January 2011 Cases

Blain v. Blain (January 31, 2011)

3rd DCA found that while voluntary dismissal is a nearly absolute right it was still proper to strike husband’s dismissal to prevent fraud.

Forster v. Forster (January 28, 2011)

5th DCA found that while trial court did not abuse its discretion in awarding $11,000.00 in monthly permanent periodic alimony, it erred in finding wife was entitled to $48,150 in attorney’s fees and costs.

Randall v. Randall (January 28, 2011)

2nd DCA found that trial court erred in requiring wife to return engagement ring after husband listed the ring as wife’s nonmarital property.  Court notes that the general rule is that an engagement ring is nonmarital property.  Trial Court had treated the ring separate from equitable distribution as an “heirloom.”  2nd DCA stated that “there is nothing in Florida law to authorize special treatment of ‘heirloom’ property.”

Lee v. Lee (January 28, 2011)

2nd DCA found language in judgment that inequitable distribution was “equitable under the circumstances” was deficient.  On remand, trial Court must articulate a basis under 61.075 for inequitable distribution.  Further, trial court must explain facts upon which it relied for treating nan-marital assets as marital.  Finally, after the trial court clarifies the equitable distribution scheme it will then have to determine the parties’ relative need and ability to pay in accordance with 61.16 to determine wife’s entitlement to attorney’s fees.

Webber v. Webber (January 28, 2011)

2nd DCA found that while it was undisputed that the parties’ minor daughter moved in with former husband in January 2007, it was error for court to award child support retroactively to January 2007 when the petition for modification of child support was not filed until May 2007.  61.14(1)(a) only allows retroactive child support to the date of the filing of the action.

Swor v. Swor (January 28, 2011)

2nd DCA found that although the magistrate recommended that the Former Wife's child support obligation should be retroactive to August 31, 2007, the record demonstrated that the Former Wife did not receive alimony payments from the Former Husband for the period spanning August 31 to October 16, 2007 (in violation of prior Court order). As such, it was error to include the sums due for this time period in the calculation of her income that was subsequently used as the basis for the amount of retroactive child support awarded in the final judgment.

Belford v. Belford (January 21, 2011)

2nd DCA reversed unequal distribution of assets as there was no finding of misconduct in the way husband spent money during the marriage.  “In the absence of misconduct it is error to charge to a party's share of equitable distribution assets that were dissipated during the dissolution proceedings. . . Likewise, in the absence of misconduct, it is error to classify marital debt as one party's nonmarital obligation.”  For a finding of misconduct there must be a specific finding of “intentional misconduct based on evidence showing that the marital funds were used for one party's ‘own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.’”