Firm Shield

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Thursday, May 19, 2011

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”)

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