Nov - Dec 2012 Family Law Update!!!

FEDERAL CASES:

AXA Equitable Life Insurance v. Cherry (US Court of Appeals 11^th Circuit)  Nov 9, 2012

            Where MSA clearly stated that “alimony will be secured” by life insurance, former wife only suffered damage of the amount of unpaid alimony following former husband’s death where he had changed beneficiary.  Former Wife was not entitled to the windfall of the complete policy.

FIRST DCA

Therriault v. Therriault (December 10, 2012)

            Trial court abused its discretion by ordering the former husband to maintain $500,000 in life insurance to secure his alimony and child support obligations as the court failed to make specific evidentiary findings as to the availability and cost of insurance and the special circumstances that warranted the security.

Margaretten v. Margaretten (November 16, 2012)

            While there was no dispute as to wife’s need and husband’s ability to pay alimony, the trial court erred in not making a specific finding that no other form of alimony, other than permanent alimony, was fair and reasonable under the circumstances for the parties.

Colley v. Colley (November 16, 2012)

            While there may have been a few issues which were vague in an MSA, and other issues not dealt with in the MSA, this was not grounds to invalidate the remainder of the MSA by the trial court.  The portions agreed to should have been adopted, and the remaining unaddressed or vague issues could still be litigated.

Gray v. Gray (December 17, 2012)

            Trial court’s order was reversed and remanded as there were no findings to support wife’s need for alimony of $30,000.00 a month.  Further, while it is in a trial court’s discretion not to impute income to a spouse, the court’s order must establish that it considered the statutory factors in deciding not to do so.  In its first judgment, the trial court stated that it was in the best interest of the children for the mother to remain at home.  In its revised judgment the trial court found that husband did not provide competent and substantial evidence that wife was employable.  In doing so the trial court rejected the opinion of husband’s expert but did not provide an explanation for the rejection.  In both cases, the trial court abused its discretion and therefore the matter was remanded for further findings.

Mayfield v. Mayfield (December 17, 2012)

            In a modification proceeding, trial court erred by providing husband a credit towards future child support for additional voluntary payments made for the child in the past.  Further, the trial court erred in not modifying child support retroactively to date of petition for modification.  However, the trial court did not err in refusing to alter the responsibility for non-covered medical expenses to a pro-rata basis as the parties had previously agreed to split these expenses 50/50.

SECOND DCA

Blackburn v. Blackburn (November 30, 2012)

            Magistrate’s recommendations, which were adopted by trial court , were in error.  While the determination of the timesharing schedule appeared to be supported by detailed analysis, language that the timesharing schedule could be modified in the future based solely on the best interest of the children, as opposed to a substantial change in circumstances, was in error. (Magistrate had apparently created this distinction because Mother and Father had not yet settled into a stable post dissolution schedule and living arrangements).   It was also error to not address the holiday time-sharing schedule.

Arena v. Arena (January 4, 2013)

            Wife appealed award of only 60% of her attorney’s fees to be paid by husband (as opposed to all of fees).  The case was remanded as the trial court had utterly failed to give an explanation as to the partial award.

Hammesfahr v. Hammesfhar (November 28, 2012)

            The trial court erred by failing to address former husband’s request to modify child support based on one of his children reaching the age of majority.  However, denial of former husband’s request to modify alimony was proper as there was competent evidence to show that the reduction was due to voluntary underemployment.  Again, “the clean hands doctrine prevents a court from relieving a party of his support obligation when the decrease in financial ability to pay is brought about by that party’s voluntary acts of, for example, permitting a thriving business to be closed down and making no effort to find other employment, or by willfully divesting himself/herself of the ability to pay.”

Perez v. Perez (November 9, 2012)

            Trial court erred on several points with regard to the award of attorney’s fees to wife (in a very contentious and overly-litigated case).  First, there was no analysis of need and ability to pay.  Second, there was no explanation as to why husband was only responsible for a certain portion of wife’s fee.  Third, to the extent fees were being awarded for litigation misconduct, the order failed to address this issue at all.  Finally, while a payment plan was ordered, there was no explanation as to why the particular payment plan was selected.

Bikowitz v. Bikowitz (November 28, 2012)

            It was not error for trial court to deem payment made by husband’s company which was, in part, consideration for non-compete provision and an obligation to furnish consulting services to his company’s buyer for a fixed time as marital as neither party provided evidence from which the trial court could have separately valued the non-marital aspect of the payment.  However, as his employment began during the marriage and extended until after the filing of the petition, the trial court on remand had to apply an analysis as to what services were provided after the petition to carve out a non-marital component.  Additionally, trial court erred in placing a loan, which had no evidence that it would ever be paid back, as an asset for husband.  Finally, bridge the gap alimony award was reversed as it exceeded wife’s need.

Weissman v. Weissman (December 12, 2012)

            When a trial court modifies a parent’s visitation without notice and an opportunity to be heard, a parent may seek certiorari review on the basis that the court departed from the essential requirements of law.  In this matter, while the trial court’s order to place the minor children in a treatment program was not in error, as former husband had notice these issues were being considered by trial judge, there were no extraordinary circumstances presented which justified preventing visitation or contact for ninety days upon the family’s return from the program without first affording former husband notice and an opportunity to be heard.

           

THIRD DCA

Sueiro v. Gallardo (December 21, 2012)

            Trial court’s order modifying timesharing based on “parental alienation” was overturned.  While a finding of parental alienation can justify a post dissolution modification of timesharing, it must be based on competent, substantial evidence.  In this case the expert’s testimony revealed that the mother indeed encouraged contact.  It was the eldest child who rejected father and attempted to get younger children to reject father.  Further, the expert testified that immediate change in time sharing would not be in the best interest of the children, as he preferred a gradual change.  Therefore, the order for an immediate change was not supported by the evidence.

           

FOURTH DCA

Morrell v. Morrell (December 19, 2012)

            Former husband argued that finding of contempt for failure to maintain life insurance was improper as the requirement to have life insurance was not to secure alimony or child support but was instead an element of equitable distribution.  The appellate court rejected this and found that the insurance was in the nature of support.  However, the appellate court also indicated that since it was in the nature of support it was modifiable.

Giorlando v. Giorlando (December 19, 2012)

            Agreed to imputed income referenced in the MSA has to be taken into account in determining whether to award temporary fees.  While this appears to conflict with the 3^rd DCA in Schmachtenbeg, the 4^th DCA indicated that the instant case was distinguishable as , in the instant case, former wife was seeking modification and therefore she shouldered the burden of establishing why the agreed upon imputed income should not have been considered.

Miller v. Miller (November 21, 2012)

            Attorney fees can only derive from a statutory basis or an agreement.  In this matter, the MSA indicated that fees would be triggered when one party seeks to enforce an MSA.  However, enforcement was not sought, instead it was a modification.  As such, trial court erred in awarding fees under the “prevailing party” provision of the MSA.

FIFTH DCA

Liberatore v. Liberatore (December 14, 2012)

            Trial court’s allocation to wife of depleted assets that she used during the pendency of the dissolution proceedings to pay her attorney was in error as there was no finding of misconduct.

Gunn v. Gunn (November 30, 2012)

            Trial court erred in focusing only on former husband’s ability to pay attorney’s fees based on his disposition of an asset following modification proceedings.  The court should have considered all assets and sources of income of both parties and not merely one isolated factor.

           

RECENT RECUSSAL CASES:

Griffith v. Haworth (US District Court Middle District)  Nov 20, 2012

            Attempt of litigant to file a lawsuit against, or add judge as Defendant, was not grounds to recuse judge.

Farr v. State (Florida Supreme Court 2012)

            The fact that a judge has previously made adverse rulings is not adequate grounds for recusal. (citing Jackson v. State, 599 So.2d 103 (Fla. 1992)).

Braddy v. State (37 Fla. L. Weekly. Supp 703)

            Judge’s comments to Braddy, even if exasperated or sharply spoken, do not require disqualification.  Citing prior case law “expressions of impatience, dissatisfaction, annoyance, and even anger do not establish bias or partiality.”  Further, a judge’s statement that claims were “bogus”, “a sham”, and “abject whining” did not warrant recusal.