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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.

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