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Firm Shield

Sunday, May 22, 2011

May 11 - May 20, 2011

Kemp v. Kemp (May 20, 2011)
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.

Thursday, May 19, 2011

April 2011 Cases:

Fuentes v. Fuentes (4/27/11)
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:

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.

March 2011 Cases:

Kaaa v. Kaaa (3/31/11) Revision of September 30, 2010 opinion
Court determined whether and under what circumstances the passive appreciation of a marital home that is deemed nonmarital real property is subject to equitable distribution under section 61.075(5)(a)(2), Florida Statutes (2007).  The Florida Supreme Court found that contingent upon certain findings of fact by the trial court, passive appreciation of the marital home that accrues during the marriage is subject to equitable distribution even though the home itself is a nonmarital asset.
The question before the Court was answered as follows:
When a marital home constitutes nonmarital real property, but is encumbered by a mortgage that marital funds service, the value of the passive, market-driven appreciation of the property that accrues during the course of the marriage is a marital asset subject to equitable distribution under section 61.075(5)(a)(2), Florida Statutes (2007).

Wagner v. Wagner (3/31/11)
1st DCA: Section 61.075(3)(b), Florida Statutes, provides that a judgment distributing assets in a dissolution proceeding shall clearly identify marital and non-marital assets, include an “individual valuation of significant assets,” and identify which spouse is awarded which assets. This holds true even if neither party provides any evidence as to the value of certain assets. Consequently, it was error for the trial court to fail to identify and include a valuation of the marital home furnishings.  Further, the trial court erred in allowing an unequal distribution of marital assets without an explanation of why.  One party’s assertion that the difference of less than 5% is “close enough” is not proper.  “Close enough” is not the applicable standard for justifying an unequal distribution of marital and non-marital assets. Section 61.075(1), Florida Statutes, requires that when distributing the parties’ assets, “the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors” and lists the factors that must be considered.  A trial court may avoid the obligation to divide marital assets equally by making written findings justifying the decision. Maddox v. Maddox, 750 So. 2d 693, 694 The reviewing court should determine whether competent substantial evidence supports the equitable distribution of marital assets.

Orloff v. Orloff (3/30/11)
2nd DCA: Corporation incorporated prior to marriage (even though it was reincorporated several times during the marriage as the couple moved to different states) is not a marital asset. However, on remand, any enhancement in value of the corporation since the date the parties married would be properly considered a marital asset if, during the marriage, such enhancement was due to the husband or wife’s contribution of marital labor or marital funds. See § 61.075(6)(a)(1)(b).

Lampert v. Lampert (3/30/11)
4th DCA: After dissolution, parties agreed that the amount of support and child support payable by father was too high given his finances.  The parties then entered into an agreement changing the duties of child support and recalculating equitable distribution.  After this, wife moved to set aside the portions of the subsequent agreement as it pertained to child support as not being in the best interests of the children.  Magistrate set aside the portions as requested and left the other portions, which regarded renegotiated equitable distribution, in place.  4th DCA found this to be proper but remanded the issue to the trial court to determine what credits, if any, father should receive for the recalculations.

David v. David (3/25/11)
5th DCA:  It was error for trial court to unequally divide the marital credit card debt solely based upon the parties’ relative incomes.  It was also error to allow a special equity in the marital home to one party based only on evidence that one spouse provided non-marital funds to purchase the marital home.  No evidence was provided to establish that this was not a gift to the marriage.  Finally, where neither party provided evidence concerning the need to secure the alimony obligation through life insurance, the husband’s insurability, the cost of insurance, or husband’s ability to afford insurance, it was error to order that life insurance be carried.

Adams v. Adams (3/25/11)
2nd DCA: The parties had settled all property issues prior to trial.  The trial regarded only alimony and child support.  While it was proper for trial court to order alimony (which essentially equalized the parties’ monthly incomes) it was error to award wife $15,000.00 (half of the amount in benefits husband had his comatose wife sign by placing pen in her hand and moving her arm) as property issues were already settled (property settlements are not modifiable) and no evidence was provided to establish wife needed this money for support.

Arcot v. Balaraman (3/18/11)
5th DCA:  Trial court abused its discretion by failing to order alternate weekend visitation with the minor child during the summer months.  Marital settlement agreements, like all contracts, must be read in the entirety,  The portion of the judgment which read, “[t]he father shall be entitled to two consecutive weeks with [the minor child] every summer” was not exclusive.  In other words, it did not act to terminate father’s alternating weekend contact in the summer months.

Moree v. Moree (3/16/11)
2nd DCA: Parties entered into a Marital Settlement Agreement at mediation.  However, prior to final dissolution hearing, husband attempted to set the agreement aside, or alternatively to reform the agreement, claiming that the parties had meant to split assets and liabilities equally, however due to a “mutual mistake” and a failing to take into consideration tax implications, he was adversely affected by over $200,000.  The trial court found that the motion was facially insufficient.  On appeal, the 2nd DCA noted that a marital settlement agreement may be set aside when it is entered into as a result of mutual mistake, coercion, or duress.  Further, the 2nd DCA found that husband’s motion adequately alleged a claim for relief based on mutual mistake therefore the basis of the trial court’s denial was in error.  As wife contests the presence of a mutual mistake, the case was remanded for an evidentiary hearing as to whether there was a mutual mistake.

Richardson v. Starling (3/10/11)
1st DCA: A motion for modification of child support based on increased earnings was referred to a magistrate.  A hearing was held by the magistrate and a finding made orally.  However, the magistrate did not apparently draft a report or recommendations to the trial judge.  Further, there was no evidence that a proposed order was presented to the father to allow him time to file any objections or exceptions.  Subsequently, the trail judge entered an order modifying the child support.  The entry of this order without the formal submission of recommendations by the magistrate and the ability of the father to file exceptions violated the court’s order of the matter to the magistrate and was error.

MJI v. AJK (3/9/11)
2nd DCA: Simply an affirmation by the majority without opinion.  The following is not controlling but is an interesting point raised in non-binding dicta by the concurring opinion.  One Judge pointed out that the denial of attorney’s fees for the appeal of the paternity action was not being based, at least by this particular judge, on case law from other DCA’s (4th and 5th) which hold that attorney's fees cannot be awarded on appeal in a paternity action because section 742.045, Florida Statutes (2008), does not expressly authorize fees on appeal.  The concurring judge pointed out that she believed section 61.16 Florida Statutes would have allowed for fees if the child in dispute had been legitimate.  While the Judge believed that fees would have been denied in the instant case even with these considerations, this language is an indication that this Judge may see constitutional problems with this differential treatment in other cases.

Albert v. Rogers (3/9/11)
4th DCA: It was error for the trial court to engage in an independent investigation of the case.  Furthermore, the court erred in substantially modifying the time sharing schedule in the order finding the mother in contempt because that relief had not been requested by the father in any pleading and the best interests of the children were never litigated.  Therefore, adjudicating these issues resulted in a denial of due process.  On remand the case was ordered to be handled by another judge due to the independent investigation which had been conducted in the lower court.

Hernandez v. Hernandez (3/11/11)
5th DCA: Trial judge’s conducting of the final hearing more like a mediation as opposed to an evidentiary hearing resulted in inadequate actual evidence to support findings of the Court. While entitlement to child support, amount of child support and entitlement to rehabilitative alimony was stipulated to, the amount, duration, and particulars of rehabilitative alimony were not stipulated to or supported by the record.  Therefore, the matter had to be returned to the trial court for an actual evidentiary hearing on portions that the parties did not agree to. 

Fischer v. Fischer (3/4/11)
5th DCA: Imputation of income to husband was proper as a court may impute income to a party who has no income or who is earning less than is available to him or her based on a showing that the party has the capacity to earn more by the use of his or her best efforts. . . . Before imputing income, the trial court must consider evidence concerning the party's recent work history, occupational qualifications, and the prevailing earnings in the industry in which the party works

Laussermair v. Lossermair (3/2/11)
4th DCA: Wife’s claim that it was a violation of public policy to require child support payments to be made into an educational account for the children was properly dismissed.  However, it was improper to dismiss wife’s request for modification of child support based upon her belief that former husband was making substantially more money.  The court erred by looking outside the four corners of the petition for purposes of the motion to dismiss.

Gray v. Bresler (3/2/11)
4th DCA: Husband’s motion to vacate final judgment for lack of jurisdiction was properly denied.  While husband may not have resided in Florida for six months at the time of his filing of the petition for dissolution, by the time his wife filed an answer and counter-petition, she had lived in Florida for over six months.

Roth v. Cortina (3/2/11)
3rd DCA: Trial court erred by not addressing equitable distribution of assets before making a determination of entitlement to and amount of alimony.  Further, even when no trial transcript is provided to a reviewing court, a trial court’s failure to make sufficient finding regarding value of property and identification of marital assets and debts is reversible error requiring remand.  Additionally, the trial court erred in failing to enforce its own order of temporary attorney’s fees.  Finally, the trial court should have allowed withdrawal of counsel as a proper justification was shown and there was never a showing that the party lacked the mental competency to represent himself.

Monteiro v. Monteiro (3/2/11)
3rd DCA: Trial court did not depart from the essential requirements of law in mandating the in-camera inspection of the minor children outside the presence of the parties and their counsel at a final domestic violence injunction hearing.

Valdes v. Valdes (3/2/11)
3rd DCA: On its second remand, the trial court erred in allowing in additional evidence in the form of an accounting report which attempted to claim that there was no appreciation of non-marital assets during the time of the marriage (which would have been allowed for disbursement even in the face of the couple’s pre-nuptial agreement).  The trial court had been instructed not to allow in any additional evidence.  Further, the report on its face was inaccurate.  Further still, the trial court had enough information before it from the first trial to show sizable appreciation of non-marital assets,  The only question properly before the Court was how much of this appreciation was due to marital labors.
[I]n evaluating the enhanced value of a party’s non-marital asset for equitable distribution purposes the court should consider: “(1) the value of [that party’s] equity in the property prior to the marriage; (2) the value of the property as of the petition filing date, unless another valuation date was specified to be more just and equitable under the circumstances; (3) the extent to which the value of the [] property was enhanced by causes other than the parties’ contribution of marital funds and labor; and (4) the extent to which value of the [] property was enhanced by the use of marital funds and labor”)

February 2011 Cases:

Spano v. Bruce (2/23/11)
3rd DCA:  Even though initial petition for downward modification of child support was dismissed without prejudice (as it had not been served timely and then subsequently was not prosecuted for over a year), it was error for trial court not to grant downward modification retroactively to the date of the original (dismissed) petition as opposed to date of filing amended petition.

Sandy T. Fox v. In re: Matter of Mincey and Royal (2/16/11)
3rd DCA: No written opinion, but the appellate court recognized the “outstanding” work of Miami divorce attorney Sandy T. Fox, Esq. in his role as a guardian ad litem in this matter.  Such commentary is not the norm, and we, at The Smith Family Law Firm, P.A., thought it was appropriate to also applaud work that makes us all, as family law practitioners, feel good about our family law bar.  Way to go Sandy (and “Go Sharks!”).

Pirelli v. Bolanos (2/16/11)
4th DCA:  While former husband was rightfully found in contempt for failure to pay court ordered support, order of incarceration was erroneous as trial court failed to specify the basis of its finding that husband had the financial ability to pay purge amount.

Ingram v. Ingram (2/16/11)
1st DCA: When awarding attorneys’ fees, the trial court must “set forth specific findings regarding the hourly rate, the number of hours reasonably expended, and the appropriateness of the reduction or enhancement factors as mandated by the supreme court in Florida Patient’s Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985).”  While in some cases, the trial court’s failure to make the required might be harmless error, in the instant case the only basis for the amount of the award was testimony that the wife had paid the attorney this amount.  Therefore, the matter was remanded for proper findings.

Peters v. Peters (2/16/11)
1st DCA: Requirement to have $360,000 in life insurance to support alimony was improper as the “special circumstances” required by case law were not shown.  Further, requirement of $40,000.00 life insurance to secure $739.69 a month child support set to expire in August of 2011 was improper as it was not related to the extent of the obligation it was securing.

Sullivan v. Hoff-Sullivan (2/16/11)
1st DCA: After a failed attempt to enforce/modify a child support provision of a marital settlement agreement entered into in the state of Georgia through a Georgia court, Wife attempted to essentially reargue the matter in Florida where the Wife and children subsequently moved.  The trial court erred in granting the relief sought. “The foundation of res judicata is that a final judgment in a court of competent jurisdiction is absolute and settles all issues actually litigated in a proceeding as well as those issues that could have been litigated.”

Randolph v. Rich (2/16/11)
1st DCA: While a petitioner does not have to wait for abuse to occur in order to seek an injunction, the law requires more than general relationship problems and uncivil behavior to support the issuance of an injunction.  Rather, the law requires that the party seeking the injunction must present sufficient evidence to establish the objective reasonableness of his or her fear that the danger of violence is “imminent.”

Arthur v. Arthur (1/14/10) REVISED OPINION 2/10/11
Florida Supreme Court:  Trial court granted primary residential parent status to mother and allowed mother to relocate with child to Michigan once child turned three years old (the child was 16 months at time of hearing).  This constituted a decision by the trial court of what the best interest of the child would be 20 months from date of the hearing.  Florida Supreme Court found such “prospective-based” analysis to be unsound.  A best interest determination must be made at the final hearing and supported by competent, substantial evidence and needs “present-based” analysis.

Coristine v. Coristine (2/11/11)
5th DCA:  It was not error for trial court to order the sale and partition of the marital home.  As a general rule, a trial court should award the primary residential parent exclusive use and possession of the marital residence until the youngest child reaches majority or is emancipated, or the primary residential parent remarries, unless there are special circumstances. However, in this case, there was evidence of special circumstances.  "Special circumstances" exist where the parties' incomes are inadequate to meet their debts, obligations, and normal living expenses, as well as the expenses of maintaining the marital residence.

Schlifstein v. Schilfstein (2/9/11)
2nd DCA:  Trial court erred, even though appellate court noted it was apparent trial court was simply trying to be equitable, in entering final judgment of dissolution incorporating Mediated Marital Settlement when the agreement had been rendered void by the time of the final hearing.  The agreement had language under the term “conditional full settlement” stating that "[s]hould [Mr. Schlifstein] fail to be able to pay the $130,000 to [Mrs. Schlifstein] as herein below required, this agreement shall be a nullity and have no force and effect whatsoever."  It was undisputed that this payment was never made and therefore the agreement could not be incorporated into the final judgment even though it was argued that Mr. Schlifstein had the ability to pay but chose not to.

Schang v. Schang (2/7/11)
1st DCA:  Order modifying alimony and child support was entered more than a year after the evidentiary hearing.  This was excessive delay.  Order was reversed and new hearing ordered.  While there is no bright line rule, 180 days is presumptively reasonable under Florida Rule of Judicial Administration 2.250(a)(1)(c).

Maslow v. Edwards (2/4/11)
5th DCA:  Benefits paid by Veterans Administration should be treated the same as Social Security benefits for purposes of child support.  Trial court erred in not providing credit for veteran benefits for minor child.  The court cited a 2nd DCA case from 2000 which found:
[W]hen a parent is receiving social security disability due to the disability and, as a result, his or her children receive independent benefits, the total benefits received by or on behalf of that parent are attributed to the disabled parent as income in the child support guideline calculation. The dependent benefits are then credited toward the disabled parent's obligation, that is, they are a payment of the obligation on behalf of the disabled parent. If the benefits are less than the support obligation, the disabled parent must pay the difference. If they are more, the benefits pay the obligation in full, but any excess inures to the benefit of the children.

Criollo v. Criollo (2/4/11)
5th DCA: Release from imprisonment due to failure to pay child support arrearages was proper where transcript of hearing revealed no evidence of present ability to pay purge amount of $66,615.45.

Wilson v. Smith (2/2/11)
2nd DCA: It is error for the trial court to adopt a magistrate's report in a family law matter without first holding a hearing on any timely filed exceptions to that report.  Further, an incarcerated parent's due process rights are impinged in proceedings to change the name of a child where a hearing is requested but access to the hearing is not provided to the incarcerated parent.

Ferguson v. Ferguson (February 2, 2011)
3rd DCA: Husband attempted to void portion of a mediated marital settlement agreement stating that: “Due to the real estate market conditions, the former husband has not been able to refinance the former marital home solely under his name and thus has not been able to pay the monies owed to the former wife pursuant to the parties’ agreement.”  Trial court granted the relief declaring that portion of the agreement “to be an impossibility of performance due to changes in the economy and therefore void.”  The 3rd DCA reversed the trial court stating that the court is controlled by the “bedrock principle of contract law—applicable as well to marital settlement agreements—that bad deals are as enforceable in the law as good deals.”

January 2011 Cases

Blain v. Blain (January 31, 2011)
3rd DCA found that while voluntary dismissal is a nearly absolute right it was still proper to strike husband’s dismissal to prevent fraud.

Forster v. Forster (January 28, 2011)
5th DCA found that while trial court did not abuse its discretion in awarding $11,000.00 in monthly permanent periodic alimony, it erred in finding wife was entitled to $48,150 in attorney’s fees and costs.

Randall v. Randall (January 28, 2011)
2nd DCA found that trial court erred in requiring wife to return engagement ring after husband listed the ring as wife’s nonmarital property.  Court notes that the general rule is that an engagement ring is nonmarital property.  Trial Court had treated the ring separate from equitable distribution as an “heirloom.”  2nd DCA stated that “there is nothing in Florida law to authorize special treatment of ‘heirloom’ property.”

Lee v. Lee (January 28, 2011)
2nd DCA found language in judgment that inequitable distribution was “equitable under the circumstances” was deficient.  On remand, trial Court must articulate a basis under 61.075 for inequitable distribution.  Further, trial court must explain facts upon which it relied for treating nan-marital assets as marital.  Finally, after the trial court clarifies the equitable distribution scheme it will then have to determine the parties’ relative need and ability to pay in accordance with 61.16 to determine wife’s entitlement to attorney’s fees.

Webber v. Webber (January 28, 2011)
2nd DCA found that while it was undisputed that the parties’ minor daughter moved in with former husband in January 2007, it was error for court to award child support retroactively to January 2007 when the petition for modification of child support was not filed until May 2007.  61.14(1)(a) only allows retroactive child support to the date of the filing of the action.

Swor v. Swor (January 28, 2011)
2nd DCA found that although the magistrate recommended that the Former Wife's child support obligation should be retroactive to August 31, 2007, the record demonstrated that the Former Wife did not receive alimony payments from the Former Husband for the period spanning August 31 to October 16, 2007 (in violation of prior Court order). As such, it was error to include the sums due for this time period in the calculation of her income that was subsequently used as the basis for the amount of retroactive child support awarded in the final judgment.

Belford v. Belford (January 21, 2011)
2nd DCA reversed unequal distribution of assets as there was no finding of misconduct in the way husband spent money during the marriage.  “In the absence of misconduct it is error to charge to a party's share of equitable distribution assets that were dissipated during the dissolution proceedings. . . Likewise, in the absence of misconduct, it is error to classify marital debt as one party's nonmarital obligation.”  For a finding of misconduct there must be a specific finding of “intentional misconduct based on evidence showing that the marital funds were used for one party's ‘own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.’”