief summaries of the most recent family law appellate cases and statutes that may effect the issues our existing and prospective clients are facing. This is not an exhaustive list and do not automatically assume that if a case seems similar to your facts that the same result will be reached. We encourage individuals to secure counsel. These are very difficult issues to go through alone.
In this case involving a 21 year marriage, the trial court’s award of only one year of bridge the gap alimony was appropriate. The Court imputed income to wife of $50,000.00 as she had earned an amount comparable twenty years ago and there was evidence that Wife was limiting her income. Further, Wife took 4.5 million in assets in equitable distribution. The brief amount of bridge the gap alimony was crafted to allow Wife time to gain traction in her career and have her investments begin to yield revenue. As a rehabilitative plan was never provided it was only appropriate to award a small duration of bridge the gap alimony.
Further, the equitable distribution of the couple’s properties were indeed appropriate. While Wife claimed that she and Former Husband entered into a joint stipulation providing that the marital home would go to Former Husband and that the trial judge erred by ignoring their stipulation. She asserted that she could not afford the home’s overhead and that it will not be easy to sell the house, even with aggressive marketing. The parties, however, never “unequivocally agreed or stipulated to the court” to award the marital home to Former Husband. A binding agreement to convey real property from the marital estate to one of the parties requires a writing signed by the parties, or an explicit bilateral stipulation on the record before a court reporter. See § 725.01, Fla. Stat. Wife’s alleged joint stipulation had neither, and no agreement was “entered and filed” in accordance with section 61.075(3).
It was proper of trial Court to treat jewelry received by wife by husband as a marital asset.
Post petition spending by husband did not entitle wife to a credit as none of the spending was found to be waste.
Based on the accounting testimony provided, the trial judge did not err in determining that Former Husband’s advance distribution of his 401(k) account was $351,000 instead of $450,000, because of the deferred taxes withheld by the bank.
Trial courted erred in setting aside a default judgment of dissolution (with the exception of the portion of the judgment which dissolved the marriage) as the record did not contain competent, substantial evidence that the former husband did not receive notice. The standard of review of an order setting aside a default judgment is gross abuse of discretion. A certificate of service raises a presumption of delivery. A simple denial of receipt does not automatically overcome the presumption and an evidentiary hearing is necessary.
ATTEMPT TO USE CATCH-ALL LANGUAGE IN SECOND AGREEMENT UNSUCCESSFUL IN ESCAPING TERMS OF FIRST AGREEMENT
In first mediated agreement, it was noted that the parties have received a letter of protection for $33,000 and at such time as this or any other sum is actually available, the parties shall equally share in said asset.
After this agreement was made, the parties began actions to modify their judgment with regard to their shared children (child support and time sharing). A second agreement was reached which did away with the need for an income deduction order for child support as well as other issues involving the children but included language that the agreement “[was] intended to be a full settlement of all pending issues between the parties, except for any outstanding uncovered medical expenses for the minor children."
Former husband alleged that this did away with his obligation to pay any portion received from the $33,000.00 covered in the first agreement and filed a motion to enforce the second agreement on this point. The trial court granted husband’s motion
The 2nd DCA reversed finding that the split of sums flowing from the $33,000.00 letter of protection had already been established in the first agreement (the parties were simply waiting to receive payment on the letter to then divide). It therefore was not an “outstanding issue.” Further, the trial court should have found the husband in contempt for failure to pay child support as he did not challenge the finding of contempt and actually conceded that the trial court erred on appeal.
INCARCERATED FATHER STILL DESERVING OF DUE PROCESS
Trial Court erred in summarily denying incarcerated father’s motion for rehearing.
In his motion for rehearing and responses to the final order, the incarcerated father argued that he attempted to appear at the final hearing telephonically and that exhibits would show that he attempted to appear. Therefore, the trial court should have provided the father with an opportunity to prove on rehearing that he attempted to appear telephonically at the final hearing but that he was denied the opportunity to do so.
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Sullivan v. Hoff-Sullivan (First DCA) 12/2/11
The trial court should have determined the modification issue pursuant to the child support guidelines found in section 61.30, Florida Statutes. See § 61.30(1)(a), Fla. Stat. (“The child support guideline amount as determined by this section presumptively establishes the amount the trier of fact shall order as child support in an initial proceeding . . . or in a proceeding for modification of an existing order . . . .”); see also Finney v. Finney, 995 So. 2d 579, 581 (Fla. 1st DCA 2008) (noting that a trial court’s discretion concerning child support is subject to the statutory guidelines set forth in section 61.30).
Kernzer v. Kernzer (Third DCA) 11/30/11
A creditors attempt to pierce the claim of homestead rightfully failed.The creditor attempted to claim that the sale of the marital home and disbursement of proceeds under the MSA did not evidence a good faith belief that the funds would be used to reinvest into a new residence (citing the Myers case).However, this case was distinguishable from the Myers because the language of theMSA in this case did not contain the same broad language that “any and all outstanding judgments pending against” the husband would be paid from the proceeds of the sale of the marital home. Instead, the parties here agreed that any “lien or encumbrances on the marital home not specifically listed” in the parties’ MSA would be Stuart’s sole responsibility and would be paid from his share of the proceeds. There was no language in the MSA that Stuart would satisfy “all judgments pending” against him. The trial court correctly found that the judgments the creditor held against the party against did not constitute liens or encumbrances against the homestead property. See Prieto v. Eastern Nat. Bank, 719 So. 2d 1264, 1266 (Fla. 3d DCA 1998) (judgment held by general creditor not a “lien or encumbrance” on homestead property). The language of the Florida Constitution expressly provides that the homestead is exempt from forced sale under process of any court, and “no judgment, decree or execution shall be a lien thereon.”
Buhler v. Buhler (5th DCA) 12/2/11(Try to fight the urge to think of Matthew Broderick)
Trial Court erred in only allowing modification of child support based on husband’s failure to exercise time sharing to the date of the petition for modification.The Legislature has specifically provided that a parent's failure to exercise court-ordered or agreed-upon time-sharing, not caused by the other parent, resulting in the adjustment of child support "shall be deemed a substantial change of circumstances. . . ." § 61.30(11)(c), Fla. Stat. (2001). That modification is "retroactive to the date the noncustodial parent first failed to regularly exercise court- ordered or agreed visitation."
Trial court’s final judgment required that the parties sell the marital home, but permited the former husband to reside there, pending its sale, provided that he continued to be responsible for the mortgage, taxes, insurance and maintenance. However, the court did not allow any credit to the former husband for these expenses, finding that they were offset by the rental value of the property's use. This was error, as the trial court failed to make any findings as to the fair rental value of the marital residence. Therefore, on remand, the trial court must make express findings regarding the reasonable rental value and credit the former husband’s payments in excess of the fair rental value, if any, in accordance with section 61.077, Florida Statutes (2010).
Capo v. Capo (Fla 4thd DCA) 11/16/11
A final judgment is facially erroneous, requiring remand, where it does not make any findings as to the net income of each party as a starting point for calculating child support or explain how the calculation was performed
Mata v.Mata (Fla 3rd DCA) 11/16/11
Trial Court’s decision to allow mother to temporarily relocate to North Carolina with minor child was improper as court failed to follow the requirements of 61.13001(6)(b), Florida Statutes (2011). There was no indication in the record that the court received or considered evidence upon which to make findings that “there is a likelihood” that the court will approve a relocation on final hearing, findings which, in turn, must be “supported by the same factual basis as would be necessary to support approving the relocation in a final judgment.” In fact the trail court noted at the hearing on the mother’s emergency motion that it did not consider the factors outlined in section 61.13001 because it had not taken any evidence. This constituted error.
Witt v. Witt (Fla 2nd DCA) 11/18/11
Equitable distribution scheme in final judgment was unclear and therefore remanded for clarification. While a trial court has broad discretion to fashion an equitable distribution scheme, it must support its distribution with specific factual findings. Here, the trial court did not make specific findings regarding several issues. First, the court took testimony and found that the parties' contingent tax liability amounted to $100,000 without assigning this liability to either of the parties. Second, the court did not include the parties' stipulation regarding the value of the premarital portion of business assets or make clear findings regarding the remaining assets about which the parties disagreed. Further, the final judgment did not delineate the equitable distribution scheme to show what property the court found to be marital, what property it found to be nonmarital, and which party should receive each item as required by section 61.075(1).
The following very brief synopses are from recent non-binding orders from around the state. “Roy’s Desk” thanks Appellate attorney Kevin B. Weiss of Weiss Legal Group, P.A. for sending the complete orders over for review earlier this week.
SLS v SS (Lee County) FLWSUUPP 1901SCS 10/27/11
Because father may not have contact with mother or child pursuant to permanent injunction for protection against domestic violence, no time-sharing schedule is ordered
AGC v. CLS (Lee County) FLWSUPP 1901AGC2 10/25/11
Where father is in willful contempt of child support order, court will begin indirect criminal contempt proceeding under rule 3.840. Where father has THC in his body, time-sharing with child is suspended until father demonstrates that there is no THC in his body
Hernandez v. Fronter: 4th DCA 11/9/11:
It was error for trial court to permit such an extended and delayed repayment of child support arrearages. ($20 a month to satisfy $18,499.75 arrearage would have resulted in payments until child was 29).
Wu v. Xing: 3rd DCA 11/9/11:
Final judgment of dissolution was insufficient as a matter of law. Trial court had awarded sole legal ownership of the marital home to one party (the parties' only significant asset) without articulating specific findings of fact, based on competent substantial evidence, to support this award as required by 61.075(3).
Wright v. Wright: 1st DCA 11/9/11:
A judgment of dissolution of marriage that reserves jurisdiction over integrally related issues, although titled a final judgment, is not a final appealable order.
EFFECTIVE JANUARY 2012:
The Florida Supreme Court has adopted new/amended forms for use in Family law cases as follows:
12.913(a): Notice of Action for Dissolution of Marriage
12.913(b): Affidavit of Diligent Search and Inquiry
12.913(c): Affidavit of Diligent Search
12.913(a)(2): Notice of Action for Family Cases with Minor Child/Children
The following amendments with regard to alimony will go into effect on July 1, 2011. They will apply to all initial awards of alimony entered after July 1, 2011 and to all modifications of alimony made after July 1, 2011. However, the amendments cannot be used as a basis to modify awards (by either amount or duration) entered before July 1, 2011. The amendments will apply to all cases pending on or filed after July 1, 2011.
The following changes do not effect the language used in drafting agreements or in final judgments which are simply adopting agreements as to alimony. However, the amendments do create specific requirements for findings of facts and written findings when alimony is awarded by the court . Therefore, it is essential for all counsel to encourage the judiciary to make the required findings of fact when applicable. Further counsel needs to make sure that proper language is utilized in proposed final judgments (after trial) which are submitted to the Court. Otherwise, your client may have to face a costly appeal which may result in a remand for the Court to make the appropriate written findings.
ALL ALIMONY AWARDS:
No award of alimony may leave the paying party with significantly less net income than the net income of the receipient unless there are WRITTEN findings of EXCEPTIONAL CIRCUMSTANCES.
PERMANENT ALIMONY: Long Term Marriage (Over 17 years): IF such an award is appropriate upon consideration of the eight factors:
a) The standard of living established during the marriage,
b) The duration of the marriage,
c) The age and the physical and emotional condition of each party,
d) The financial resources of each party, including the nonmarital and the marital assets and liabilities distributed to each,
e) The earning capacities, educational levels, vocational skills, and employability of the parties and, when applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment
f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party,
g) The responsibilities each party will have with regard to any minor children they have in common,
h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment,
i) All sources of income available to either party, including income available to either party through investments of any asset held by that party,
j) Any other factor necessary to do equity and justice between the parties.
Moderate Duration Marriage (7 to 17 years):
You can get permanent alimony IF such an award is appropriate upon consideration of the above factors if the award is based upon CLEAR and CONVINCING evidence
Short Duration Marriage (0 to 7 years):
You can get permanent alimony IF there are WRITTEN FINDINGS of exceptional circumstances.
Regardless of length of marriage, if Permanent Periodic alimony is awarded there MUST a finding that no other form of alimony is fair and reasonable under the circumstances of the parties.
Can be allowed in long term marriages as opposed to permanent periodic alimony if there is no ongoing need for support on a permanent basis.
5TH DCA: Under prevailing law, the trial court must make findings to substantiate an award of attorney’s fees to allow for meaningful review.Court must award a reasonable fee, determined from testimony (absent any stipulations) as to the prevailing rates for attorneys in comparable circumstances and the amount of time reasonably expended by the attorney on the matter.
Poe v. Poe (May 20, 2011)
5th DCA: To justify a modification of child support, a movant must show: (1) a substantial
change in circumstances, (2) the change was not contemplated at the time of the divorce judgment, and (3) the change is sufficient, material, involuntary, and permanent."[A] showing of permanent change requires proof that the change is not temporary or transient, but rather encompasses an extended period of time."In this case, the court did not err in rejecting the testimony of the ex-wife and ex-husband’s employer both of which claimed the ex-husband was fired BEFORE the marital settlement agreement in favor of ex-husband’s testimony that he lost his job after the MSA was signed (credibility of witnesses is in the exclusive purview of the trial court).Further, it was not error to reject imputation of income on ex-husband based on loans he had received from his parents as there was no evidence that the loans were intended to be continuing and ongoing.However, it was error to impute income on former wife as there was nothing to refute her testimony that she was actually earning less.
Shelden v. Shelden (May 20, 2011)
2nd DCA:Former husband sought modification of alimony based on his unemployment for six months and wife co-habiting in a financially supportive relationship.The court found that former husband failed to prove the supportive relationship but did grant reduction based on unemployment.However, the order included “bizarre” language such as an indication that the parties would be granted a divorce (which had been granted previously).Further, the fact that the court file had been lost in conjunction with the limitations of the magistrate hearing, the case was remanded for a full hearing regarding whether former husband’s alimony should be reduced based upon change of income.
Ross v. Ross (May 18, 2011)
4th DCA:Court committed error by adopting the proposed order of former wife without allowing former husband to submit his own proposed order or to submit any objections (in this matter former wife sent in her proposed order without sending a copy to former husband and the court adopted it without change almost instantly).
Gordon v. Gordon (May 13, 2011)
5th DCA: Trial court made several errors in determining support obligations. Although a trial court can order a husband to pay a reasonable amount toward a wife's medical insurance premiums as part of a support award, it is error to require the husband to secure medical coverage without setting an amount or limitation on that obligation. Further, this payment of insurance premiums must calculate as a decrease in the husband's income and an increase in the wife's income. Further still, while life insurance can be ordered to secure alimony and child support orders, the amount of insurance required must be related to the amount of obligation to be covered. Private educational expenses may be awarded as part of child support when the parents have the ability to pay and such expemses are in accordance with the family's customary standard of living and are in the child's best interests.
Lule v. Lule (May 11, 2011)
4th DCA:Case had to be remanded for further findings as the trial court failed to comply with Florida Statutes 61.075(3) by not providing any basis for its decision including the awarding of the marital home to the former wife.It appears this award was made as “lump sum alimony” because the husband had abandoned the marriage.This was error.
2nd DCA: The trial court erred in its calculation of equitable distribution by counting certain funds twice. While husband claimed the court was attempting to allow an inequitable distribution, the order did not reflect such an intent or the proper findings of fact to explain the reasoning or the basis of calculation.
Grillo v. Clay (4/27/11)
4th DCA: Trial court committed error by modifying father’s support obligation and ordering him to pay for private preschool tuition without holding an evidentiary hearing on the motion first. Further, the order was defective on its face as it conditioned father’s contact with the child on his payment of the preschool tuition. “A parent’s visitation rights may not be conditioned on the payment of the parent’s financial obligations, including the payment of child support.”
Grover v. Grover (4/21/11)
5th DCA: Trial court erred by denying fees to a second attorney representing wife on the basis that there was no need for a second attorney. The issue for the Court on remand is whether the billing of the two attorneys should be reduced to the extent that there are duplicative entries.
Grimm v. Grimm (4/15/11)
1st DCA: Trial court erred by failing to consider wife’s non-marital assets when determining the issue of alimony. Further, while Social Security replacement plan benefits are marital assets, Social Security benefits are not. Further still, the court is not permitted to award the nonparticipating spouse other marital property to counterbalance the participating spouse’s Social Security benefits.
Liebrecht v. Liebrecht (4/15/11)
2nd DCA: Court abused its discretion in this matter for failing to award the Wife a nominal amount of permanent alimony. This was a fifteen year (gray area) marriage. The trial court only allowed bridge the gap alimony claiming that while the wife was indeed out of the work force for thirteen years she was relatively young, well-educated, and in good health. While there was no error in allowing bridge the gap alimony, the trial court should have allowed nominal permanent periodic alimony to allow Wife the chance to modify in the future if circumstances changed. While the 2nd DCA did not believe Wife’s position that she would not be able to gain meaningful employment, it was not share the optimism of the trial court that the Wife can definitively and realistically reenter the workforce after a thirteen-year gap in employment and achieve self-sufficiency in four years while also caring for the parties' three school-age children. Moreover, the historic incomes of the parties, the length of the marriage, and the Wife's potential future needs would normally dictate an award of permanent alimony
Maslow v. Edwards (and DOR) (4/15/11) Revised Opinion
5th DCA: On appeal, order modifying child support obligation and establishing arrearages was affirmed. However, a mathematical error was pointed out. More specifically, although this case involves disability benefits paid by the Veteran's Administration, rather than benefits paid by Social Security, there does not appear to be any reason to treat the two situations differently. The $159 paid to Maslow for the benefit of his son should be included in Maslow's income and the total family income figure.
Lacoste v. Lacoste (4/14/11)
1st DCA: While Wife challenged the veracity of Husband’s financial affidavits with expert testimony, trial court had discretion to disagree with Wife’s position and award child support pursuant to guidelines based upon the Husband’s affidavit and disclosure.
Braithwaite v. Braithwaite (4/14/11)
1st DCA: Premarital contributions to retirement pensions should be excluded when distributing marital assets. Further, court erred in considering the mortgage payment on the marital home as part of the Former Wife’s expenses in the alimony determination because the parties were sharing the marital home until it could be sold and the Former Husband was ordered to make the mortgage payments. Finally, trial court erred in describing the marriage of 14 years as a long term marriage as it is, instead, a “gray area” marriage. (7-17 year marriage are moderate in length pursuant to 61.08(4) Fla. Stat.
Kennedy v. Kennedy (4/13/11)
2nd DCA: Denial of alimony to wife was reversed. Court noted that there is an “unfortunate tendency among many courts and practitioners to treat ‘gray area marriage’ classification as a justification in itself for denying alimony-as if the classification excuses full consideration of the factors set forth in the alimony statute. To the contrary, the classification simply means that in a gray area marriage the court’s discretion is not to be influenced by a presumption for or against the award of permanent alimony. As such, a court’s discretion whether to award alimony is at its broadest when applied to a gray area marriage. And it is for that very reason that the court’s consideration of the statutory factors and its findings in regard to them are most important.” Once again these factors are:
In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.
(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) All sources of income available to either party. -3-The court may consider any other factor necessary to do equity and justice between the parties.
In the instant case, the trial court did not make the appropriate findings and therefore it was reversed for a completed opinion,
Straney v. Floethe (4/8/11)
2nd DCA:It is well established that an order modifying child custody must be based on a determination that: (1) a substantial and material change in circumstances has occurred since the entry of the final judgment, (2) it is in the child's best interest to modify custody, and (3) the change in circumstances was not reasonably contemplated when the trial court entered the original final judgment. However, in making the modification the court must also consider the factors in section 61.13(3). The case law does not require the trial court to enter detailed findings under these factors. In this case, the trial court failed make any findings as to whether the three criteria above were met. Therefore it was returned to the trial court for further findings.
NEWS NOTE APRIL 7, 2011: Florida Supreme Court has approved the new forms pertaining to petitions for temporary or concurrent custody. For access to a list of the forms, and copies of the forms themselves, click the following link to access the opinion and the forms, which are made part of the opinion: http://www.floridasupremecourt.org/decisions/2011/sc10-2344.pdf
Flores v. Flores (4/6/11)
4th DCA: Where party requests attorney’s fees (in this case both in response to the petition and in closing argument), the failure of the final judgment to address attorney’s fees (whether granting, denying, or reserving jurisdiction to determine) is error which must be addressed on remand.
Moreno v. Moreno (4/6/11)
3rd DCA: Parties previously entered into an agreed order for non-harassment, which stated, in part, that each party was “enjoined from harassing and making disparaging statements against the [other] to the parties’ minor children, employers and other third parties.” The agreed order also provided that “the parties understand that violation of this paragraph shall subject the offending party to sanctions being imposed upon them by the Court.” After the divorce, Wife published a book about the “real story” behind the divorce and appeared on talk shows regarding the book. On a motion for contempt and for sanctions, the trial court denied the contempt and did not impose sanctions. The 3rd DCA found that given the clear and mandatory language of the agreement the trial court did not have discretion to deny the imposition of sanctions or the finding of contempt.
Hughes v. Kruger (4/1/11)
5th DCA: Case regards an appeal of the trial court’s accounting of the income and expenses related to two marital properties which the parties were designated as tenants-in-common with 75% and 25% respective shares. The first property was leased to a commercial tenant. The second property was used by Husband to run his business. The parties were ordered to apportion rental income and expenses based upon their ownership shares. During the 19 years since their divorce, Husband paid sums to Wife for her portion of the rents collected on the first property. No amounts were paid to Wife for the second property. Trial court committed error in combining the two properties together in determining what should be paid to Wife. The error stemmed from the differential treatment of the properties. More specifically, as to the second property, “a tenant in common who has exclusive possession of real property and who uses it for his own benefit without receiving any rents or profits therefrom, is not liable or accountable to a co-tenant out of possession unless such possession is adverse to or as a result of ouster.” In this case, the possession was not adverse and there was no evidence of ouster. As to the first property, Wife was only entitled to her proportionate share of actual rental income (not fair market rental value) less her proportionate share of necessary expenses.
Kight v. Kight (4/1/11)
5th DCA: While Simplified Employee Pension IRA was properly designated as a marital asset, a $6,000.00 deposit in the account after the dissolution proceedings were filed should not have been treated as marital.
Teague v. Girtman (4/1/11)
5th DCA: Reversal was proper as Father timely objected to use of magistrate. Further, Father’s motion to disqualify judge was properly denied as the motion was based on events at a hearing two months before the motion. Therefore, the motion was untimely pursuant to Florida Rule of Judicial Administration 2.330(e) (a ten day limit).
Green v. Williams (4/1/11)
5th DCA: A third-party alleging joint ownership of monies in a bank account has standing to challenge the garnishment of those funds. However, in this case, the alleged joint owner insufficiently raised this claim as his petition was not sworn to and only contained conclusory statements of ownership. Reversed and remanded for alleged co-owner to correct his petition, if possible.
Brend v. Brend (4/1/11)
2nd DCA: It was error to compute child support based on gross income of the parties as opposed to the parties’ net incomes.