Firm Shield

Firm Shield

Wednesday, November 23, 2011


The Smith Family Law Firm, P.A.
407 790 4800

Rushetsky v. Rushetsky (4th DCA)  11/23/11
Except as to points where wife conceded error, the failure to provide a transcript or proper substitute required affirmance unless there is clear error on the face of the judgment.

Friday, November 18, 2011

"ROY's DESK" FLORIDA FAMILY LAW SUMMARY: Week of November 14, 2011

Tuomey v. Tuomey (Fla 5th DCA)  11/18/11
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

Kevin B. Weiss of Weiss Legal Group

Monday, November 14, 2011

Week of November 7, 2011

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.

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