Psych Exams, Rights of First Refusal, and Contempt!! March 6, 2015

Barry v. Barry: 5^th DCA, March 6, 2015

If a trial court does not know the particular examinations that a psychologist plans to conduct, it should not grant a request for a psychological investigation.  In this case, the trial court’s order identified the purpose of the examination as the safety of the children but it did not identify the length of the examination, the type of testing, or whether the testing would be limited to methods routine to the profession.  The failure to specify the manner, conditions, and scope of an examination would effectively give the psychologist “carte blanche” to perform any type of psychological inquiry, testing, and analysis.  The 5^th DCA remanded for a more particular order.

Harris v. Harris: 5^th DCA, March 6, 2015

Trial court erred in calculating Former Husband’s and Former Wife’s incomes differently.  Trial court counted Husband’s pension, disability benefits and imputed minimum wage when calculating his income.  As to Wife, trial court imputed minimum wage but did not count her reserve pay.  Further, while Wife testified that her reserve pay was one amount, the 5^th DCA noted that W-2s in evidence revealed a higher figure.  Finally, the award of attorney’s fees was improper because, contrary to the final judgment, there did not appear to be any evidence provided regarding reasonableness of rate or time.  Further, it was error to award attorney’s fees in the final judgment when the order on pretrial conference expressly provided that all issues regarding attorney’s fees would be determined at a subsequent hearing.

Castelli v. Castelli: 4^th DCA, March 4, 2015

While Husband’s attorney’s email to opposing counsel did not explicitly state that he was point-by-point matching a third party offer to purchase the marital home, nor did it note specific details of the third party’s offer that were being matched, it still acted as a trigger to exercise his right of first refusal which had been agreed to in the parties’ marital settlement agreement.  The e-mail did not contain any terms and conditions which differed from the third party purchaser’s offer.  Since a right of first refusal inherently requires the holder of the right to accept the same terms and conditions as the third party offer, the 4^th DCA deemed that the email implicitly adopted all terms of the third party contract.  Trial court erred in not recognizing this and the 4^th DCA pointed out that Wife was the one who breached when she attempted to place time parameters on Husband to execute a purchase agreement in a unilaterally selected time frame.

Wix v. Wix: 2^nd DCA, March 6, 2015

Trial court erred in not vacating a magistrate’s recommendations as the magistrate failed to consider the former husband’s 401K account as an available asset in determining whether the former husband was in contempt for failure to pay alimony.

Jenkins v. Jenkins: 2^nd DCA, March 6, 2015

Trial court should not have allowed downward modification of child support as Husband was in arrears and failed to show that he was unable to comply with the previous support order.  An arrearage does not per se require denial of a modification petition so long as respondent can show that he or she was unable to comply with the previous support order.  However, in this case, no such evidence was provided.