Roy's Desk: Florida Family Law Summary for week of January 9, 2012

by: Roy J. Smith, IV, The Smith Family Law Firm, P.A., 815 Orienta Ave., Suite 2050, Altamonte Springs, FL, 32701.  phone 407 790 4800, www.LessStressDivorce.com

RMC, Grandmother v. D.C. Father (January 6, 2012)  1^st DCA

RECUSAL OF JUDGE : BLANKET MOTIONS :

After trial court judge in adoption proceeding made assertions regarding Petitioner’s counsel going to the media, counsel moved to recuse the judge in the instant case and several other cases (in separate motions alleging the same facts).  Trial court entered three more orders in the adoption case, then recused himself from the adoption case but denied the motions to recuse in the other case.

On appeal, First DCA denied petitioner’s request for writ of prohibition to quash the three orders entered prior to recusal as “[p]rohibition is a preventative, rather than corrective remedy; it acts only to prevent the commission of an act, and is not an appropriate remedy to revoke an order already issued.”

The denial of the other motions to recuse were also upheld as “[a]lthough petitioner’s attorneys deny filing a blanket motion for recusal, that is in effect what has been done by filing a motion to recuse in every single pending case in which the trial judge is presiding and the attorneys are counsel of record.”

BAUDANZA v. BAUDANZA (January 11, 2012) 4^th DCA

SUBJECT MATTER JURISDICTION : ADOPTION : CONTINUING RIGHTS

An interesting case from a factual standpoint regarding the parties’ attempts to maintain a right to see children on one side and the right to receive child support payments on the other side even after parental rights are terminated through adoption.  Unfortunately, a discussion of the merits of the interesting portions of the case are not at issue in this opinion.  The opinion merely finds that subject matter is still with the Circuit Court as opposed to adoption case where post-judgment agreement was adopted by circuit court which retained jurisdiction and adoption court subsequently entered adoption order but retained no further jurisdiction as to the issues.

ROSS v. ROSS (January 11, 2012) 4^th DCA

JUDGE DISQUALIFICATION : EXCEPTIONS

In this matter, trial judge granted husband’s motion to recuse.  However, the judge  then held a telephone conference with the parties and directed the husband to submit his objections to a previously provided proposed order.  While a recused judge is prohibited from taking any action in a case once disqualified, there is an exception wherein a judge can still reduce to writing a previously provided oral ruling.  However, any substantive change in the ruling would not be a ministerial act.  In this case, the actions of the trial judge were inappropriate as considering objections to a proposed order would go beyond the realm of the court reducing its prior oral order to written form.

KHAN v. KHAN (January 11, 2012) 4^th DCA

MSA LANGUAGE OF NO TEMPORARY ALIMONY DURING SECOND DIVORCE VIOLATES PUBLIC POLICY

Case continued the long standing position that an agreement of the parties that waives or limits the right to request temporary support and attorney’s fees to a spouse in need in a pending dissolution action is a violation of public policy.  This case is distinguishable as it dealt with a prior Marital Settlement Agreement which had such an agreement and the parties remarried (and were seeking divorce again).  However, the result was the same…it still violates public policy.

And while it was during the break, we wanted to direct you to an important case handled by a friend of the firm, Robert A. Segal of Melbourne, Florida.

TMH v. DMT (December 23, 2011) 5^th DCA

In this case of first impression, the parties were a lesbian couple who had a child from an egg donated by one (the biological mother)  to be carried to birth by the other (the birth mother).  The issue is whether both shared parental rights and responsibilities regarding the child.  The child was born in 2004.  However, when the couple’s relationship fell apart and the birth mother moved to Australia with the child.  The biological mother ultimately served the birth mother with the lawsuit.  The trial court entered summary judgment against the biological mother but stated to the birth mother, “[i]f you appeal this, I hope I’m wrong.”

The Fifth DCA found that the trial court was indeed incorrect and found that both had parental rights and responsibilities.  However, the following question has been certified to The Florida Supreme Court as one of great public importance:

Does application of section 742.14 deprive parental rights to a lesbian woman who provided her ova to her lesbian partner so both women could have a child to raise together as equal parental partners and who did parent the child for several years after its birth render the statute unconstitutional under the Equal Protection and Privacy clauses of the Federal and State Constitutions?