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.”