Florida Family Law Cases

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In this Florida family law case database, Sampson Collaborative Law summarizes Florida family law cases since 2011.

Cases show courts’ reasoning in litigated Florida cases that:

  1. resulted in a reported appellate opinion,
  2. may or may not be factually like yours, and
  3. may or may not be binding precedent if you litigated your case.

Every family, client, and case is unique!  You and your professionals have choices.

Appellate decisions seldom detail:

  • the emotional and financial toll on the families,
  • the risks the parties took,
  • differences in experience & effectiveness of the professionals,
  • the money & time spent litigating that preempted things they love to do, and
  • more flexible, satisfying, and lasting agreements they might have achieved had they not given a judge control of their fate.

Plug keywords into the free Florida family case search tool. Get links to cases in Google Scholar. Check if later cases or publications have cited the cases.

Use this tool not to fixate on legal positions, but to spark thinking about creative solutions for resolving issues. 

Use this search to find case discussion that help you or your professionals  gain insight.

The collaborative process enables you, rather than a judge, to take responsibility for and control solutions. When thinking about the collaborative process and other options for resolving issues, use this Florida family case law tool as a gut check. 

In the collaborative process, you have flexibility to achieve solutions a judge couldn’t order. As you explore solutions that may achieve your family’s goals and interests, is your thinking grounded in reasonable legal principles and fairness?

Florida Family Law Case Search

Fernandez v. Fernandez, Case No. 3D20-1043d DCAAugust 5, 2020 Reverse dismissal of petition by 27-year old person with Down Syndrome against her dad, for lack of subject matter jurisdiction. Dad argued there was no provision in the final judgment extending child suport beyond the age of majority and no attempt while she was still a minor to modify or extend support.
Korey's parents divorced in 2001 when she was 9 years old. Their marital settlement agreement provided for her support until she turned 18. She required daily financial and physical assistance from her mom.
Trial judge denied Korey's motion (filed when she was 27) to reconsider its dismissal. On the contrary, finding her petition frivolous, the trial judge sanctioned her and awarded her dad attorney fees under 57.105, Florida Statutes.
Reversing, the Third DCA agrees dependent adults have a common law right, preserved by Florida Statutes, to see adult support from their parents, and the circuit court has subject matter jurisdiction to hear and adjudicate a petition for dependent adult support.
Court cites a 70-year old case: Perla v. Perla, 58 So. 2d 689 (Fla. 1952). A parent must support an adult dependent child who can't support herself because of a mental or physical incapacity that began before the child reached majority. See also 743.07(2), Florida Statutes.
Adult child with Down Syndrome had a right to bring an independent action for dependent adult support to adjudicate father's continuing support obligation.
Local Miami-Dade County rules don't confer or constrict circuit court's subject matter jurisdiction. "Subject matter jurisdiction—the ‘power of the trial court to deal with a class of cases to which a particular case belongs’—is conferred upon a court by constitution or statute."
FernandezSpecial Needs Adult
Waldera v. Waldera, Case No. 3D18-1546 3d DCAAugust 5, 2020Trial court miscalculated attorney-husband's income and homemaker/part-time bookkeeper-wife's imputed income. Dissolution case filed in 2015. In 2018, trial court awards duratinal alimony until child reached majority.
Court incorrectly relied solely on 1 anomalous year's income, which included a nonrecurring source. Florida courts suggest a presumption arises from a spouse's historical earnings that the spouse can keep earning that amount, unless evidence shows he or she can't. Courts could average prior years' income, but only if it reflects current reality and present ability to pay.
Trial court wrongly imputed income to former wife. She testified without rebuttal she homeschooled the parties' child full time (7-10 hours a day, including sports and extracurricular acitivities) – that's what the parties had agreed (presumably before the divorce filing) she would do - and her part-time hours as a bookkeeper were limited.
The finding the former wife had 20 hours a week available to work rested on the trial judge's suspicion the child's homeschooling was necessary.
Courts should give great deference to parties' agreements during their intact marriage about respective roles – for example, that one would be a stay-at-home parent. Zeigler v. Zeigler, 635 So. 2d 50, 54 (Fla. 1st DCA 1994), Meighen v. Meighen, 813 So. 2d 173 (Fla. 2d DCA 2002), Bender v. Bender, 363 So. 2d 844 (Fla. 1st DCA 1978).
Rudnick v. Harman, Case No. 4D20-10044th DCAJuly 22, 2020Trial court deprived former husband of essential requirements of the law by waiving without an evidentiary hearing the requirement of marital settlement agreement that the parties mediate before litigating child support modification.
As with statutes compelling presuit requirements, the requirement in the marital settlement agreement to mediate prior to suit “cannot be meaningfully enforced postjudgment because the purpose of the presuit screening [or mediation] is to avoid the filing of the lawsuit in the first instance.” See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So. 2d 646, 649 (Fla. 2d DCA 1995). Ex-husband showed irreparable harm by waiving the presuit mediation requirement without an evidentiary hearing.
Rudnick v. HarmanMarital Settlement Agreements
Silva v. de la Noval, Case No. 3D19-1493d DCAJuly 22, 2020Titled owner held bare legal title only to residential property. Woman and boyfriend proved by clear and convincing evidence they were the true owners and the court should impose a constructive trust and resulting trust on the property, which was uninhabitable when purchased.
They paid for the property; Silva was a straw buyer who agreed, using his good credit, he'd buy it, receive a $15,000 fee, then would transfer title to her and her boyfriend after closing. They paid the closing payments, $89,000 for improvements, and all mortgage payments during 7 years. Paralegal at title company prepared quitclaim deed for straw buyer to sign, but he failed to show as promised, then split for Nicaragua for a few years.
Trial court properly exercised discretion to impose a constructive trust in favor of the true owners and granted vested title to them.
To impose a constructive trust, a plaintiff must establish the claim by clear and convincing evidence. Abreu v. Amaro, 534 So. 2d 771, 772 (Fla. 3d DCA 1988).
Constructive trusts restore property to the rightful owner and prevent unjust enrichment. Courts impose constructive trusts upon property fraudly acquired or when it is unfair for someone who acquired property to continue retaining possession of it.
To impose a constructive trust, a court must find: (1) a promise, (2) transfer of the property and reliance on the promise, (3) a confidential relationship, and (4) unjust enrichment. The person seeking a constructive trust must prove these factors by clear and convincing evidence. See also In re Kyle, 123 B.R. 111, 113 (Bankr. S.D. Fla. 1990) (a constructive trust is warranted only if the movant establishes by clear and convincing evidence the existence of (1) a confidential relationship; (2) by which one retains an advantage; (3) which one should not, in good equity and conscience, retain).
Silva v. de la NovalProperty
Pricher v. Pricher, Case No. 5D19-2435th DCAJuly 17, 2020Trial court erred by denying former wife's request to be designated as irrevocable survivor beneficiary of FH's military retirement benefit plan (SBP) and, instead, by allowing him to secure that obligation with life insurance. The parties offered thus the court took no evidence about the life insurance option – his insurability, the annual cost, the appropriate amount to substitute for the SBP benefit, or how the former wife could be certain he would keep paying premiums. The court reserved jurisdiction to consider the issue if, in the future, the parties needed a ruling on that option.
Parties signed a partial marital settlement agreement resolving equitable distribution except for the beneficiary designation under the military retirement plan.
PricherLife Insurance
Bender v. Shatz, Case No. 4D19-30134th DCAJuly 15, 2020Wife claiming she solely owned the contents in safe deposit box – including gold coins and money – failed to meet the burden of proof supporting her claim, against judgment creditor of husband.
Wife, husband, and their son all signed rental agreement for the safe deposit box, which each could access, place property in, and take property out without permission.

The rental agreement did not state the form of ownership of the contents. By relying on the rental agreement, the judgment creditors established that the three box renters had a tenancy interest in the contents, sufficient to require the tenant claiming an exclusive interest in property to prove it by the greater weight of the evidence.
Bender v. ShatzProperty
Levy v. Levy, Case Nos. 3D19-73 and 3D19-3183d DCAJuly 15, 2020Under a property settlement agreement entitling the prevailing party in enforcement actions to attorney fees and costs, the trial court should have awarded them to former wife. She won defending a motion to compel her to reimburse ex husband for support he claimed he overpaid.
Florida Statutes, Section 57.105(7), makes all contracts with prevailing party fee provisions reciprocal. Once the court determines a spouse has prevailed under the contract (a marital settlement agreement), the award is mandatory. The trial court has no discretion to decline awarding prevailing party attorney fees in such cases. See also Lashkajani v. Lashkajani, 911 So. 2d 1154, 1158 (Fla. 2005).
LevyAttorney Fees
Stivelman v. Stivelman, Case No. 3D20-1363d DCAJuly 8, 2020Discovery fight in alimony modification case over subpoenas former wife sought to get extensive records from nonparty corporate third pary limited liability companies about income former husband may have received from them. Nonparties moved to quash subpoenas for depositions and for protective orders, which the trial court granted, because they were overly broad, not narrowly tailored to obtain appropriate information.
Despite the protective orders, former wife subpoenaed for trial the same documents the trial judge restricted her from obtaining.
How much spent by ex-husband, ex-wife, and nonparties on attorney fees in trial court and on appeal? How much delay from getting at the real issues?
Coriat v. Coriat, Case No. 3D19-9043d DCAJuly 8, 2020Child support was based on dad spending 146 overnights per year, which conflicted with parenting plan that provided for 82 overnights. Since the final judgment, dad exercised the 82 overnights, as the Parenting Plan provided. The general magistrate erred by ordering retroactive child support to the date of the final judgment. Child support modification generally goes back to the date a parent petitions for modification, unless the parent owing child support fails regularly to exercise the court-ordered or agreed time sharing schedule. Then that date is the retroactive date.CoriatChild Support
J.A.L. v. R.M.A., Case No. 2D19-1042d DCAJuly 8, 2020Reversed and remanded to trial court to establish a reasonable schedule for dad to pay $36,493.67 (trial) and $2,975 (appellate) attorney fees and costs mom spent. The trial court gave him 12 years. Such a payment plan is manifestly unreasonable, would discourage competent atorneys from representing clients in paternity and child support cases, defeating the purpose of the statute providing for attorney fees and costs.J.A.L. v. R.M.A.Attorney Fees
In Re: Amendments to the Florida Supreme Court Approved Family Law Forms 12.948(a) & (e), Case No. SC19-1897Supreme Court of FloridaJuly 9, 2020New Florida Family Law Forms 12.948 (a) - (e) for granting temporary custody during deployment.
In 2018, the Legislature adopted the Uniform Deployed Parents Custody and Visitation Act which addresses issues of child custody and visitation arising when a parent deploys for military or other national service. See Ch. 2018-69, Laws of Fla. Five new forms are created to implement the Uniform Act, which is codified as Part IV of Chapter 61, Florida Statutes (2018).
Access & download from the Florida State Courts' website at Family Law Forms
Temporary Custody During Deployment of ParentFamily Law Procedure
Jorgensen v. Tagarelli, Case No. 5D19-21325th DCAJuly 2, 2020Trial court incorrectly imputed income to former wife by relying solely on past earnings. Her recent full-time work was 3X her earnings during the 4-year marriage.

Court miscalculated former husband's business income by classifying his equitable distribution equitable distribution equalizing payments as a business expense. He received the mobile home park they had owned as tenants by the entireties. Allowing him to claim them as a business expense to offset income for child support would be an impermissible double dip.
Jorgensen v. TagarelliChild Support
Tutt v. Hudson, Case No. 2D19-14372d DCAJun 24, 2020Stay at home dad, mom a doctor. In last years of marriage, he got his real estate license. After divorcing, he drove for Uber and Lyft. The former husband had never earned more than $60,000 per year, and although he had spent the last two years (2016 to 2018) networking in the area, there was no evidence that he could have earned $125,000 in 2017 operating a limousine or driving business.
For attorney fees, trial court failed to make findings regarding contentiousness of the former husband. Trial court failed to explain the fees his misconduct caused.
Tutt v. HudsonAttorney Fees
Stephanos v. Stephanos, Case Nos. 4D19-1276, 4D19-1378, and 4D19-19794th DCAJun 24, 2020Circuit court erred in treating agreement as a marital settlement agreement instead of a postnuptial agreement. There is a difference.
Trial court incorrectly ruled the executory provisions of the postnuptial agreement were voided by reconciliation. See Weeks v. Weeks, 197 So. 393 (Fla. 1940). The Weeks rule applies only to marital settlement agreements, not to postnuptial agreements.
Resuming marital relations abrogates a separation agreement, but does not negate a postnuptial agreement the parties signed while married and contemplating no imminent separation or dissolution.
StephanosPostnuptial Agreements
Lugassy v. Lugassy, Case Nos. 4D20-216 and 4D20-5464th DCAJun 17, 2020Brothers owned 50-50 corporation and were deadlocked. Reversed order requiring brother to sign a personal guaranty of a loan, because that would violate dissenting brother's freedom of contract.
Freedom of contract entails freedom not to contract, except for innkeepers, common carriers, and other public service companies, and except as restricted by antitrust, antidiscrimination, and other statutes.
LugassyMarital Settlement Agreements
Bostock v. Clayton County, GeorgiaUS Supreme CourtJun 15, 20201. Clayton County, GA fired Bostock for conduct "unbecoming" a county employee after he began playing softball in a gay softball league.
2. Altitude Express fired Zarda days after he mentioned being gay.
3. RG & GR Harris Funeral Homes fired Aimee Stephens, who presented as a male when they hired her, after she told them she planned to live and work full time as a woman.
An individual's homosexuality or transgender status is not relevant to employment decisions. It's impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.
An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.
Bostock v. Clayton CountyLGBT Employment Discrimination
Lefkowitz v. Schwartz, Case No. 5D18-40075th DCAJun 12, 2020Court erred by imposing constructive trust over assets that were appropriately in decedent's estate.
Usher Brown died. Arlene Schwartz (mother-in-law) loaned daughter and Brown $260,000 to buy a condo in Utah, late transferred to an LLC. Brown and daughter in law divorced. Under marital settlement agreement, he agreed in exchange for ex-wife's conveying her half of the Utah condo to him to pay mother-in-law under note and mortgage. He never signed a note and mortgage. He paid mother-in-law some monthly payments. After the divorce, he secretly sold the property, deposited money in the Utah LLC's bank account, then bought another condo using some of the sale proceeds as a down payment. Before closing on the new condo, he died.
Trial court relied on a trust exception to filing claims in probate if trust property shouldn't be in the estate because of an equitable basis someone else had to claim ownership, including someone claiming the court should impose a constructive trust on property. Scott v. Reyes, 913 So. 2d 13, 17 (Fla. 2d DCA 2005).
But courts have questioned and limited the trust exception since the adoption of the Florida Probate Code. The exception means property someone else owned shouldn't be made part of the estate subject to administration in probate. But claims based on constructive trusts aren't included in the exemption. The proceeds from the sale of the Utah condo should've been included in the estate and competing claims resolved there.
Dead man's mother-in-law was just another unsecured creditor of his estate. She couldn't subvert a legislatively-imposed distribution scheme (Probate Code) by recasting her probate claim for a debt owed as a dispute over ownership.
By imposing a constructive trust on, and removing, proceeds from the sale of the Utah condo from the decedent's estate, the trial court improperly gave mother-in-law's claim priority over all other creditors of the state.
Lefkowitz v. SchwartzTrusts & Estates
Shealyn McGovern v. Jacqulyn Clark, Case No. 5D19-15255th DCAJun 12, 2020Clark had 2 children before women married. McGovern didn't adopt them and had no biological relationship to her. Trial court found it had no subject matter jurisdiction to adjudicate in the divorce action issues related to the 2 children.
Women were in a committed relationship, planned a family together. As planned, Clark gave birth to child, who took McGovern's last name. They lived together as a family. 2d child born to Clark, also given McGovern's last name.
They married in New Hampshire. Clark had 2 more children. Birth certificates list only Clark as mother, no one as father. All four children were born while the parties were in a committed relationship together as siblings, with the same parents, as an intact family.
McGovern filed for divorce in 2018 shortly after separation. She listed all 4 kids as children in common to the parties. She asked the judge to address timesharing and child support for all 4 kids.
Clark argued McGovern had no biological or legal ties to any of the children, so McGoven had no parental rights as a matter of law.
Regarding the 2 children born before the marriage, McGovern didn't adopt them and she had no biological connection to them.
Regarding the 2 children born during the marriage, McGovern hadn't adopted them and a biological dad's rights hadn't been terminated.
For the 2 children born before the marriage, McGovern was seeking to establish rights as a "reputed" parent under 742.091, Florida Statutes, just as an unwed father might seek to legitimize a child born out of wedlock by marrying the child's mother to establish parentage.
Section 742.091, Florida Statutes provides, if the mother of any child born out of wedlock and the reputed father after its birth intermarry, the child shall be the child of the husband and wife, as though born within wedlock.
The reputed father doesn't have to be the child's bio dad.
The trial court distinguished In the Matter of the Adoption of D.P.P., etc. G.P. v. C.P. 158 So. 3d 633 (Fla. 5th DCA 2014), in which GP legally adopted bio mom's child.
Marriage triggers legal rights, responsibilities, and benefits not afforded to unmarried persons. Cohen v. Shushan, 212 So. 3d 1113, 1126 (Fla. 2d DCA 2017) There is a strong presumption of legitimacy of a child born to an intact marriage. There is no presumption of legitimacy for a child born before marriage, but the subsequent marriage of the mother and the reputed father legitimates the child. The parties and the children are, by statute, given the same status they'd have had if the child had been born during the marriage.
Section 742.091 is a legitimation statute that allows an illegitimate child to become legitimate when, after the child is born, the reputed father and mom marry.
The statute doesn't define "reputed father," but doesn't require that the individual is the biological father only that the person held out as the reputed father willingly assumed the responsibilities of parenthood.
The court distinguishes between paternity and legitimacy. Legitimacy refers to the status of a child born to legally married parents, while paternity refers to the status of being the only one natural, or biological, father of a child.
The issue was whether the 2 kids born before the marriage became legitimate once the women married, and thereby, children of the marriage, under 742.091. The statute does not require, so McGovern didn't have to prove, a biological connection to the children.
McGovern challenged the constitutionality of the statute. She said the statute denied same-sex married spouse equal protection. Because the challenge was a dispute about a constitutional application of the statute to a particular set of facts, McGovern had to raise it at the trial level, which she did, but the trial court made no ruling on its constitutionality as applied to McGovern.
McGovern v. ClarkTimesharing & Parental Rights - LGBTQ Issues
Wallace v. Comprehensive Personal Care Services, Inc., Case No. 3D19-4233d DCAJun 03, 2020Son stated cause of action to remove dad (Milton) as trustee of irrevocable trust. Dad and late wife put their assets into irrevocable trust. One son, represented by his guardian, moved to compel dad to comply with agreement and trust. Other son joined in and alleged dad's mental condition rendered him unable to serve as trustee. Dad/trustee gave large gifts to new friends who were not beneficiaries of the trust.
Generally trust provisions prevail over Florida Trust Code. Exception under 736.0105(2)(b) and (e), Florida Statutes - Court may act as necessary in the interests of justice. The Trust Code acknowledges court may remove a trustee if the court finds removal of the trustee services the best interests of the beneficiaries. 736.0706(1), (2)(a) and (c), Florida Statutes.
Wallace v. Comprehensive Personal Care ServicesTrusts & Estates
Frye v. Cuomo, Case No. 4D19-14174th DCAJun 03, 2020Court shouldn't have given ex-wife unfettered discretion to request blood alcohol content testing from ex-husband.
Rather than make dad 100% responsible for the cost for BAC testing, on which dad's timesharing was conditioned, the court should have added the cost to the shared child support obligation.
Without evidence giving mom ultimate say so over education was in the best interests of the children, trial court shouldn't have given that to mom.
Read more at Sampson Collaborative Law Blog. Shared and Sole Parental Responsibility.
Frye v. CuomoParenting Plans
Craft v. Fuller, Case No. 2D19-28912d DCAMay 27, 2020Tweets, hashtags, posts on your own social media account aren't cyberstalking because they're not directed at a specific person under the stalking statute, 784.048(1)(d), Florida Statutes. Horowitz v. Horowitz, 160 So. 3d 530 (Fla. 2d DCA 2015) (Ex-H's Facebook postings weren't directed at ex-W)
Ex friends, ex business partners sued each other for stalking, dropped the suits, but one tweeted on his personal Twitter feed comments and hashtag "Spoofingschmuck" that didn't name the ex-friend, who wasn't even following the tweeter's account.
Fuller again sues for cyberstalking injunction, claiming Craft's tweets w hashtag were directed at him and he suffered emotional distress & couldn't eat or sleep. Trial ct agreed a reasonable person in Fuller's position, who'd been arrested for spoofing, would suffer emotional distress over the tweets.
For cyberstalking, even if one or more tweets may have been an indirect reference to someone, such indirect references posted on a private Twitter feed are insufficient as a matter of law to support a conclusion that the tweets were "directed at" the person.
Craft v. FullerDomestic Violence
Alobaid v. Khan, Case No. 3D19-21283d DCAMay 27, 2020Trial court had personal jurisdiction to enter temporary timesharing plan. Florida Mom alleges Kuwaiti dad abused her. Child a dual citizen of US and Kuwait. Court granted domestic violence injunction, giving mom 100% custody (timesharing), because mom feared dad would imminently abuse, remove, or hide their son based on his threat to take him to Kuwait. Dad got supervised visitation. During proceedings, dad sues for custody in Kuwait.
Home State under UCCJEA - dad argued court erred in approving temporary timseharing plan because Kuwait, not Florida, was the child's "home state."
"Home state" is defined as "the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding. . . A period of temporary absence of any of the mentioned persons is part of the period." 61.503(7), Fla. Stat. The UCCJEA does not define a "temporary absence." Sarpel v. Eflanli, 65 So. 3d 1080 (Fla. 4th DCA 2011).
The UCCJEA grants a Florida court temporary emergency jurisdiction if the child is present in FL and it's necessary in an emergency to protect the child because the child or child's parent is subjected to or threatened with mistreatment or abuse. 61.517(1), Fla. Stat. McAbee v. McAbee, 259 So. 3d 134 (Fla. 4th DCA 2018).
For discussion of "home state" and defenses to a wrongful abduction or retention claim under the Hague Abduction Convention, see 6 Defenses Under Hague Abduction Convention
Alobaid v. KhanFamily Law Procedure
Anderson v. Letosky and Precious Pets, Case No. 2D19-20652d DCAMay 27, 2020Article X, Section 4 of the Florida Constitution grants homestead exemption that protects the single family residence at issue from judgement creditors, with homestead property passing to decedent's heirs intacts, undivided.
The trial court ruled 75% of the residence wasn't homestead because late dad rented out bedrooms in the single-family residence.
In dad's probate, his judgment creditors were Letoky and Precious Pets, claiming dad owed $38,551.
In re Bornstein, 335 B.R. 462 (Bankr. M.D. Fla. 2005) , the probate court found that the rented portion of the residence lost its constitutional homestead protection.
Homestead property left to an heir is protected from forced sale to pay creditors' claims and administrative expenses of the estate under Article X, Section 4 of Florida's Constitution. Estate of Shefner v. Shefner-Holden, 2 So. 3d 1076 (Fla. 3d DCA 2009).
Is the owner's residence a fraction of the entire property? If so, can the owner's residence be severed by an imaginary line from the whole property? If so, the homestead protection won't extend to the rental units. First Leasing & Funding of Florida, Inc. v. Fiedler, 591 So. 2d 1152 (Fla. 2d DCA 1992).
But, if the court can't draw an imaginary line to sever the owner's residence from the others in the single-family home, the homestead protection extends to the whole property. Anderson (owner) shared common areas with the tenants. The rented bedrooms couldn't be severed from the residence by an imaginary line without destroying its utility as a single-family residence.
A homeowner doesn't abandon homestead protection simply because he or she may rent or lease portions of it to other people. In re Makarewicz, 130 B.R. 620 (Bankr. S.D. Fla. 1991)
"In the century which has passed since the enactment of Florida's first homestead exemption clause, in 1885, not a single reported case has declared a residential unit occupied by the owner as his family home to be non-exempt simply because the owner conducted business activities within those premises." Edward Leasing Corp. v. Uhlig, 652 F. Supp. 1409 (S.D. Fla. 1987).
Anderson v. Letosky Homestead
Schlossberg v. Estate of Sadie Kaporovsky, Case No. 4D19-20534th DCAMay 27, 2020Reversing judgment declaring Jack owned only half a Palm Beach condo and Sadie's estate owned the other half. Trial court found the deed conveying property from Sadie's revocable trust to her for life, with remainder to her daughter, wasn't valid. But it was valid.
As trustee of her own revocable trust, Sadie could revoke it. She could revoke the trust in part by withdrawing part of the trust property (the condo) from the trust. The trust also allowed the trustees to apply trust assets to Sadie's use.
Individually and as trustee of her own revocable trust, Sadie signed deed and her cotrustee joined in the deed. When mom dies, daughter held 100% title. Daughter sells 100% to Jack.
Review of a trust agreement and its interpretation is a question of law subject to "de novo review" & the appeals court takes a fresh look.
Discussing revocable trusts, the court follows the Florida Supreme Court in Fla. National Bank of Palm Beach County v. Genova, 460 So. 2d 895 (Fla. 1985)
A revocable trust is a unique type of transfer . . . . Since [the settlor] is the sole beneficiary of the trust during [the settlor's] lifetime, [the settlor] has the absolute right to call the trust to an end and distribute the trust property in any way [the settlor] wishes.
See also Siegel v. Novak, 920 So. 2d 89 (Fla. 4th DCA 2006) ("The central characteristic of a revocable trust is that the settlor has the right to recall or end the trust at any time, and thereby regain absolute ownership of the trust property.")
The trust empowered the trustees to convey the condo to the settlor, either as a principal distribution for her use or as a partial revocation of the trust.
Given the unique nature of the revocable trust and the settlor's right to control the disposition of her own property, the trial court erred in declaring the deed invalid.
Schlossberg v. Estate of Sadie Kaporovsky Trusts & Estates
Gilbert v. Gilbert, Case No. 3D19-8583d DCAMay 20, 2020Marital settlement agreement provided mandatory attorney fees to prevailing party in enforcement. Husband owed 3.1 million equalizing payment secured by a promissory note and mortgage on the marital home. He didn't pay her the last $1.5 million. As prevailing party, the former wife was entitled to recover her attorney fees.
In Florida, it is well-settled that entitlement to attorneys' fees can derive only from a statute or from an agreement between the parties. Topalli v. Feliciano, 267 So. 3d 513 (Fla. 2d DCA 2019). As in the case before us, where there is an agreement between the parties for the payment of attorneys' fees, "Trial courts do not have the discretion to decline to enforce such provisions, even if the challenging party brings a meritorious claim in good faith." Lashkajani v. Lashkajani, 911 So. 2d 1154 (Fla. 2005). "The trial court must make specific factual findings either at the hearing or in the written judgment supporting its determination of entitlement to an award of attorney's fees." Ortiz v. Ortiz, 227 So. 3d 730 (Fla. 3d DCA 2017)
GilbertMarital Settlement Agreements
C.G. v. M.M., Case No. 2D19-8572d DCAMay 20, 2020Paternity order established timesharing and parenting plan based on an event not objectively certain to occur & potential future relocation by mom to be with her boyfriend.
Trial court incorrectly established a timesharing schedule and parenting plan base on an event that wasn't objectively certain to happen, namely, mom's relocation to Hillsborough County from Pinellas County.
Rivera v. Purtell, 252 So. 3d 283 (Fla. 5th DCA 2018) held a court may address reasonably certain future events and prospectively modify timesharing.
The Florida Supreme Court's opinion in Arthur v. Arthur, 54 So. 3d 454 (Fla. 2010) does not prohibit a timesharing plan which applies the child's best interests as determined at the time of the final hearing to an event that is reasonably and objectively certain to occur at an identifiable time in the future. In Arthur, the Supreme Court reversed a timesharing plan where trial court incorrectly "determined that it could not prospectively determine a change in timesharing based upon the child starting kindergarten" and concluding that "[t]here was nothing speculative or uncertain about the child . . . starting kindergarten").
C.G. v. M.M.Parenting Plans
Vinson v. Vinson, Case No. 1D18-26021st DCAMay 18, 2020Amended judgment ordered equalization payment, which would be reduced by unpaid child support and, if not paid, would convert to monthly alimony, not terminable on death or remarriage or supportive relationship.
Trial court erred in using contempt powers to enforce an equitable distribution award.
Phagan o/b/o L.D.P. v. McDuffee, Case No. 5D19-19975th DCAMay 15, 2020A dissolution court has jurisdiction to consider a petition to extend child support for a dependent child past her 18th birthday when the petition is filed before the child reaches majority. Ruiz v. Ruiz, 783 So. 2d 361 (Fla. 5th DCA 2001)
A trial court lacks jurisdiction to modify a parent's support obligation in a divorce judgment for an adult dependent child when the petition for modification is filed after the child reaches majority. Brown v. Brown, 714 So. 2d 475 (Fla. 5th DCA 1998).
Then, an independent action must be brought to adjudicate the father's support obligation for an adult dependent child. The action belongs to the adult dependent child, who may bring a separate case for extended child support against either parent.
In Brown, the mother filed the petition when the dependent child was 26. In Phagan, mom filed before the child turned 18. Section 743.07(2) does not require a child be adjudicated dependent before he reaches majority for a trial court to have jurisdiction to order extended child support.
Section 743.07(2) only requires that the "dependency is because of a mental or physical incapacity which began prior to such person reaching majority."
Because mom alleged that the disability leading to daughter's dependency occurred before she reached majority and filed before she turned 18, the trial court had subject matter jurisdiction to consider the issue of extended child support. Section 743.07(2).
Phagan obo L.D.P. v. McDuffeeSpecial Needs Children
Ianni v. Ianni, Case No. 5D18-30825th DCAMay 08, 2020In determining dad's retroactive child support obligation, court failed to consider mortgage payments dad paid on marital home during divorce litigation.IanniChild Support
Erlandsson v. Erlandsson, Case Nos. 4D19-2521 and 4D19-25224th DCAMay 06, 2020Petition by parents for limited guardianship of adult special needs child. Examining committee reported daughter, now blind, wasn't taking care of her medical (diabetes) needs and psychiatric needs (schizophrenia).
Court failed to honor client's request to discharge her court appointed lawyer, who argued in favor of plenary guardianship in spite of her client's express wish no guardianship be established. The statute (744.102) requires an appointed lawyer represents the expressed wishes, not necessarily the "best interests," of a prospective ward.
Because the case involved no possible involuntary commitment or incarceration or termination of parental rights, client had no constitutional right to challenge the effectiveness of her appointed lawyer.
ErlandssonSpecial Needs Children
Scudder v. Scudder, Case No. 4D19-22884th DCAMay 06, 2020Parenting Plan failed to address all requirements of section 61.13(2)(b), Florida Statutes. The judgment also failed to address responsibility for extracurricular activities, travel expenses, and details about health care decisions and costs.
The statute requires the court to detail methods and technologies the parents will use to communicate with the children, but doesn't dictate how the parents may communicate with each other, and neither parent requested a specific means of communication.
Limiting communication to Talking Parents, Family Wizard, or similar app needed to be stricken.
READ Mental health blog articles:
How may parents, using #collaborativepractice, address protocol for "mental health treatment," unilateral consent to which each parent retains?
Mental Health Treatment for Children
Example Language: Mental Health Treatment in Collaborative Process
ScudderParenting Plans
Katz v. Riemer, Case No 3D19-12713d DCAMay 06, 2020Law firm not entitled to compelled financial disclosures from trust beneficiaries whose mom and stepdad signed postnuptial agreement. The postnup said the beneficiaries (their mom's descendants) would inherit 30% of their stepdad's net estate on mom's and his death.
Instead of doing what the postnuptial agreement required, after mom died, stepdad diverted or depleted assets, transferring them to his natural children, reducing his net estate from millions to nothing.
Beneficiaries sue attorneys who advised stepdad for malpractice, aiding and abetting breach of fiduciary duties, tortious interference with expectancy of inheritance, undue influence.
Attorneys sought discovery of funds beneficiaries inherited from mom, alleging the attorneys could defend by saying the purpose of the postnup provision & insuring the beneficiaries' financial health & had been accomplished. But The beneficiaries' inheritance from their mother and present economic health weren't issues the complaint framed.
Katz v. RiemerPostnuptial Agreements
Jones v. Jones, Case No. 5D19-8795th DCAMay 01, 2020Former Wife couldn't pay an equalizing payment without placing herself in financial jeopardy. See Abramovic v. Abramovic, 188 So. 3d 61 (Fla. 4th DCA 2016) (finding trial court erred in imposing equalizing payment plan where no record evidence established former wife's ability to make such payments; instead, record reflected that former wife could not make payments)
"Past average income, unless it reflects current reality, simply is meaningless in determining a present ability to pay. Past average income will not put bread on the table today." Andrews v. Andrews, 867 So. 2d 476, 479 (Fla. 5th DCA 2004) (quoting Woodard v. Woodard, 634 So. 2d 782, 782 & 783 (Fla. 5th DCA 1994)).
JonesEquitable Distribution
Pace v. Pace, Case Nos. 5D18-2343, 5D19-709, 5D19-23545th DCAMay 01, 2020Reverses civil contempt orders that conditioned ex-husband's release from jail for failing to pay alimony, child support, attorney fees, on payments he can't personally make. His ability to borrow from friends occasionally wasn't an appropriate source to satisfy purge orders or endless: Loans from friends was now a dry well.
His credit was shot. Potential employers saw his mugshot taken when he was jailed for not paying support, then wouldn't hire him. "A civil contempt order for nonpayment of support must include findings that the obligor willfully failed to comply with a prior court order for support while having the ability to make the established payments." Nation v. Boling, 206 So. 3d 810, 812 (Fla. 1st DCA 2016). The trial court must have competent substantial evidence as a basis for finding that the obligor has the ability to pay. Buchanan, 932 So. 2d at 271.
Paying a purge amount doesn't establish a party's current ability to pay. One-time payment "does not establish the ability to pay the order on an ongoing basis." Wendel v. Wendel, 875 So. 2d 820, 823 (Fla. 2d DCA 2004) (citing Sokol v. Sokol, 441 So. 2d 682, 685 (Fla. 2d DCA 1983)).
It's wrong to conclude a party can pay by borrowing from a third party. Kitchens v. Martin, 186 So. 3d 24, 24 (Fla. 5th DCA 2016) (citing Russell v. Russell, 559 So. 2d 675, 676 (Fla. 3d DCA 1990) (error to base conclusion of ability to pay on finding that a party may borrow money from a relative)).
The trial court's reliance on Sibley v. Sibley, 833 So. 2d 847, 848&49 (Fla. 3d DCA 2002), is misplaced. In Sibley, the court found man in willful contempt of court where the evidence showed he could have asked his rich parents to pay his support obligation - they'd already given him thousands, with all indications being they'd keep bankrolling their son.
Unlike in Sibley, although there was evidence Mr. Pace's parents helped pay his living expenses and attorney's fees, there was no evidence they'd paid his court-ordered obligations, nor evidence they'd recently paid his expenses.
Upholds trial court's award of fees even though FW's answer didn't ask for them, under Levine v. Keaster, 862 So. 2d 876 (Fla. 4th DCA 2003), which authorizes attorney fees to compensate for unneeded attorney services that bad faith litigation causes.
Diaz-Silveira v. Diaz-Silveira, Case Nos. 3D18-919, 3D17-27353d DCAApr 20, 2020Wife and husband lived beyond their means, racked up debt in 12-year marriage. The standard of living as an alimony factor "loses its punch" when the standard was too high for the parties' circumstances. Sheiman v. Sheiman, 472 So. 2d 521 (Fla. 4th DCA 1985)Diaz-SilveiraAlimony
Duhamel v. Fluke, Case No. 2D19-2582d DCAMay 01, 2020Reversing charging lien against equitable distribution assets lawyer had no hand in securing for his former client. The lawyer couldn't specify the "fruits" he alleged resulted from his legal services.
Charging lien cases include:
Mitchell v. Coleman, 868 So. 2d 639, 641 (Fla. 2d DCA 2004):
A charging lien is an attorney's equitable right to have costs and fees owed for legal services secured by the judgment or recovery in the lawsuit." Newton v. Kiefer, 547 So. 2d 727, 728 (Fla. 2d DCA 1989); see also Lochner v. Monaco, Cardillo & Keith, P.A., 551 So. 2d 581, 583 (Fla. 2d DCA 1989). "It is not enough to support the imposition of a charging lien that an attorney has provided his services; the services must, in addition, produce a positive judgment or settlement for the client, since the lien will attach only to the tangible fruits of the services." Correa v. Christensen, 780 So. 2d 220, 220 (Fla. 5th DCA 2001).
Szurant v. Aaronson, 277 So. 3d 1093, 1094 (Fla. 2d DCA 2019) ("A charging lien judgment in a dissolution action . . . is limited only to property recovered by the client in "the dissolution action as a result of the attorney's efforts.").
A charging lien may attach to assets awarded as part of the equitable distribution; Menz & Battista, PL v. Ramos, 214 So. 3d 698, 700 (Fla. 4th DCA 2017), and alimony, Tucker v. Tucker, 165 So. 3d 798, 800 (Fla. 4th DCA 2015).
However, "[a]n attorney's charging lien should not be enforced against an award of . . . alimony if to do so would deprive a former spouse of daily sustenance or the minimal necessities of life." Dyer v. Dyer, 438 So. 2d 954, 955 (Fla. 4th DCA 1983)); Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So. 2d 88, 92 n.5 (Fla. 3d DCA 1987) ("[A]n alimony award designed to provide 'daily sustenance and the minimal necessities of life' . . . [is] not [an] award against which the lien can be enforced.").
Duhamel v. FlukeAttorney Fees
Kotlarz v. Kotlarz, Case No. 1D18-48181st DCAApr 27, 2020Former wife not entitled to award of fees and costs under 61.16 for her efforts to collect money judgment against ex.
After wife reduced to a money judgment an equalizing payment her ex owed, she became a judgment creditor. She was subject to the remedies available to any other judgment creditor. See DeSantis v. DeSantis, 714 So. 2d 637, 638 (Fla. 4th DCA 1998) (equitable distribution awards may only be enforced through the usual remedies available to a creditor against his debtor). Chapter 61 - which allows for attorney fee awards for actions "under this chapter" [Chapter 61], doesn't provide remedies for judgment creditors.
Kotlarz Attorney Fees
Bryan v. Wheels, Case No. 1D19-26701st DCAMay 01, 2020When parents don't agree, modification of custody is extraordinarily hard.
Long distance parenting plan & mom lived in TX, dad in FL w 2 kids. After 2 modifications (1 when mom moved from TX to FL, the 2d when she moved from FL to NJ), she moves back to FL within 35 miles of kids, and again seeks modification of the parenting plan.
Mom alleges a substantial change in circumstances, and the trial court agrees; dad appeals.
Modification proceedings are "entirely different" from initial custody decisions, Cooper v. Gress, 854 So. 2d 262, 267 (Fla. 1st DCA 2003). Judges have considerably less discretion in considering them "because [they] disrupt children's lives." Ragle v. Ragle, 82 So. 3d 109, 113 (Fla. 1st DCA 2011).
The legal standard: Parties seeking to modify a parenting plan must show "a substantial, material, and unanticipated change in circumstances and that the proposed modification is in the best interests of the child." Section 61.13(3), Fla. Stat.; see also Garcia v. Guiles, 254 So. 3d 637, 640 (Fla. 1st DCA 2018).
"This required proof imposes an 'extraordinary burden' on the party seeking modification." Hutchinson v. Hutchinson, 287 So. 3d 695, 696 (Fla. 1st DCA 2019) (quoting Ragle, 82 So. 3d at 111).
Florida law doesn't consider a parent's move & by itself and with no showing of how that move impedes the present timesharing plan & to constitute a substantial and material change in circumstances. See, e.g., Moore v. McIntosh, 128 So. 3d 985, 985 (Fla. 1st DCA 2014) ("relocation does not itself constitute a substantial change of circumstances warranting modification of custody"); Hutchinson, 287 So. 3d at 697 (ex-wife's move to another home in the same school district not a substantial change in circumstances); Ogilvie v. Ogilvie, 954 So. 2d 698, 701 (Fla. 1st DCA 2007) (no change in circumstances where parents relocated from NY to FL); Shafer v. Shafer, 898 So. 2d 1053, 1055&56 (Fla. 4th DCA 2005) ("[C]ourts have routinely held that relocation alone is not a substantial change in circumstances to support a modification of custody."); Sotomayor v. Sotomayor, 891 So. 2d 559, 561 (Fla. 2d DCA 2004) ("[A] custodial parent's move to a foreign state, without more, is not a substantial change of circumstances that would support a modification of custody."); Zugda v. Gomez, 553 So. 2d 1295, 1296&97 (Fla. 3d DCA 1989) (concluding that custodial parent's move from Florida to Michigan alone not a substantial change in circumstances). In addition, the trial court didn't address whether the mother's move back to Florida & her third interstate move in 6 years & was anticipated by the parties when they last modified the plan. See Garcia, 254 So. 3d at 640 (requiring a showing that the change in circumstances wasn't reasonably anticipated).
Mom failed to meet her burden of providing competent, substantial evidence that the circumstances changed in substantial, material, and unanticipated ways, and failed to show that a modification of timesharing would be in the children's best interests.
Bryan v. WheelsParenting Plans
Walker v. Walker, Case No. 1D19-2951st DCAMay 01, 2020The trial court failed to include a finding that no other form of alimony than permanent alimony was fair and reasonable under the parties' circumstances.WalkerAlimony
Rhoden v. Rhoden, Case No. 1D18-33071st DCAApr 29, 202035-year marriage. The facts and law do not support refusal to award permanent alimony. The court erred in imputing income to wife and considering future or anticipated events in setting current alimony. The court misapplied durational alimony law. The court awarded the former wife durational alimony instead of permanent alimony.
Durational alimony provides a party with support for a set period of time after a long-term marriage if there is no ongoing need for support on a permanent basis. Section 61.08(7), Fla. Stat. Durational alimony may be awarded when permanent alimony is inappropriate. But the court did not find permanent alimony was inappropriate and did not find the former wife had no ongoing need for support on a permanent basis.
The trial court erred in considering future receipt of Social Security retirement benefits in ten years and using that date as an end date for the durational alimony. There was no evidence the parties would collect Social Security on the anticipated date in 10 years.
Alimony should be based on "current existing circumstances, and not on possibilities." Hedden v. Hedden, 240 So. 3d 148, 151 (Fla. 5th DCA 2018); Nelson v. Nelson, 651 So. 2d 1252, 1254 (Fla. 1st DCA 1995).
The trial court also misapplied the law of durational alimony in stating the former wife could seek to "extend" the durational alimony period. The length of durational alimony cannot be extended except under exceptional circumstances. Section 61.08(7), Fla. Stat.
With a neutral collaborative financial, divorcing clients, unlike a judge whose discretion Florida family law limits, CAN consider anticipated events and agree on current alimony and future alimony adjustments when future triggering conditions occur.
Find neutral collaborative financial professionals at Collaborative Family Law Group of Central Florida
Haeberli v. Haeberli, Case No. 5D18-24495th DCAApr 24, 2020Mom had to devote her full attention to special needs child, so her working outside the home would be impossible. Dad, a successful attorney, remarried, had 3 children with new wife, and lives with his new family in a million-dollar house in Princeton, NJ.
2006 divorce petition. The parties battled in uninterrupted and contentious litigation for 14 years.
When new trial judge (Hon. Diana Tennis) took over the case in 2018, she observed: "[T]he Parties seem utterly unable to stop this never ending round-robin of motion filing and litigation. lt is no wonder that the relatively straight forward modification petitions have not been resolved with the "wack-a-mole" need for piece meal motions to be dealt with over and over. This level of litigation is very out of proportion to the issues at hand. This must be quite stressful for the litigants and would have to have a spillover effect on the parties' child."
In 2014, mom petitioned for increases in child support and alimony. In March 2017, mom filed a supplemental petition, which also sought increases in child support and alimony based upon her claim that substantial changes in the parties' financial circumstances had occurred since the October 2008 final judgment dissolving their marriage. Dad responded with a counterpetition in which he sought a reduction in both child support and alimony. The trial court conducted a three-day trial during which it received evidence concerning the special needs child's needs, mom's needs, and dad's ability to pay.
The parties' child's medical condition required around-the-clock care by two people, a wheelchair, and multiple medications. The parties agreed that they did not want to institutionalize the child, and preferred to have him cared for at home. Mom had cared for child with the assistance of paid health care assistants.
As the child grew, his needs increased. The home was no longer big enough and wasn't wheelchair accessible. Grandmother paid for a new, suitable house to be built, which she rented to mom. The van mom had used for transporting the child was no longer suitable, so she purchased a new, wheelchair-accessible van.
Mom arranged for 20 hours per week respite care by having an additional aide come to the house, so she could be away from the child to attend to her own needs and routine events.
There were often repeated denials and lengthy delays in benefit payments or reimbursements for bills and needs. When the private health insurer would pay benefits, dad had them sent to him and kept the money, rather than turning it over to mom.
Judge Diana Tennis found dad's belief the son's medical needs were completely covered by private insurance, Medicaid, or other governmental sources was wrong: "The Court would be hard-pressed to point definitively to any reasonable rock left unturned in the Mother's efforts to obtain help for the Child. Short of the parties placing the child in an institutional setting (something they clearly did not anticipate in their agreement) it would be difficult to imagine anyone managing the situation or the Child's safety significantly better than the Mother has so far. What is needed is more financial resources to make sure there really are two people available to assist the Mother for more of the time."
Dad argued the court should rely only on 2008 marital settlement agreement (MSA) to determine whether child support and alimony should be modified based on changed financial circumstances.
The MSA described circumstances under which child support or alimony could be modified, but those provisions weren not exclusive and didn't limit or prohibit modification under Florida Statutes and case law.
The trial court's interpretation of the MSA is subject to de novo review. Kipp v. Kipp, 844 So. 2d 691, 693 (Fla. 4th DCA 2003) (quoting McIlmoil v. McIlmoil, 784 So. 2d 557, 561 (Fla. 1st DCA 2001)). We agree with the trial court that the MSA did not provide the exclusive basis for modification of alimony or child support.
Parents are not free to contract away the rights of their children; the child support right belongs to each child. Armour v. Allen, 377 So. 2d 798 (Fla. 1st DCA 1979).
The trial court correctly determined there had been significant changes in the parties' relative financial situations and in their child's needs since execution of the MSA and entry of the original final judgment in 2008. Mom's expenses and expenses for the special needs child's care steadily and drastically increased. Lawyer-Dad's income rose dramatically.
The trial court considered the factors set forth in section 61.08 and included that analysis in the supplemental final judgment. The trial court concluded that mom proved there had been permanent, substantial, unanticipated changes that justified modification of both child support and alimony. The trial court found those changes had existed since 2014, justifying retroactive alimony and child support.
If dad sticks to the $750/month schedule the court ordered for paying ~$110,000 total retroactive child support, alimony, and attorney's fees, it will take him 12 years to pay it off. But, because the timing and amount of those payments are within the trial court's discretion, the appellate court couldn't reverse and remand for entry of an amended order providing for a more compressed payment schedule.
HaeberliSpecial Needs Children (child support) & Alimony
Rhoulhac v. Francois, Case No. 4D19-1832 4th DCAApr 22, 2020Credits or setoffs on sale of marital home - the parties and court had not said what would happen after mom's exclusive use and possession ended once youngest child turned 18.
Court retained jurisdiction to "clarify" the final judgment. After mom & youngest child moved out when child turned 18, dad transferred home by quitclaim deed to his brother, but didn't notify mom or compensate her. His current wife, instead of ex-wife, co-signed deed to dad's brother.
Former wife claimed she and ex should have split proceeds from sale and she should be reimbursed for ½ the mortgage payments she made after the divorce judgment.
He claimed the divorce judgment's silence about the former wife receiving any financial interest in the marital home meant she was entitled to no interest.
The final judgment's silence as to the marital home's disposition made the final judgment ambiguous. The final judgment lacked the specific determinations required for the disposition of a marital home under sections 61.075 and 61.077, Florida Statutes.
Judge may clarify what's implicit in a final judgment when its terms are ambiguous as applied to facts developing after the judgment and then enforce it. Clarification makes a judgment clearer and more precise, as opposed to a modification, which changes the status quo and alters the parties' rights and obligations. See Bustamante v. O'Brien, 286 So. 3d 352 (Fla. 1st DCA 2019).
Rhoulhac v. FrancoisEquitable Distribution
Bell v. Bell, Case No. 1D19-27841st DCAApr 23, 2020Improved life circumstances don't constitute a substantial change in circumstances to allow for a modification of timesharing.
Dad successfully completed mental health counseling over 2 years w helpful prescription meds and asked for more time w 3 kids. His therapist confirmed he had become stronger emotionally, family time was easier for him to handle.
Court wrongfully concluded dad's mental health-related progress amounted to a substantial, material change warranting modification of the parenting plan.
"Appellate courts review orders modifying time-sharing for an abuse of discretion." Ness v. Martinez, 249 So. 3d 754 (Fla. 1st DCA 2018). Modification proceedings are "entirely different" than those for initial custody determinations, Cooper v. Gress, 854 So. 2d 262 (Fla. 1st DCA 2003), and courts have considerably less discretion in them. Ragle v. Ragle, 82 So. 3d 109 (Fla. 1st DCA 2011). A party seeking to modify a parenting plan "must show that (1) circumstances have substantially and materially changed since the original custody determination, (2) the change was not reasonably contemplated by the parties, and (3) the child's best interests justify changing custody." Garcia v. Guiles, 254 So. 3d 637 (Fla. 1st DCA 2018) (quoting Reed v. Reed, 182 So. 3d 837 (Fla. 4th DCA 2016)); see also Section 61.13(3), Fla. Stat. "This required proof imposes an 'extraordinary burden' on the party seeking modification." Hutchinson v. Hutchinson, 287 So. 3d 695 (Fla. 1st DCA 2019) (quoting Ragle, 82 So. 3d at 111). To determine whether the trial court abused its discretion, we look to the record for competent substantial evidence to support the trial court's decision. See Jannotta v. Hess, 959 So. 2d 373, 374 (Fla. 1st DCA 2007).
Jannotta: mom overcame alcohol abuse, remarried, was better able to provide a stable home for 4 kids than even dad, but this evidence wasn't a "substantial and material change in circumstances."
BellParenting Plans
Talarico v. Talarico, Case No. 3D20-05603d DCAApr 22, 2020Court erred by modifying stipulated custody arrangement under parenting plan giving mom and dad equal timesharing and shared parental responsibility and curtailed mom's timesharing with twins.
In January 2020, mom, a doctor, cancelled child's planned dental surgery, citing lack of compliance w preoperative instructions. Dad filed urgent motion to suspend mom's timeshairng, alleging parental alienation. Court interviewed twins in chambers, didn't record them, but wouldn't give the parents a summary of what they said.
Court announced it would limit mom's contact w kids to shared meal at restaurant twice a week and relieve dad of child support obligation. Following the entry of the challenged orders, Miami-Dade County imposed dine in restrictions in response to the COVID-19 pandemic, resulting in a de facto denial of any visitation. See Miami-Dade County Exec. Order No. 03-20 (Mar. 17, 2020).
Court cites axiom: "No person who is a party to a divorce proceeding - litigant, counsel, or chancellor - relishes the spectacle of a child testifying in open court as to his or her preference for one parent over another." Haase v. Haase, 460 S.E.2d 585, 589 (Va. Ct. App. 1995) (citing Buck v. Buck, 31 N.W.2d 829, 831 (Mich. 1948); Price v. Price, 192 S.W. 893, 894 (Ark. 1917)). "[A] child's choice between parents is often emotionally wrenching, and announcing that choice in open court could add significantly to the child's emotional toll." N.D. McN. v. R.J.H., 979 A.2d 1195, 1200 (D.C. 2009). Hence, "the preferred method of receiving such evidence in the majority of jurisdictions is to obtain the child's views in an in camera interview." Haase, 460 S.E.2d at 589 (citing Stickler v. Stickler, 206 N.E.2d 720, 723 (Ill. App. Ct. 1965). See generally Cathy J. Jones, Judicial Questioning of Children in Custody and Visitation Proceedings 18 Fam. L.Q. 43 (1984)).
When a judge relies primarily on in chambers interviews with children to modify custody, but doesn't divulge the information learned from the unrecorded interviews, the judge denies a parent due process. There's no way to rebut the facts on which the decision maker relied.
TalricoParenting Plans
Befanis v. Befanis, Case No. 5D19-3595th DCAApr 17, 20202010 judgment dissolved long-term marriage. Ophthalmologist had to pay $12,500 alimony per month to ex-wife. 5 years later, he sold his business, was under a 5-year employment contract, and salaried, with no interest in business. He was nearing retirement at age 65. Parties stipulated to an order reducing alimony to $7,500/month, but didn't include basis for reducing alimony.
Ex-Husband filed a 2d petition to modify after his employment contract ended and he retired.
The court found the stipulated order was in contemplation of FH's pending retirement and had factored that in when it approved the parties' stipulation to reduce alimony. But there was no evidence they contemplated the actual change and consequences to his income. The prior petition didn't discuss the financial circumstances surrounding his future retirement. What would his future retirement income be?
A judge cannot -- but a collaborative team can -- help you and your spouse create forward looking solutions anticipating actual future changes in financial circumstances and plan for agreements depending on actual, verifiable income. Avoid expensive modification proceedings and appeals.
Read more at Florida Divorce Process Options
Fagen v. Merrill, Case No. 2D19-29482d DCAApr 17, 2020Former Husband's current financial information wasn't relevant to any issue in litigation where former wife's Rule 12.540(b) motion to set aside final judgment had been pending for 5 years with no ruling on the merits. She claimed he fraudulently failed to disclose $1.75 million he received.
Trial judge limited discovery on need and ability to pay to updated financial affidavits, most recent tax return, 3 months' pay stubs, bank statements, credit card statements.
The supreme court in Bane v. Bane, 775 So. 2d 938 (Fla. 2000) determined an award of fees under 61.16 for a rule 1.540(b) proceeding is not prohibited, deference must still be given to settlement agreements, especially agreements to divide property in divorces.
Bane held, if the settlement agreement does not preclude awarding fees, a fee award is not prohibited under section 61.16 if the court considers all the factors in Rosen v. Rosen, 696 So. 2d 697 (Fla. 1997) in making an award. Rosen requires that a court consider equitable factors, including the scope and history of the litigation; its duration; the merits of the positions; whether the litigation is brought or maintained primarily to harass (or a defense raised to frustrate or stall); and the existence and course of prior or pending litigation.
Fagen v. MerrillAttorney Fees
Singer v. Singer, Case No. 2D18-18542d DCAJun 03, 2020Denying alimony claim, judge imputed income to wife from her live-in boyfriend's contributions towards expenses in their supportive, long-term relationship and from recurring gifts from her dad.
After trial, before entry of final judgment, wife's boyfriend & dad died. Their $ represented 37% of her total imputed income.
No unfair prejudice for trial court to exercise discretion to reopen evidence on wife's motion for rehearing under Florida Family Law Rule of Procedure 12.530.
Remand for trial court to reconsider alimony, child support, and attorney fees.
Lauterbach v. Lauterbach, Case No. 2D19-524 2d DCAApr 15, 2020Neither husband nor wife resided in Florida during 6 months before she filed dissolution petition. Court lacked subject matter jurisdiction, so its temporary order awarding her $15,800/month in alimony plus exclusive use and possession of FL home was was void.
Couple split time between 2 homes, 1 in Germany, 1 in Florida. H and W flew from Germany to FL in November 2016 so Wife could get 24-hour care after a stroke. After 2 weeks, problems w care in FL, so they go back to Germany. 4 months later, she traveled to rehab in Switzerland. 2 months later, she flew to Indiana to stay near nephew. August 2017, she filed petition for divorce in Pinellas County, FL.
W presented evidence of residency in Palm Harbor, FL: driver's license showing FL address, vehicle, boat registrations, bank statements.
The 6-month "residency requirement is jurisdictional and must be alleged and proved in every case." Fernandez v. Fernandez, 648 So. 2d 712 (Fla. 1995). That means: an actual presence in Florida coupled with an intention at that time to make Florida the residence. McCarthy v. Alexander, 786 So. 2d 1284 (Fla. 2d DCA 2001).
Carter v. Carter, Case No. 4D19-351 4th DCAApr 15, 2020Court erred imputing $55,000 a year based on speculative, part-time lawn work, but even w/o that income, evidence supported husband could earn that amount from other sources: massage therapist, hospital work he quit when the couple split, and barter work.
Court failed to credit against back child support payments dad had made for kids' benefit before the divorce case was filed. Dad was paying $900 per month to cover the expenses of both mom and kids, including mortgage payments. See Julia v. Julia, 263 So. 3d 795 (Fla. 4th DCA 2019) (in determining retroactive child support trial court erred in failing to credit husband for mortgage payments he made during retroactive period).
CarterChild Support
Robinson v. Christiansen, Case No. 3D19-1709 3d DCAMar 25, 2020Florida law requires one of the parties to the marriage to reside in the state for six months before filing a petition for dissolution of marriage. Jenkins v. Jenkins, 915 So. 2d 1248 (Fla. 4th DCA 2005) (citing Section 61.021, Fla. Stat. (2004)). Residency has been defined as an actual presence in Florida coupled with an intention at that time to make Florida the residence. The trial court must find proof of residency by clear and convincing evidence. Beaucamp v. Beaucamp, 508 So. 2d 419 (Fla. 2d DCA 1987).
Upholds the court's finding the wife was not credible and she failed to establish her residence in Florida for six months preceding the filing of the petition by clear and convincing evidence. The court further found, based on the testimony of both the husband and the wife, that they were living in Denmark in January 2019 and filed for permanent residency on behalf of the wife saying that she lived there.
Robinson v. ChristiansenJurisdiction
Lupo v. Lawson, Case No. 2D19-9792d DCAMar 18, 2020Partition of real property as joint tenants with right of survivorship. Lupo paid initial deposit & down payment - $78K; Lawson $0 & Lupo paid half the mortgage & all utilities & maintenance.
Prior to allocating proceeds from a partition sale, the trial court must first "determine each party's percentage of ownership of the property." O'Donnell v. Marks, 823 So. 2d 197, 199 (Fla. 4th DCA 2002). Then, it must "determine the reimbursable expenses incurred after closing and calculate each party's proportionate share using each party's percentage of ownership." Id.; see also Fernandez v. Marrero, 282 So. 3d 928, 930 (Fla. 3d DCA 2019) ("In a partition proceeding, there must be an accounting to determine whether each co-tenant has paid his or her proportionate share of the expenses of the property, and to adjust the co-tenants' accounts accordingly.").
Lupo v. LawsonProperty
Diaz v. Diaz, Case No. 3D19-493 3d DCAMar 18, 2020How would YOU spend your golden years?
Couple married in Havana in 1967; separated in 2015 (48-year marriage).
She: 79 (retired from Humana). He: 71 (mechanic).
Appellate court sends case back to trial court because, the face of the final judgment - there was no transcript - showed the judge failed to include some marital assets in equitable distribution scheme, failed to identify all marital & nonmarital assets, ordered unequal distribution w/ no stated substantiation.
Other mistake: ordering "special equity," which the FL legislature abolished in 2008.
DiazEquitable Distribution
Super Cars of Miami, LLC v. Webster a/k/a Travis Scott, Case No. 3D19-0826 3d DCAMar 11, 2020When should a court find a settlement agreement ambiguous? Rented 2012 Lamborghini Aventador gets in accident. What does the word 'only' mean in a settlement agreement?
Webster will only pay for any and all reasonable repairs to the [Lamborghini] . . .
As aptly stated by another court, '[o]nly means only.' 1000 Friends of Fla., Inc. v. Palm Beach Cty., 69 So. 3d 1123, 1127 (Fla. 4th DCA 2011) (alteration in original) (quoting Union Station Assocs., LLC v. Puget Sound Energy, Inc., 238 F. Supp. 2d 1218, 1225 (W.D. Wash. 2002)). 'It means to the exclusion of all else.' Fournier v. Kattar, 238 A.2d 12, 16 (N.H. 1968) (citing Moore v. Stevens, 90 Fla. 879, 106 So. 901 (1925)).
Contract interpretation 101:
"The interpretation of a contract, including whether the contract or one of its terms is ambiguous, is a matter of law subject to de novo review." Real Estate Value Co., Inc. v. Carnival Corp., 92 So. 3d 255, 260 (Fla. 3d DCA 2012) "Where the words of a contract in writing are clear and unambiguous, its meaning is to be ascertained in accordance with its plainly expressed intent." M & G Polymers USA, LLC v. Tackett, 574 U.S. 427, 435, 135 S. Ct. 926, 933, 190 L. Ed. 2d 809 (2015) (quoting 11 Williston, Williston on Contracts Section 30:6 (4th ed. 2012)). "We cannot determine the rights of the parties by looking at only a part of the contract. We must construe it as a whole." Marion Mortg. Co. v. Howard, 100 Fla. 1418, 1425, 131 So. 529, 531 (1930) (citations omitted). "[A] cardinal principle of contract interpretation is that the contract must be interpreted in a manner that does not render any provision of the contract meaningless." Silver Shells Corp. v. St. Maarten at Silver Shells Condo. Ass'n, Inc., 169 So. 3d 197, 203 (Fla. 1st DCA 2015). Thus, "we must construe the provisions of a contract in conjunction with one another so as to give reasonable meaning and effect to all of the provisions." Aucilla Area Solid Waste Admin. v. Madison Cty., 890 So. 2d 415, 416-17 (Fla. 1st DCA 2004).
Super Cars of Miami, LLC v. Webster a/k/a Travis ScottSettlement Agreements
Sager v. Sager, Case No. 4D19-1722 4th DCAMar 11, 2020Court erred in unequal distribution of assets & ordering $250,000 life insurance.
72 year old fh, 66 year old fw. Court found he dissipated his businesses, concealed assets, misled the court, & obfuscated facts.
The court intended an unequal distribution of assets, & said why, but failed to identify the value of the marital home & percentages to be apportioned.
On life insurance, court found "special circumstances" to order FH secure his obligations - wife would be left in dire economic straits if he died, lived paycheck to paycheck; but no findings about availability & cost of policy & his ability to pay for one.
Beneficiary Designations: Checklist for Collaborative Practice Teams
Collaborative Marital Settlement Agreements: Insurance Policies and Accounts - Beneficiary Designations - Section 732.703
Collaborative Marital Agreements - Beneficiary Designations After Divorce
SagerEquitable Distribution
Meyers v. Meyers, Case No. 2D18-49312d DCAMar 06, 2020Domestic violence by new spouse against dad in child's presence would be a substantial change in circumstances justifying modifying timesharing (from 50-50 to 90-10), but not an award of sole parental responsibility over education to child's mom. After Valentine's dinner, current wife threw metal garbage can at child's dad in child's bedroom while child was in bed. Dad told child to keep the incident secret. Child's therapist testified incident psychologically hurt child, who returned to habit of sleeping in mom's bed.
"A party seeking to modify a parenting plan 'must show that (1) circumstances have substantially and materially changed since the original custody determination, (2) the change was not reasonably contemplated by the parties, and (3) the child's best interests justify changing custody.'" Garcia v. Guiles, 254 So. 3d 637, 640 (Fla. 1st DCA 2018) (quoting Reed v. Reed, 182 So. 3d 837, 840 (Fla. 4th DCA 2016)); see also Section 61.13(3), Fla. Stat. (2017). The substantial, material, and unanticipated change in circumstances must not have been contemplated at the time the parties entered into their timesharing agreement. See Cooper v. Gress, 854 So. 2d 262, 265 (Fla. 1st DCA 2003). This court recognizes that parents engaging in domestic violence in front of their children constitutes an unanticipated, material, and substantial change in circumstances supporting modification of a timesharing arrangement. See e.g. Slaton v. Slaton, 195 So. 3d 1192, 1194 (Fla. 2d DCA 2016).
MeyersDomestic Violence
Law v. Law, Case No. 3D18-1177 3d DCAMar 04, 2020Trial court should have granted ex-wife's motion for indemnification against ex-husband under debt assumption & hold harmless provision in their marital settlement agreement.LawMarital Settlement Agreements
Judy v. Judy, Case No. 2D18-15662d DCAMar 04, 2020The trial court erred by imputing income to the Former Wife; contrary to the parties' marital settlement agreement.JudyMarital Settlement Agreements
Socol v. Socol, Case No. 4D18-3565 4th DCAMar 04, 2020The trial court erred in not following the parties' stipulation regarding the former wife's attorney's fees. The trial court erred in modifying the parties' shared parental responsibility to award the former wife sole parental responsibility without the required statutory finding that shared parental responsibility would be detrimental to the child.SocolParenting Plans
Brown v. Norwood, Case No. 5D18-3836 5th DCAFeb 28, 2020Trial judge failed to figure out alimony & child support correctly because it used gross monthly income but didn't consider ordinary & necessary business expenses dad, a self-employed commercial truck driver, incurred. Brown v. NorwoodChild Support
Schurr v. Silverio & Hall, P.A., Case No. 2D18-2876 2d DCAFeb 14, 2020Schurr & Hertz, the former wife's attorneys, had no physical possession of Former Husband's proceeds of recovery against which his prior attorney (Silverio) could satisfy his attorney's charging lien. But, 1 month before the Final Judgment, the ex-H's prior attorney knew the parties signed a marital settlement agreement. Silverio's claim against the opposing attorneys (Schurr & Hertz) was not supported by the material facts necessary to establish its claim and was not supported by the application of the then-existing law to the material facts. The trial court erred by denying Schurr and Hertz's 57.105 motion.Schurr v. Silverio & HallAttorney Fees
Ezra v. Ezra, Case No. 3D19-0704 3d DCAFeb 05, 2020Affirming grant of sole decision-making authority to mom re children's education and medical needs. Kids 10 & 13. At divorce trial, mom revealed dad abused her & kids. Court okd a parenting plan parties agreed to with shared parental responsibility. 10-year acrimony between parents. When $ ran out for private school, & mom sought scholarships for kids school, dad sabotaged her efforts. Dad obstructed & adjusted prescription med dosage child needed for medical condition.
Record showed basis to modify previously adopted settlement agreement. Dad passively & overtly hindered mom's arduous attempts to foster the children's happiness, mental health, academic prowess, and stability.
Despite neglecting his financial responsibilities & stipulating to religious day school enrollment, dad impeded registration & sought to undermine efforts to get financial aid. He reduced child's prescription drug dosage.
Upholds changing parental responsibility from shared to mom's having sole parental responsibility. Shared Parental Responsibility and Sole Parental Responsibility
EzraParenting Plans
2-Bal Bay Properties, LLC v. Asset Management Holdings, LLC, Case No. 2D18-2873 2d DCAFeb 07, 2020When someone makes improvements to real property, the measure of damages in an unjust enrichment case is the enhanced value of the property from the owner's perspective, not the cost of the improvements. See 14th & Heinberg, LLC v. Terhaar & Cronley Gen. Contractors, Inc., 43 So. 3d 877, 880 (Fla. 1st DCA 2010)
For a transaction to be considered a fraudulent transfer under the Uniform Fraudulent Transfer Act, the property being transferred must be an "asset." When 2-Bal Bay transferred the property a valid lien encumbering it exceeded its value. With negative equity, the property didn't meet the definition of "asset" under section 726.102(2) of the Uniform Fraudulent Transfer Act.
2-Bal Bay PropertiesProperty
Marenco v. Marenco, Case No. 2D18-16642d DCAFeb 07, 2020In calculating gross income, the trial court failed to include losses based on ownership of a townhouse purchased before the marriage. The parent rented the townhouse to a tenant, but she incurred monthly losses because of mortgage & maintenance fees.
Calculating income under the Florida child support statute requires knowing the money available to support the child. There's no justification for failing to account for negative rental income just as the court would account for positive. See, e.g., Masnev v. Masnev, 253 So. 3d 638, 639 (Fla. 4th DCA 2018) (holding that the trial court erred by failing to include former wife's rental income in its calculation of her gross monthly income).
Mom & dad stipulated to mom's net monthly income & expenses for retroactive child support period, but court deviated from the stipulated amounts w/o explanation or apparent reason.
MarencoChild Support
Williams v. Jones, 290 So. 3d 609 1st DCAFeb 03, 202016 year, 11 month marriage. Court upholds permanent alimony rather than durational alimony award. W had health issues precluding employment. Affirms decision to treat marriage 1 month shy of 17-year presumption as a long term marriage.
A party's age is not a valid basis to deny permanent alimony absent evidence that the receiving former spouse's relative youth would allow that former spouse to earn income sufficient to support a lifestyle consistent with that enjoyed during the marriage.
Williams V. JonesAlimony
Clark v. Meizlik, Case No. 4D19-20694th DCAJan 29, 2020The long-distance parenting plan approved by the trial court failed to comply with Florida's relocation statute, section 61.13001, Florida Statutes.
In granting the temporary relocation, the court also approved an amended parenting plan decreasing Clark's annual overnight visits with his daughter and giving Meizlik decision-making authority over educational and non-emergency medical decisions.
The offending language: "any additional relocation of [daughter] outside of Vero Beach or St. Augustine is subject to and must be sought in compliance with section 61.13001, Florida Statutes." The relocation statute allows a parent to relocate if the parent changes residence less than 50 miles from the parent's current residence.
Clark v. MeizlikTimesharing - Relocation
Haupt v. Haupt, Case No. 1D19-23831st DCAJan 29, 2020Trial court must consider bonus income for child support. In Crowley v. Crowley, 672 So. 2d 597, 600 (Fla. 1st DCA 1996), this Court held that the trial court erred by not including the former husband's bonus income in its child support calculation when the record was clear that the former husband received bonuses in the preceding four years.HauptChild Support
Lunsford v. Engle, Case No. 4D19-7744th DCAJan 22, 2020Grandmother correctly argued court in Florida, the grandchild's home state under the Uniform Child Custody Jurisdiction and Enforcement Act, erred by not exercising initial custody jurisdiction over the child, because Oregon court had exercised emergency jurisdiction while the child was there.
Grandmother correctly argued Florida court violated her due process rights when it spoke with Oregon judge but didn't allow her to participate.
Florida court must exercise its initial custody jurisdiction with grandmother's petition for temporary custody.
When grandchild was 3 months, mom & dad left Florida for Oregon. Dad hit mom while she was driving and child was in rear seat, causing an accident. Mom went back to FL with the child and resumed living at grandmother's home.
Lunsford v. EngleCustody Jurisdiction
Hett v. Barron-Lunde, Case No. 2D19-402d DCAJan 22, 2020Review order compelling Hett, confidante of deceased dad, to produce personal tax returns and financial information & ordering nonparty trust records produced. Dad's daughter, as personal representative, alleged woman got $200,000 from dad's bank account as his mental health deteriorated.
Woman had 20-year relationship with dad, with whom she had 3 joint bank accounts and who appointed her as his health care surrogate. She drove him to doctor & lawyer appointments, to the bank, cooked for him.
Court departed from essential requirements of law in compelling nonparty trust to disclose financial records without conducting evidentiary hearing and compelling attorney-client privileged communications without an in camera inspection.
Where a trial court orders the disclosure of a nonparty's financial information without considering any evidence regarding its relevance, the trial court departs from the essential requirements of law.
Personal financial information is afforded protection under the fundamental right to privacy found in Article I, section 23, of the Florida Constitution. Woodward v. Berkery, 714 So. 2d 1027, 1035 (Fla. 4th DCA 1998). EXCEPTION: A party may be required to produce personal financial information in the prejudgment context when the information is relevant to the allegations in the complaint. Regions Bank v. MDG Frank Helmerich, LLC, 118 So. 3d 968, 969 (Fla. 2d DCA 2013).
Therefore, we find Petitioner's personal financial information, which includes her tax returns and bank records are relevant to the issues of civil theft, conversion, breach of fiduciary duty, unjust enrichment, and the request for the imposition of a constructive trust where the complaint alleges Petitioner wrongfully obtained $200,000 from decedent.
A trustee is an indispensable party to proceedings affecting trust property. See In re Estate of Stisser, 932 So. 2d 400, 402 (Fla. 2d DCA 2006) (holding probate court did not have authority to rule on a matter involving a trust where it lacked personal jurisdiction over co-trustees of the trust).
A trustee is a separate party distinct from the individual person serving as a trustee. See Grasso v. Grasso, 143 So. 3d 1050 (Fla. 2d DCA 2014) (determining individuals were not parties to the action and therefore not liable as individuals where they were sued as purported trustees).
Here, because Petitioner, individually, was sued, she could never be liable in her trustee capacity based upon the allegations the decedent's daughter raised against her, individually. The trial court never acquired personal jurisdiction over Petitioner in her trustee capacity. Beekhuis v. Morris, 89 So. 3d 1114, 1116 (Fla. 4th DCA 2012) (concluding probate court never acquired personal jurisdiction over trustee where pleadings never alleged claim against the trust or trustee); In re Estate of Stisser, 932 So. 2d at 402. Second, there are no allegations in the complaint against the Trust, or Petitioner as trustee.
Absent any allegations in the complaint that Petitioner, individually, fraudulently transferred or otherwise converted the subject monies to Petitioner, as trustee or even simply to the Trust, the records are irrelevant and not reasonably calculated to lead to the discovery of admissible evidence.
Hett v. Barron-LundeTrusts & Estates
Light v. Kirkland, Case No. 1D19-20121st DCAJan 21, 2020Trial court incorrectly ordered modification after finding that parents could not "co-parent effectively" and were otherwise unable to "get along." An acrimonious relationship between parents or the lack of effective communication between them is no proper basis to find a substantial change in circumstances.Light v. KirklandParenting Plans
Claflin v. Claflin, Case No. 1D19-13701st DCAJan 21, 2020Philippine court declared 19-year marriage void under Philippine law. Florida court dissolved the marriage. Mom's prior marriage hadn't been annulled by a Philippine court before she married dad.
Mom said she'd never married the other man; denied dad's effort to dismiss Florida petition for dissolution of marriage. FL court said Philippines had to resolve the challenge... "kicking off years-long overseas legal odyssey."
Mom obtained Philippines judgment saying the marriage her family orchestrated against her will when she was 17 was a nullity.
Mr. Claflin argued that under Philippine law, the validity of the Mallari marriage was irrelevant to the legality of the subsequent marriage between the parties as no judicial declaration of its illegality was obtained prior to the solemnization of the subsequent marriage.
Issue: Whether the trial court erred in its determination that, under Philippine law, the parties' marriage is valid and therefore, subject to dissolution under Florida law.
Before enforcement of the foreign law or judgment in a dissolution proceeding, Florida courts are to review foreign law and ensure compliance with the rule of comity. See Section 61.0401(3), Fla. Stat. For application, the rule of comity has three requirements: 1) the parties were given adequate notice and opportunity to be heard; 2) the foreign court had jurisdiction; and, 3) that the judgment does not "offend the public policy of this state." Id.
In 2014, the Florida Legislature enacted section 61.0401 which codified the common law established by Florida courts to protect litigants in family-related matters under Florida Statutes Chapters 61 and 88 (relating to divorce, alimony, division of marital assets, child support, and child custody) from unfair foreign laws. The statute shields a party in Florida from being adversely affected by enforcement of a foreign law or judgment that does not provide the parties the fundamental liberties, rights, and privileges guaranteed by Florida law. See In re Estate of Nicole Santos, 648 So. 2d 277, 282 (Fla. 4th DCA 1995).
Section 61.0401 instructs Florida courts not to effectuate foreign law or court judgments during a dissolution proceeding in certain circumstances. Specifically, section 61.0401(4) provides that "any attempt to apply the law of a foreign country is void if it contravenes the strong public policy of this state or if the law is unjust or unreasonable."
Sumlin v. Sumlin, Case No. 5D18-27015th DCAJan 10, 2020Remand for the trial court to consider the tax consequences of the former husband's retirement account and to account for the full marital portion of the former wife's 401(k) withdrawal.
Trial judge considered tax consequences applicable to wife's pension & 401(k) but not those related to husband's Merrill Lynch retirement account.
Former wife withdrew funds from her 401(k) early to make a downpayment on her home & pay penalties & taxes for early withdrawal.
The court incorrectly credited her with half, rather than all, the marital portion she used for herself.
SumlinEquitable Distribution
Office v. Office, Case Nos. 4D18-2910 & 4D19-497 4th DCAJan 08, 2020Reverses order awarding wife attorney fees and remands for trial court to clarify the basis for award. Was it based on the former wife's need for fees? If the award was for inequitable conduct, the court must list specific fact findings to support conclusion husband engaged in such conduct. Cites Bitterman, 714 So. 2d 356 (Fla. 1998).OfficeAttorney Fees
ADVISORY OPINION TO THE ATTORNEY GENERAL RE: RAISING FLORIDA'S MINIMUM WAGE, 285 So. 3d 1273Supreme Court of FloridaDec 19, 2019Approves placing on the ballot a proposed amendment to article X, section 24 of the Florida Constitution to increase Florida's minimum wage from $6.15/hour to $10/hour effective 09/30/2021, then each September 30 after by $1/hour until the minimum wage reaches $15/hour by September 30, 2026.Minimum Wage Advisory OpinionAlimony
Santiago v. Leon, 3D19-00113d DCAJan 02, 2020Same sex ex-couple. Court reverses permanent stalking injunction against Santiago in favor of ML (a child). Father didn't also seek injunction on his own behalf.
Puerto Rican resident (Santiago) & child's dad had long-distance relationship, but never lived together. ML was born through a surrogate. Santiago's name not on birth certificate, but he said he signed an agreement to adopt the child no court ever ratified.
When child was 1 ½, relationship ended. Father's petition alleged Santiago (1) got tattoo of child's name; (2) posted pics of boy on FB & Instagram, (3) sent boy packages, (4) email father to express love for child; (5) contacted surrogate for info about child; (6) appeared once outside father's & child's home; (7) drove by restaurant & made eye contact with father & child while they were there.
Court discusses "stalking" definitions under 784.048. NO STALKING took place. 784.0485(1), Florida Statutes. Santiago did not "follow" "harass" or "cyberstalk" the child. It's not enough conduct may be "creepy" "complained of conduct must meet statutory definitions.
In the context of a stalking injunction, "follows" means to tail, shadow, or pursue someone. "Harass" is a course of conduct directed at a specific person that causes substantial emotional distress to that person. The alleged conduct wasn't directed at the child, who wasn't even aware of it! Even if the conduct had been directed at the child & he knew about it, it didn't constitute "harassing." Further, no evidence supported a finding Santiago's conduct was "malicious" as Section 784.048(2) requires.
In the context of a stalking injunction, "cyberstalks" is a course of conduct to communicate or cause to be communicated words, images, language through email or electronic communication directed at a specific person causing substantial emotional distress to that person and serving no legitimate purpose. Section 784.048(1)(d).
"Course of conduct" is a pattern of acts over time that evidences a continuity of purpose. Section 784.048(1)(b).
Numerous postings of comments and pictures to his online social media accounts may have referenced the child, either overtly or covertly, such conduct is insufficient to constitute "cyberstalking." Rather, Florida case law has mandated that threats via social media be directed to the individual not by content, but by delivery to fall within the purview of section 784.0485. Logue v. Book, 44 Fla. L. Weekly D2083, 2019 WL 3807987, at *4 (Fla. 4th DCA Aug. 14, 2019) (emphasis added). Because social media posts are generally delivered to the world at large, the Florida appellate courts have interpreted a course of conduct directed at a specific person [in section 784.048(1)(d)] to exempt social media messages from qualifying as the type of conduct covered by section 784.0485, Florida Statutes. Id. at *3.
Not cyberstalking:
Posting to one's own FB account (Horowitz v. Horowitz, 160 So. 3d 530, 531 (Fla. 2d DCA 2015))
Sending derogatory emails to 2,200 members of professional organization (Scott v. Blum, 191 So. 3d 502, 504 (Fla. 2d DCA 2016))
Repeated blog posts publicly criticizing the petitioner's business and the petitioner, individually, Chevaldina v. R.K./FL Mgmt., Inc., 133 So. 3d 1086, 1091-92 (Fla. 3d DCA 2014) (maybe defamatory, but not cyberstalking).
Santiago v. LeonDomestic Violence
Cura v. Cura, Case No. 3D18-11263d DCAJan 02, 2020Reverses retroactive alimony award. After 17 years of marriage, mom & 3 kids move from luxury in Miami-Dade to Palm Beach home. Once lived lavishly: luxury cars, exotic vacations, fancy jewelry, private school, gold & silver bars.
Before the Curas parted, he conveyed property to his mom, liquidated investments including overseas holdings, encumbered property held in trust w/ a mortgage for the benefit of a confidant couldn't explain what happened to proceeds from the transactions.
H claims 100% dependency on his Palm Beach mother, lacked a job or money. W counters he still traveled, took private flight lessons, kept luxury collections, got gifts from mother-in-law, intentionally was unemployed to circumvent obligations to his family, & squandered $ on his love interest.
After W's mother-in-law confiscated W's car, she hocked her things to pay for a lawyer & sought advances from her boss to secure housing. In the appeal, she represented herself.
Judge believed W, rejected H's testimony about not finding a job as 'patently unreasonable,' & awarded temporary alimony & child support, retroactive to parties' separation.
What did the trial judge do wrong? Court failed to make findings on (1) W's historical needs from the retroactive date through the date of the award & (2) H's ability to pay during that time period. Appellate court remands this 2016 case. More fees, more delay.
Stover v. Stover, 287 So. 3d 12772d DCAJan 03, 2020Mom seeks domestic violence injunction & asks that dad have supervised visitation, yet judge awards mom 100% temporary timesharing w/ kids, saying he'll deal with the issues later. DV injunction expires. Judge loses jurisdiction to fix erroneous timesharing award.StoverFamily Law Procedure
Schutt v. Schutt, No. 1D17-30221st DCADec 23, 2019Trial court abused discretion to award no attorney's fees to the former wife. "Where the parties' income disparity is substantial, a trial court abuses its discretion by denying a request for attorney's fees and costs. Earning two and [one half times] more than one's former spouse constitutes a substantial income disparity."
Martin v. Martin, 959 So. 2d 803, 805 (Fla. 1st DCA 2007); Kelly v. Kelly, 491 So. 2d 330, 330 (Fla. 1st DCA 1986) (finding that 'trial court should have awarded her an attorney's fee' because the former wife had a substantially smaller income than the former husband, modest liquid assets, and would be in a far worse financial position than the former husband should she have to pay her own fees).
Schutt Attorney Fees
Hutchison v. Hutchison, 287 So.3d 6951st DCADec 27, 2019Summarizes Florida's standards for modification of timesharing.
To be entitled to modification of timesharing, the moving party "must show (1) circumstances have substantially and materially changed since the original custody determination, (2) the change was not reasonably contemplated by the parties, and (3) the child's best interests justify changing custody." Korkmaz v. Korkmaz, 200 So. 3d 263, 265 (Fla. 1st DCA 2016) (quoting Reed v. Reed, 182 So. 3d 837, 840 (Fla. 4th DCA 2016)).
This required proof imposes an "extraordinary burden" on the party seeking modification. Ragle v. Ragle, 82 So. 3d 109, 111 (Fla. 1st DCA 2011) (quoting Boykin v. Boykin, 843 So. 2d 317, 320 (Fla. 1st DCA 2003)). "Practically speaking, this means that the parent requesting the modification must establish more than 'an acrimonious relationship and a lack of effective communication in order to show a substantial change of circumstances.'" Korkmaz, 200 So. 3d at 266 (quoting Sanchez v. Hernandez, 45 So. 3d 57, 62 (Fla. 4th DCA 2010)). Nor will relocation of one parent, by itself, always constitute a change in circumstances. See Ogilvie v. Ogilvie, 954 So. 2d 698, 701 (Fla. 1st DCA 2007); Ragle, 82 So. 3d at 112.
Dad alleged mom had limited the time he spent with his son, changed the child's school without notifying him, and had moved several times. But these circumstances don't prove a substantial change in circumstances.
The parties' varied voluntary timesharing schedule, mom's local moves, and child's change of schools didn't establish a substantial change in circumstances sufficient to support a modification of the previous final judgment.
Hutchison Parenting Plans
Nangle v. Nangle, 286 So. 3d 3774th DCADec 18, 2019When payments company paid to redeem Former Husband's stock ended, he, now 78, moved to terminate alimony to now 59-year old FW.
No facts demonstrated the trial court, in determining alimony initially, contemplated the redemption payments to FH for his stock would end.
A trial court can't require a spouse to borrow to pay alimony. Galligar v. Galligar, 77 So. 3d 808, 811 (Fla. 1st DCA 2011). While a court may consider the spouse's assets in determining his or her ability to pay, it can't require the spouse to deplete assets to make alimony payments. Id. at 812.
On remand, the trial court must consider need for & ability to pay alimony. What was former husband's ability to pay? Had former wife's financial status changed? Court needed to address former husband's decreased income, assets, or monthly deficit. and former wife's increased income, increased assets, and decreased debt.
Nangle Alimony
Suess v. Suess, Case No. 2D18-25212d DCADec 20, 2019The trial court erred in its interpretation of the MSA by limiting Former Wife's entitlement to Former Husband's retirement benefits and in its statutory interpretation determining she could not be designated the death beneficiary under the Florida Retirement System Act.
29-year marriage. Uncontested divorce wrapped up in 60 days.
Parties agreed FW would get 50% of 3 of FH's retirement accounts (City of Ocala, Ocala Police, State of Florida) and she'd remain the death beneficiary on them.
After FH remarried, FW sought to enforce the MSA and entry of a qualified domestic relations order (QDRO) to formalize dividing FH's Ocala Policy & Florida Retirement System pension accounts.
FW argued: Under MSA, she was entitled to 50% of ALL FH's retirement benefits that accrued during and after the marriage and she should stay death beneficiary on his retirement accounts.
FH argued FW was only entitled to 50% of his retirement benefits that accrued during the marriage.
The parties' marital settlement agreement stated no cutoff date for FW's entitlement to half FH's retirement accounts.
FH argued FW couldn't be named death beneficiary because the FRS Pension Act doesn't recognize a "death beneficiary" and allows only for designating a "survivor beneficiary," who could be a current spouse only.
Trial court sided with FH's positions. Appellate court reversed. Court agrees the trial court's interpretation of the MSA and its reliance on section 61.075(7) to limit FW's entitlement to only 50% of the FRS Pension benefits that accrued during the marriage was error.
Marital settlement agreements are construed the same as any other contract. Taylor v. Lutz, 134 So. 3d 1146, 1148 (Fla. 1st DCA 2014). It is well-settled that parties to a dissolution of marriage proceeding "may enter into settlement agreements imposing obligations the trial court could not otherwise impose under the applicable statutes." Herbst v. Herbst, 153 So. 3d 290, 292 (Fla. 2d DCA 2014) (citing Taylor, 134 So. 3d at 1148)). "[And it is the] well-established policy in Florida that settlement agreements are highly favored in the law." Chovan v. Chovan, 90 So. 3d 898, 900-01 (Fla. 4th DCA 2012) (alteration in original) (quoting Griffith v. Griffith, 860 So. 2d 1069, 1073 (Fla. 1st DCA 2003)).
"Where an agreement's terms are unambiguous, a court must treat the written instrument as evidence of the agreement's meaning and the parties' intention." Avellone v. Avellone, 951 So. 2d 80, 83 (Fla. 1st DCA 2007) (citing Delissio v. Delissio, 821 So. 2d 350, 353 (Fla. 1st DCA 2002)). It follows that "the contracting parties are bound by those terms, and a court is powerless to rewrite the contract to make it more reasonable or advantageous for one of the contracting parties." Emergency Assocs. of Tampa, P.A. v. Sassano, 664 So. 2d 1000, 1003 (Fla. 2d DCA 1995); see also Bay Mgmt., Inc. v. Beau Monde, Inc., 366 So. 2d 788, 791 (Fla. 2d DCA 1978) ("When a contract is clear and unambiguous . . . the court cannot give it any meaning beyond that expressed.").
The trial court reached outside the MSA to inject the statutory cut-off date for marital assets under 61.075(7), but the parties contemplated and included no cut-off date.
FH could not sidestep his failure to include a cutoff provision in the MSA by arguing this omission rendered an unambiguous agreement ambiguous.
See Ferguson v. Ferguson, 54 So. 3d 553, 556-57 (Fla. 3d DCA 2011) ("[T]he former husband cannot sidestep the consequence of his failure to include such a provision with the argument that the lack of such provision renders this otherwise unambiguous agreement ambiguous.") (citing Life Ins. Co. of N. Am. v. Cichowlas, 659 So. 2d 1333, 1338 (Fla. 4th DCA 1995) ("[W]here a contract is simply silent as to a particular matter, that is, its language neither expressly nor by reasonable implication indicates that the parties intended to contract with respect to the matter, the court should not, under the guise of construction, impose contractual rights and duties on the parties which they themselves omitted.")).
The sentence immediately following "Additionally, she will remain the death beneficiary on each of these retirement accounts" evidences the parties' intention to not limit the FW's entitlement to FH's retirement accounts.
The FRS Act provides for death benefits and survivor benefits, but doesn't use the terms "death beneficiary" or "survivor beneficiary."
The Act and corresponding administrative rules (60S-4.011(4)(b) and (e) allow the member to designate someone other than the member's current spouse as beneficiary of the member's retirement account.
Suess Marital Settlement Agreements
De Hoyos v. Bauerfeind, 286 So. 3d 9001st DCADec 16, 2019Trial court erred by relying on inadmissible child hearsay statements to his therapist and mom to support a domestic violence injunction against dad.
An out-of-court statement is not generally admissible, but an out-of-court statement made by a child victim describing an act of child abuse against the child is admissible as long as the source of information is trustworthy and:
1. The court finds in a hearing conducted outside the presence of the jury that the time, content, and circumstances of the statement provide sufficient safeguards of reliability. In making its determination, the court may consider the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, the reliability of the child victim, and any other factor deemed appropriate; and
2. The child either: a. Testifies; or b. Is unavailable as a witness, provided that there is other corroborative evidence of the abuse or offense.
Unavailability shall include a finding by the court that the child's participation in the trial or proceeding would result in a substantial likelihood of severe emotional or mental harm, in addition to findings pursuant to s. 90.804(1). Section 90.803(23), Fla. Stat.
Child hearsay statements are admissible as substantive evidence when the statements satisfy a strict standard of reliability and corroboration. State v. Townsend, 635 So. 2d 949, 954 (Fla.1994). This strict standard for admissibility is necessary to balance the need for reliable out-of-court statements of child abuse victims against the confrontation and due process rights of those accused of child abuse. Id. at 953.
Before admitting a child hearsay statement, a trial court must determine: whether the hearsay statement is reliable and from a trustworthy source without regard to corroborating evidence. If the answer is yes, then the trial judge must determine whether other corroborating evidence is present. If the answer to either question is no, then the hearsay statements are inadmissible. Id. at 957.
Waiver of the therapist patient privilege did not obviate the need for the trial court to determine whether the child's statements to the therapist were admissible under section 90.803(23).
Unlike the sexual violence injunction statute, the domestic violence injunction statute contains no language suggesting that child hearsay statements in a sworn petition filed by a parent (against either another parent or a nonparent) can support an injunction.
De Hoyos v. BauerfeindFamily Law Procedure
In Re: Amendments to the Florida Rules of Judicial Administration - Parental Leave, 288 So. 3d 512 Supreme Court of FloridaDec 19, 2019Florida Supreme Court adopts new parental leave rule - Florida Rule of Judicial Administration 2.570, effective January 1, 2020. With some exceptions (criminal, juvenile, involuntary civil commitment of sexually violent predator cases), a court must grant a timely motion for continuance because of parental leave of the movant's lead attorney, for birth or adoption of a child. Movant must make motion within a reasonable time after the later of (a) movant's attorney learns of the basis for the continuance or (b) the setting of proceedings or (c) the scheduling of a matters for which the movant seeks continuance. Maximum continuance: 3 months.Parental Leave ContinuanceFamily Law Procedure
In Re: Amendments to Florida Rule of Judicial Administration 2.240, 285 So. 3d 931Supreme Court of FloridaDec 12, 2019Florida courts' jurisdictional amount limits change.
Section 34.01, Florida Statutes
Circuit: $30,000.01
County: $8,000.01 - $30,000
Small Claims: $8,000
Florida Courts Jurisdictional LimitsJurisdiction
Pauline Walters, as personal representative of The Estate of Enid May Townsend v. Agency for Health Care Administration, 288 So. 3d 1215 3d DCADec 04, 2019Decedent's sole asset was her interest in a cooperative apartment in North Miami Beach.
The Florida constitution protects Florida homesteads in 3 ways.
1. One clause provides homesteads with an exemption from taxes.
2. The homestead provision protects the homestead from forced sale by creditors.
3. The homestead provision delineates the restrictions a homestead owner faces when attempting to alienate or devise the homestead property. Snyder v. Davis, 699 So. 2d 999, 1001-02 (Fla. 1997).
The Florida Supreme Court (in Wartels), and 3d DCA (in Hirshon), held that a cooperative apartment can't be considered homestead property for the purpose of descent and devise because it doesn't constitute "an interest in realty." See Wartels, 357 So. 2d at 711 (holding "a cooperative apartment may not be considered homestead property for the purpose of subjecting it to Florida Statutes regulating the descent of homestead property"); Hirshon, 958 So. 2d at 430 (adhering to Wartels while questioning its continued vitality in light of statutory changes to the law of cooperative apartments).
Third DCA concludes that the instant case is not a forced sale but, as in Wartels and Hirshon, falls within the devise and descent category.
Third DCA adheres to the Florida Supreme Court's decision in Wartels, and to its own decision in Hirshon, and affirms the trial court's denial of petition to declare the cooperative stock to be homestead property.
The court recognizes, under circumstances similar to the instant case, the Second District, in Geraci v. Sunstar EMS, 93 So. 3d 384 (Fla. 2d DCA 2012), held that the homestead protection at issue was a forced sale rather than a devise and descent, and held that the decedent's condominium was homestead property for purposes of the exemption from forced sale even though it did not constitute a fee simple interest in land.
Third DCA certifies conflict with Geraci and also certifies, as a question of great public importance, the same question it certified in Hirshon:
Walters v. Agency for Health Care AdminHomestead
In Re: Amendments to the Florida Supreme Court Approved Family Law Forms 12.948(a) & (e), Case No. SC19-1897 Supreme Court of FloridaDec 05, 2019New Florida Family Law Forms 12.948 (a) - (e) for granting temporary custody during deployment.
In 2018, the Legislature adopted the Uniform Deployed Parents Custody and Visitation Act which addresses issues of child custody and visitation arising when a parent deploys for military or other national service. See Ch. 2018-69, Laws of Fla. Five new forms are created to implement the Uniform Act, which is codified as Part IV of Chapter 61, Florida Statutes (2018).
Access & download from the Florida State Courts' website at Family Law Forms
Temporary Custody During Deployment of ParentFamily Law Procedure
In Re: Amendments to the Florida Family Law Rules of Procedure - Forms 12.996(a) and 12.996(d), 285 So. 3d 258Supreme Court of FloridaDec 05, 2019New Florida Income Deduction Order (IDO) Florida Family Law Form 12.996(a) - SC18-1908! Clears up confusion about existing federal and Florida IDOs and notices. Use amended form in both Title IV-D and non-Title IV-D cases.
For income deduction for child support, the federal government, under sections 466(a)(1), (a)(8) and 466 (b)(6)(A)(ii) of the Social Security Act, requires that states use an Income Withholding Order (IWO) for the deduction of child support
In child support cases, attach the federal Income Withholding for Support Form (IWO) as a notice to the IDO.
New Income Deduction Order form 12.996(a) adds options for all forms of alimony & child support that may be deducted.
Income Deduction Order Family Law Procedure
Bustamante v. O'Brien, 286 So. 3d 3521st DCANov 27, 2019Reverses order on Florida mom's motion for clarification that improperly amended a final judgment to require Colorado dad to arrange air travel for kids 60 days before his timesharing and said, if he didn't, he'd waive timesharing rights.
Parents couldn't agree on flights, prorating cost 70-30. Dad was a Major & pilot in US Army couldn't schedule travel 60 days ahead, because he didn't know where he'd be that far in the future.
Where terms of a final judgment are ambiguous as applied to facts developing after the judgment, [a] court may clarify what is implicit in [the] judgment, and enforce the judgment. Pomeranz v. Pomeranz, 961 So. 2d 1068, 1071 (Fla. 4th DCA 2007) (quoting Encarnacion v. Encarnacion, 877 So. 2d 960, 963 (Fla. 5th DCA 2004)).
A clarification seeks to make a judgment clearer and more precise, as opposed to a modification, which seeks to change the status quo and alter the rights and obligations of the parties. Roque v. Paskow, 812 So. 2d 500, 503 (Fla. 4th DCA 2002) (citing Fussell v. Fussell, 778 So. 2d 517, 518 (Fla. 1st DCA 2001), and Dickinson v. Dickinson, 746 So. 2d 1253, 1254 (Fla. 5th DCA 1999)).
The former wife argues that an order that more clearly defines provisions relating to specific time frames is a clarification of the final judgment and not a modification.
In Roque, the final judgment provided for the division of visitation during holidays but did not specify the times the children needed to be dropped off or picked up on those days. 812 So. 2d at 502. The trial court construed the term 'day' in the time-sharing plan to be 9:00 a.m. to 6:00 p.m. The Fourth District Court of Appeal affirmed that part of the trial court's order as merely clarifying the terms of the final judgment so that the judgment could be properly enforced as written. Id. at 503 (citing Fussell, 778 So. 2d at 518-19).
In Fussell, the final judgment stated, [w]hen the child is with one parent, the other parent shall have open and reasonable telephonic communication with the child. 778 So. 2d at 518. The trial court interpreted this provision to allow the former husband to call the child on Sundays between 7:00 p.m. and 8:00 p.m. and once during the week on a day and time agreed on by the parties. The court also placed no restrictions on the child calling the former husband. Id. The 1st District affirmed, holding that the trial court did not modify, but rather interpreted and clarified the final judgment's telephonic visitation provision. Id.
The former wife also argues that an order that more precisely enumerates the method or procedure for compliance with a final judgment merely clarifies the judgment and does not modify it. For support, she cites Gerber v. Gerber, 153 So. 3d 304 (Fla. 2d DCA 2014). The provision of the final judgment at issue in that case required that each party share in reasonable and necessary medical expenses for the children and that each party pay directly or reimburse the other their portion of said expenses or object to same . . . within fifteen (15) days of the receipt of such notice. 153 So. 3d at 306.
The former wife filed a motion for contempt alleging that the former husband had not paid his share of medical expenses as required by the judgment. Id. The former husband contended the expenses were unreasonable. In interpreting the final judgment, the trial court construed the relevant provisions to require that if the former husband had an objection to any of the medical expenses, he still had to pay for the treatment within the designated time and then seek an order requiring the former wife to reimburse him, provided he could show that the medical expenditure was unreasonable or unnecessary. Id. On appeal, the Second District Court of Appeal rejected the former husband's argument that the trial court effectively modified the final judgment. Instead, it held that clarification was appropriate because the underlying provisions did not specifically enumerate the procedure for objections. Citing Roque, the court determined that the former wife did not receive a new benefit from the trial court's interpretation of the final judgment but merely a more precisely enumerated method of recovering medical expenditures.
Unlike the clarification of pick-up times in Roque and 'reasonable' telephonic communication in Fussell, the 60-day notice provision and its associated obligations constitute more than a mere specification of a time frame. These provisions are also more than just a method or procedure for compliance. The original transportation plan did not require the former husband (or the former wife) to do anything besides 'confer regarding airplane tickets' and 'mutually agree prior to booking said tickets.'
The amended plan essentially shifts the burden to the former husband to negotiate and book the flight arrangements and do so at least 60 days before travel. This is an impermissible modification of the final judgment because it confers a new benefit on the former wife, while imposing a new and material burden on the former husband due to his obligations in the United States Army.
Bustamante v. O'BrienParenting Plans
Kozel v. Kozel, Case No. 2D15-43642d DCANov 27, 2019What is trial court's continuing jurisdiction after final judgment to enforce a marital settlement agreement?
Former Husband agreed to transfer stock to former wife & give her information about cost basis she needed for taxes. He delivered stock late, gave her wrong tax info. FW sues for money damages, alleging breach of contract. Court finds FH breached contract, awards FW $34 million damage for failure to deliver stock on time; $3.85 million for failing to provide tax info.
A trial court's continuing jurisdiction to enforce a settlement agreement generally includes no jurisdiction to award damages for breach the agreement doesn't specify. The agreement didn't specify damages former wife sought and the court awarded.
Long term marriage. FH was CEO of Gulf Keystone Petroleum. Most of couple's wealth was in company stock. Savvy parties with good lawyers documented in property settlement agreement their deal, under which, in 2 weeks, Former Husband had to transfer 23 million shares to Former Wife.
Marital settlement agreement provided, for default, interest + enforceable by contempt "and any other remedy at law or in equity."
Further provided for "a money judgment" under Madison Fund rule for lost benefit of the bargain. Under that methodology, refer to potentially reasonable transactions in which she could have sold the stock had it been timely delivered and the prices and quantities at which she could have made those transactions. Expert opined she'd suffered benefit-of-the-bargain damages of $19.6 million and $45.2 million.
Madison Fund, Inc. v. The Charter Co., 427 F. Supp. 597 (S.D.N.Y. 1977)
The leading case on the scope of a trial court's continuing jurisdiction to enforce a settlement agreement is the supreme court's decision in Paulucci v. General Dynamics Corp., 842 So. 2d 797, 803 (Fla. 2003).
Any action for damages would have to have been instituted as a separate civil action, not included in the family court's continuing jurisdiction to enforce a settlement agreement that doesn't provide for damages.
KozelMarital Settlement Agreements
Burns v. Cole, 285 So. 3d 9941st DCANov 26, 2019Trial court incorrectly ruled former wife (real estate agent) had no obligations on a loan ex-husband's mom made during the marriage to help couple buy investment property. FW says mother-in-law made a gift. FW, who managed joint bank account, made monthly payments under written promissory note. Burns v. ColeEquitable Distribution
Dlin v. Dlin, 283 So. 3d 9853d DCANov 20, 2019Reverses order denying motion to dismiss dissolution petition ex wife filed in wrong venue (Miami-Dade County). Lower court must transfer case to Volusia County.
Venue is proper where the defendant is domiciled, where the cause of action accrued, or where the property in litigation is located. Section 47.011, Fla. Stat. (2018). 'In a dissolution of marriage action, the trial court is to look to the single county where the intact marriage was last evidenced by a continuing union of partners who intended to remain and to remain married, indefinitely if not permanently.' Crawford v. Crawford, 415 So. 2d 870, 870 (Fla. 1st DCA 1982) (citing Carroll v. Carroll, 341 So. 2d 771, 772 (Fla. 1977)). Here, the parties have filed competing petitions for dissolution in different counties, at different times, and with different procedural outcomes. There are an abundance of cases in Florida, however, holding that a cause of action for dissolution accrues, for purposes of applying the venue statute, in the single county where the parties last lived together with a common intent to remain married. See, e.g. Bowman v. Bowman, 597 So. 2d 399 (Fla. 1st DCA 1992). This is true even when one spouse moves to another county to escape the marriage, the situation presented in the facts before us. See Hoskins v. Hoskins, 363 So. 2d 179, 181 (Fla. 4th DCA 1978) (holding that the last place where the parties resided together was Polk County and under the holding in Carroll, venue should be in Polk County, despite the wife having moved to live in another county); see also Butler v. Butler, 866 So. 2d 1280, 1281 (Fla 4th DCA. 2004) (holding that, since the parties last resided together with the intent to be married in Brevard County as the last place where an intact marriage existed, then wife is not entitled to elect to file in Broward County simply based on her statement of intent which is contrary to the manifest weight of the undisputed evidence that Brevard County was their 'home'). At the time the Wife filed her dissolution petition in Miami-Dade County, venue for dissolution purposes was proper in Volusia County, where the parties were last domiciled together, albeit for three months, and where the Husband currently remains. When the Husband filed his dissolution petition, venue was proper in Volusia County pursuant to the venue statute. It does not matter for application of the venue statute that the Wife moved to Miami-Dade to escape domestic violence.
DlinFamily Law Procedure
Hicks v. Hicks, 284 So. 3d 5764th DCANov 20, 2019Reverses trial court order requiring guardian to pay attorney fees & forensic accountant fees for failing to file guardianship report. Son was his mom's guardian.
Court failed: to (1) make finding of 'bad faith,' (2) link the 'bad faith' conduct to the attorney's fees incurred by the opposing party, and (3) take testimony and make findings as to the reasonable hours and hourly rate of the opposing party's counsel. As to the award of accounting fees, the Court affirms, finding the former guardian's appeal on the issue to be without merit. Finally, Court reverses the order requiring incarceration if the purge amount is not paid because the trial court failed to make the requisite finding of present ability to pay.
Agrees with guardian's argument: the trial court erred in awarding attorney's fees because it failed to make a specific finding of 'bad faith' and failed to show that the attorney's fees were related to that 'bad faith' conduct. The guardian further argues that the trial court failed to take any expert testimony or make any findings as to the reasonable number of hours and hourly rate.
A trial judge's decision to impose sanctions for bad faith litigation conduct is reviewed under an abuse of discretion standard. Bennett v. Berges, 50 So. 3d 1154, 1159 (Fla. 4th DCA 2010). [A]n award of attorney's fees must be supported by substantial competent evidence and contain express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved. Mitchell v. Mitchell, 94 So. 3d 706, 707 (Fla. 4th DCA 2012). A trial court possesses inherent authority to award attorney's fees and costs for bad faith conduct against a party. Moakley v. Smallwood, 826 So. 2d 221, 224 (Fla. 2002). This inherent authority, known as the inequitable conduct doctrine, 'is reserved for those extreme cases where a party acts in bad faith, vexatiously, wantonly, or for oppressive reasons.' Id. (citations and quotation marks omitted). However, any such award by the trial court 'must be based upon an express finding of bad faith conduct and must be supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys' fees.' Id. at 227; see also Ochalek v. Rivera, 232 So. 3d 1050, 1053 (Fla. 4th DCA 2017) (reversing and remanding for further proceedings because 'the trial court failed to make an express finding of bad faith conduct'). Although the magic words 'bad faith' are not necessary, the trial court must use equivalent language to describe the sanctionable conduct. See Robinson v. Ward, 203 So. 3d 984, 990 (Fla. 2d DCA 2016) (affirming award of attorney's fees as a sanction where the trial court set forth a list of eight instances of improper conduct and specifically concluded that defense counsel's actions were improper and deliberate, had resulted in a miscarriage of justice, and had solely and directly caused [appellee] to incur additional time and expense of relitigating a trial).
HicksAttorney Fees
Forest v. Estate of Kohl, 286 So. 3d 2844th DCANov 20, 2019Ex-wife sought to prevent postjudgment collection against her. She argued marital settlement agreement fully resolved their disputes. She agreed to pay $60,000 for her ex husbands' broad release of all claims against her attorney arising from Martin County (13-1193-CA) & Indian River County (43:2009DR0083) cases, in which he sought sanctions against her and her attorneys.
Court agrees. See Dufour v. Damiani, 231 So. 3d 486, 488 (Fla. 4th DCA 2017) ([A]s with any contract, a marital settlement agreement is construed as a matter of law. As such, this court is on equal footing with the trial court as interpreter of the written document. Therefore, if a trial court's ruling is based on the interpretation of a settlement agreement, then it is a decision of law reviewable de novo.)
Forest v. Estate of KohlMarital Settlement Agreements
Schroll v. Schroll, 283 So. 3d 9661st DCANov 13, 2019Permanent alimony award reversed. Trial court failed to address investment income from accounts #alimony recipient received in #equitable distribution. See also Acker v. Acker, 904 So. 2d 384, 388 (Fla. 2005) (income from equitably distributed pension properly considered in determination of ability to pay alimony); Adelberg v. Adelberg, 142 So. 3d 895, 899 (Fla. 4th DCA 2014) (rate of return on retirement funds and interest accrued in non-marital bank accounts should be included in calculating former spouse's total income for purposes of alimony determination).
If reported income lacks credibility, the court may impute income based on historical payment of expenses, lack of debt to allow such payment to continue, and lack of evidence payments would require liquidation of capital assets. See Moody v. Newton, 264 So. 3d 292, 294-95 (Fla. 5th DCA 2019) (affirming income imputed to self-employed former spouse where business records failed to reflect true net income).
Schroll Alimony
Suarez v. Suarez, 284 So.3d 1083 4th DCANov 13, 2019The former husband appeals an order terminating alimony, recalculating child support, and modifying time-sharing. He argues the trial court erred in: (1) terminating alimony because the evidence did not support that decision and the court did not make the statutorily-required findings; (2) applying the gross-up method to calculate child support; and (3) modifying time-sharing.
In support of the modification, the former wife testified that a decline in her title business resulted in decreased income, causing her to downsize from seven employees to one. The title company relied on short sales. The former wife claimed rising property values caused a decrease in the number of short sales and a 75% reduction in earnings from each sale. She testified that her major client, responsible for about 85% of the title company's business, opened its own title division and stopped using her company's services. She claimed her efforts to maintain the business were also hindered by marketing regulations implemented shortly before the MSA, and trade regulations implemented shortly after. Her marketing efforts were limited to hosting luncheons and teaching a class. The impact of the title business' decline and the collapse of another business was substantiated by the former wife's tax returns and income estimates. She testified her title business' annual income declined almost 60%. This caused a significant decline in her annual income. The former wife admitted this decline did not include personal expenses she ran through her title business. Although the MSA provided for equal timesharing, that never occurred.
Suarez Alimony
Vergne v. Glidewell, 284 So. 3d 5734th DCANov 13, 2019Under MSA, trial court allocated marital home to both parties. Lived together post-divorce until wife had husband leave. He moved for partition. Court ordered W to pay 100% of H's attorney fees.
Under Section 64.081 Florida Statutes court should've allocated attorney fees proportional to each party's interest in the property. W should pay only 50% of H's fees and costs incurred in partitioning property.
Vergne v. Glidewell Marital Settlement Agreements
Yon v. Yon, 286 So.3d 3221st DCANov 05, 2019Trial court's herculean efforts to come up with fair equitable distribution scheme failed because it used the wrong cut-off date for determining if assets were marital or nonmarital.
Cisco account manager; retired pharmacist. Unless the parties agree in writing otherwise, the date of separation is NOT the date for determining if an asset or liability is nonmarital.
An intact marriage is not the standard for determining if assets are marital.
The date for IDENTIFICATION of the character of an asset or liability as marital or nonmarital is the earlier of (1) date of filing a petition for dissolution of marriage OR the date parties enter into a valid separation agreement or (3) such other date as may be expressly established by such agreement. Section 61.075(7), Florida Statutes.
Only after the trial court completes step 1 - identifying if assets and liabilities are marital or nonmarital & can the court exercise discretion to determine the value of the marital assets as the court determines is just and equitable under the circumstances.
Revocable trust - switching assets from 1 investment company to another during the marriage doesn't transform nonmarital assets to marital & it's just transferring management of an existing asset or exchanging 1 asset for another.
But the couple had $250,000 marital funds wired to the nonmarital investment account. It sat there for 3+ months. Once commingled, the $250,000 became marital.
Court follows Dravis v. Dravis, 170 So. 3d 849 (Fla. 2d DCA 2015).
Nonmarital assets may lose their nonmarital character and become marital assets where, as here, they have been commingled with marital assets. Abdnour v. Abdnour, 19 So. 3d 357, 364 (Fla. 2d DCA 2009). This is especially true with respect to money because '[m]oney is fungible, and once commingled it loses its separate character.' Pfrengle v. Pfrengle, 976 So. 2d 1134, 1136 (Fla. 2d DCA 2008); see also Belmont v. Belmont, 761 So. 2d 406, 408 (Fla. 2d DCA 2000) ("Money loses its nonmarital character when it is commingled with marital money. . . .").
Deposit of the funds does not necessarily make the entire account marital. The account holder must meet his burden of proof to establish what portion of the account remains nonmarital.
#prenuptial #equitabledistribution #nonmarital
Yon Equitable Distribution
Yon v. Yon, 286 So.3d 3221st DCANov 05, 2019Beach property former husband owned before the marriage: the court made no findings re marital funds used to pay mortgage debt, value of the property and the mortgage debt on the date of marriage and on the date of the filing of the petition for dissolution of marriage. When marital assets are used during the marriage to reduce the mortgage on non-marital property, the increase in equity is a marital asset subject to equitable distribution.
Section 61.075(6), Florida Statutes (2018) replaces Kaaa v. Kaaa, 58 So.3d 867 (Fla. 2010) formula! For a calculator to help #collaborativedivorce teams consider possible marital components of nonmarital real property, See Sampson Collaborative Law Nonmarital Real Property Calculator
Yon Equitable Distribution
Proposed Florida Family Law Collaborative Forms 12.985(a) - (g), Case No. SC19-1032Supreme Court of FloridaJun 21, 2019Proposed Florida Collaborative Family Law Process Forms for Dissolution of Marriage - Pending ReviewSummary of Proposed Collaborative Forms

Proposed Florida Collaborative Law Process Forms 12.985(a)-(g)
Collaborative Practice
Tsacrios v. Tsacrios, 282 So. 3d 10131st DCANov 06, 2019Student loan debt incurred during the marriage is marital. See Section 61.075(8), Fla. Stat.; Rogers v. Rogers, 12 So. 3d 288, 291 (Fla. 2d DCA 2009)("[t]he fact that one party will not receive any benefit from the other party's education because of the dissolution is not a factor to be considered when allocating a marital debt for student loans."); Gudur v. Gudur, Case No. 2D16-3127 (2d DCA June 28, 2019) TsacriosEquitable Distribution
Johnson v. Johnson, 283 So. 3d 883 1st DCAOct 30, 2019Final judgment in 1998 awarded former wife a monetary interest (half the value of a deferred compensation plan as of the date of filing the petition for dissolution) and not an ownership interest in the plan. Ex-wife not entitled to accrued earnings on ex-husband's plan in the 20 years since entry of final judgment.Johnson Equitable Distribution
McFall v. Welsh, 282 So. 3d 888 5th DCAOct 25, 2019Grants certiorari to quash order compelling production to dad of an unredacted copy of joint tax return between mom & new husband, a nonparty to child support modification.
Mom provided to ex a copy of 2017 federal income tax return she filed jointly with her new husband, but redacted any information pertaining to his finances. Ex moved to compel production of an unredacted copy of tax return. Mom & new husband objected, asserting producing the unredacted copy would violate his privacy to his financial information in the tax return.
Absent dad's establishing an evidentiary basis to show the unredacted jointly-filed tax return containing new husband's financial information is relevant to the underlying child support modification action, the court order violates nonparty new husband's constitutional right of privacy under Article I, section 23, of the Florida Constitution.
Article I, section 23, of the Florida Constitution protects disclosure of financial information of private persons if there is no relevant or compelling reason to require disclosure, Rowe v. Rodriguez-Schmidt, 89 So. 3d 1101, 1103 (Fla. 2d DCA 2012) (quoting Borck v. Borck, 906 So. 2d 1209, 1211 (Fla. 4th DCA 2005)), because "personal finances are among those private matters kept secret by most people." Woodward v. Berkery, 714 So. 2d 1027, 1035 (Fla. 4th DCA 1998) (citing Winfield v. Div. of Pari-Mutuel Wagering, 477 So. 2d 544, 548 (Fla. 1985)); see also Mogul v. Mogul, 730 So. 2d 1287, 1290 (Fla. 5th DCA 1999) ("The financial information of private persons is entitled to protection by this state's constitutional right of privacy, if there is no relevant or compelling reason to compel disclosure.")
Unless dad could prove new husband's financial information is relevant to modification of child support litigation, he has the constitutional right to prevent disclosure of the his tax return jointly filed with mom.
The burden of proving a person's private financial information is relevant is on the party seeking the information. Spry v. Profl Empr Plans, 985 So. 2d 1187, 1188&89 (Fla. 1st DCA 2008).
McFall v. Welsh Child Support
Neighbors v. Neighbors, Case Nos. 1D18-3582 and 1D18-3789 1st DCAJan 23, 2020Dad & Mom enter into marital settlement agreement stating the parties would split equally all medical expenses not covered by dad's insurance, but, if either used a "non-approved provider" for care, that parent would be 100% responsible for expenses. Parties' daughter suffered from a serious medical malady. Mom takes her to a medical provider that informed mom it was a non-participating provider. Daughter recovered after treatment resulting in a $60,000 bill. Mom's family paid the bill up front, recovered some from dad's insurance company after treatment was completed.
Trial court found, because dad's insurance company reimbursed some expenses, the medical clinic as not a "non-approved provider" under the MSA, so dad had to pay half. But, insurance providers & HMOs routinely cover certain costs insured persons accrue from "non-network providers" after treatment has been completed and the insured has fronted the cost for the treatment.
There was no evidence dad's health insurance treated the clinic as an approved provider. There was no evidence dad consented in writing (as the MSA required) to daughter's treatment at the clinic. Mom had to pay all. As no longer the "prevailing party," mom was not entitled under the MSA to reasonable attorney fees and costs.
Neighbors Marital Settlement Agreements
Myers v. Lane, 283 So. 3d 3373d DCAOct 23, 2019Mom could modify child support. Dad's failure to exercise timesharing qualified as a substantial change in circumstances, retroactive to date the parent 1st failed to exercise regularly the court-ordered or agreed time-sharing schedule. Section 61.30(11)(c), Florida Statutes. Myers v. Lane Child Support
Hellard v. Siegmeister, Case No. 3D17-2175 3d DCAOct 23, 2019Marital settlement agreement parties signed before they reconciled didn't cover assets & liabilities they acquired after, when MSA was no longer in effect. Cox v. Cox, 659 So. 2d 1051 (Fla. 1995)Hellard v. Siegmeister Marital Settlement Agreements
Romaine v. Romaine, 291 So.3d 12715th DCAMar 13, 2020Mirror image rule. After 4 failed mediations, Former Wife marked up edits to ex-Husband's draft settlement proposal. Her 5 handwritten changes didn't mirror, thus were a rejection & counteroffer he didn't accept. No deal.
A marital settlement agreement is subject to the law of contracts. See Knowling v. Manavoglu, 73 So. 3d 301, 303 (Fla. 5th DCA 2011). "Like any contract, a settlement agreement is formed when there is mutual assent and a `meeting of the minds' between the parties "a condition that requires an offer and an acceptance supported by valid consideration." Pena v. Fox, 198 So. 3d 61, 63 (Fla. 2d DCA 2015). It is well-established that an acceptance must be a "mirror image" of the offer in all material respects. Trout v. Apicella, 78 So. 3d 681, 684 (Fla. 5th DCA 2012). If the offeree's acceptance does not mirror the offeror's proposal as to all essential terms, it is a counteroffer that rejects the original offer. Breger v. Robshaw Custom Homes, Inc., 264 So. 3d 1147, 1150 (Fla. 5th DCA 2019).
Romaine Marital Settlement Agreements
Weininger v. Weininger, Case No. 3D17-493d DCAOct 10, 2019Janet got $9 million from lawsuit that stemmed from capture & death of her father during the Bay of Pigs invasion. [Janet Ray Weininger, Executor v. Fidel Castro, Case No. 2003-022920-CA-01.
[When W was 6, her dad flew for CIA in Bay of Pigs, was shot down, later executed by Castros & Cuban army. She searched for years for answers. Her mom suffered psychologically. In her futile quest for answers, she spent her childhood alone & in pain. Eighteen years after her dad's death, Castro finally released dad's body to her in December 1979. Autopsy & affidavit established Castro officials would remove body from freezer & desecrate it. Under Foreign Services Immunity Act, she proved emotional distress or 'solatium' damages & the estate was entitled to $3.5 million economic damages + $50K pain & suffering + $65 million in punitive damages against foreign state's agencies & instrumentalities: Fidel & Raul Castro, & Army of Cuba.]. Court awarded W $18 million damages for solatiaum, pain, suffering & emotional distress.

W established Wings of Valor trust with $8 million, naming her 3 adult kids, their spouses, her grandkids, herself as beneficiaries.
W testified she can use the Trust distributions only for educational or medical expenses, but would have to repay the Trust for additional unrelated living expenses. Husband moves into TX apartment with mistress.
W argued Husband dissipated marital assets on his mistress & her son, causing Janet to exhaust her personal funds, said she should get permanent alimony. Husband argued W depleted her income to support their adult children & his forced retirement put both parties in the same financial position, eliminating the need for alimony.
Following a trial, the court found W financially able to meet her needs, and denied alimony. The court found H had not dissipated investment account during the divorce and his & Delta's contributions during the separation to retirement account were nonmarital.
H overcame rebuttable presumption that W should get permanent alimony in long-term marriage by presenting evidence W had significant income from Trust, would receive funds in equitable distribution, could work, & H lacked ability to pay because he was forced to retire.
W wanted to depose mistress; no error for trial court to deny deposition where W had detailed accounting of H's withdrawals from investment account.
Trial court properly found postfiling contributions by H to retirement account were nonmarital. 9 years of protracted divorce proceedings!
Weininger Alimony
Adeena Weiss Ortiz v. Caroline Weiss et. al., 282 So. 3d 9493d DCAOct 10, 2019Family dispute re property ownership in Coconut Grove, Florida between late Father's estate, Mother, 2 daughters.
Daughter had to file her claims in probate estate of dad, who died in 1995. The special statute of limitations that applies to probate claims barred those claims under 733.702 & 733.710, Florida Statutes.
18 years after dad dies, daughter #1 (a Florida lawyer) sues mom, late dad's estate, & trust of daughter #2 (her sister). Claims fraudulent transfer of property. Mom counterclaims for quiet title & slander of title.
Late dad (also a lawyer) titled property & 8 bayfront lots - in Florida corporation. No physical shares, no tax returns, no other documents supported daughter #1's claim to 25% shares.
Weiss Trusts & Estates
Daniel v. Daniel, 922 So. 2d 10414th DCAMar 08, 2006Financial affidavits are central to a court's doing justice in divorce cases. While evidence of a person's financial condition may be drawn from a multitude of documents, a financial affidavit is a party's formal, sworn position that reduces finances to a manageable chunk of information. The affidavit becomes "ground zero" for any request for post-judgment relief that comes before the court. A financial affidavit is filed for the benefit of the court and the opposing party in the dissolution. Decisions on whether and how to settle a case depend on full, honest financial disclosure. The financial affidavit is at the center of the system established by the Family Law Rules to resolve the issues that arise in family cases.
Full, honest financial disclosure is key to successful collaborative practice and collaborative divorce.
Daniel Family Law Procedure
Hess v. Hess, Case No. 2D18-3155 2d DCAOct 11, 2019Parties have a continuing duty to suppplement documents including financial affidavits for material changes in their financial status. Florida Family Law Rule of Procedure 12.285(f). Quotes at length from Daniel v. Daniel, 922 So. 2d 1041, 1045 (Fla. 4th DCA 2006). Hess Family Law Procedure
Oldham v. Greene, 263 So. 3d 8071st DCADec 27, 2018Pursuant to rule 12.360, a request for a psychological examination must be related to "a matter in controversy," and the party must have "good cause for the examination." Fla. Fam. L. R. P. 12.360(a)(1),(2). The requesting party has the burden to satisfy the "in controversy" and "good cause" prongs. Manubens v. Manubens, 198 So. 3d 1072, 1074 (Fla. 5th DCA 2016); see also Fla. Fam. L. R. P. 12.360(a)(1),(2). A court's failure to make any findings as to the requirements of rule 12.360 is a departure from the essential requirements of law. See Russenberger v. Russenberger, 623 So. 2d 1244, 1245-46 (Fla. 1st DCA 1993), affd 639 So. 2d 963 (Fla. 1994); Manubens, 198 So. 3d at 1074-75; cf. Wade v. Wade, 124 So. 3d 369, 375 (Fla. 3d DCA 2013) (explaining the complete failure to address a requirement "alone may be sufficient to overturn the trial court's order"). 263 So. 3d at 811-12.
Seeking custody, in and of itself, does not place the parent's mental condition "in controversy," Wade, 124 So. 3d at 375, nor is "mere relevance to the case" sufficient. Russenberger, 623 So. 2d at 1245. The mental condition alleged "must directly involve a material element of the cause of action." Williams v. Williams, 550 So. 2d 166, 167 (Fla. 2d DCA 1989). There must be "verified allegations that the parent in question is having mental problems that could substantially impact his or her ability to properly raise children." Wade, 124 So. 3d at 375; see also Asteberg v. Russell, 144 So. 3d 606, 608 (Fla. 2d DCA 2014) (a belief the primary residential parent is not supporting and promoting the child's relationship with the other parent did not put mental health in controversy); Williams, 550 So. 2d at 167 (claims a father failed to use a car seat for the child, that the child wet his pants after a visit with the father, and that the father used bad language in front of the child and was unstable were insufficient to put the father's mental health in controversy). Mental health has been declared "in controvers" where a father seeking parental responsibility made comments to a minor child that he was contemplating suicide. Barry v. Barry, 159 So. 3d 306, 307-08 (Fla. 5th DCA 2015). Baker Act proceedings or a diagnosed schizoaffective disorder can place mental health in controversy. Bailey v. Bailey, 176 So. 3d 344, 346-47 (Fla. 4th DCA 2015); J.B. [v. M.M.], 92 So. 3d 888[,] 890 [(Fla. 4th DCA 2012)]. 263 So. 3d at 812 (emphasis added). We moved on to stress that "[t]he focus of rule 12.360 is not on good or bad parenting, but on something larger, some greater indicator of deeper mental health concerns." Id. We also noted: "The burden of proof is heightened when the party subject to the request for an examination has not voluntarily placed that issue in controversy." Id. (citing Wade, 124 So. 3d at 373).
Oldham v. Greene Family Law Procedure
Reno v. Reno, 282 So. 3d 1631st DCAOct 03, 2019Despite the parade of horribles dad described and position mom suffered from a "psychological disease," he admits he willingly swapped custody of kids with mom & earlier than scheduled 1 weekend & so he and his new wife could celebrate wedding anniversary.
When does a parent's mental health become "in controversy" supporting ordering a psychological examination under Florida Family Law Rule of Procedure 12.360?
Trial court departed from essential requirements of law in finding mom's mental health was in controversy and ordering psychological examination.
Even if a parent establishes "in controversy" element, the parent must establish "good cause" for a psychological exam, based on evidence the parent has been unable to meet child's needs & mental illness places child at risk of abuse, abandonment, or neglect.
Reno Family Law Procedure
Knowlton v. Knowlton, 282 So. 3d 154 1st DCAOct 01, 2019Former Husband argued a point other appeals courts (Second, Fourth, Fifth) accept: it's wrong to assign a heavier burden of proof to a parent owing child support the parents agreed to in a marital settlement agreement than if established by court order.
Section 61.14(7) says the burden of proof to modify support shall be the same whether established by agreement or court order.
See Inman v. Inman, 260 So. 3d 555, 557 n.2 (Fla. 2d DCA 2018) (recognizing it was bound to follow amended 61.14(7)); Ellisen v. Ellisen, 150 So. 3d 1270, 1271 n.2 (Fla. 5th DCA 2014) (recognizing that the Legislature rejected the imposition of a heavier burden of proof by enacting section 61.14(7) in 1993); Garvey v. Garvey, 138 So. 3d 1115, 1120 (Fla. 4th DCA 2014) (acknowledging that the statute was amended in 1993 to provide that the proof required in modification proceedings involving alimony set by agreement versus alimony set by the court is the same).
Knowlton Child Support
Hardy v. Hardy, Case No. 1D17-2771st DCASep 09, 2019Trial court properly used its discretion to freeze 100% of alcoholic arsonist's employee stock ownership plan (ESOP) & trust, while awarding wife only 50%. Husband & out-of-work, alcoholic, repeat violator of domestic violence injunctions burned the marital home to the ground, was serving 20 years for arson, burglary, aggravated stalking.
Pending appeal, trial court could freeze the entire ESOP to protect former wife's rights to meaningful financial relief, including making up for loss of the burned home.
HardyEquitable Distribution
Rios v. Quiala, 279 So. 3d 12443d DCASep 11, 2019Husband, wanting cash to play the stock market, signed & delivered quitclaim deed to Miami Beach marital residence to wife, she'd paid him $80,000. A decade later, he sued for divorce & partition of the property.
Trial court correctly found property deal between H & W 10 years earlier was a clear, unambiguous, enforceable contract. FL law generally says cts should construe together 2 or more contracts the same parties sign at or near the same time as 1 contract.
H signed & delivered quitclaim to W; she pd $80 K evidenced by notarized, written agreement; after conveyance, W maintained property exclusively from her own earnings.
RiosPrenuptial & Postnuptial Agreements
Barrett v. Kapoor, 278 So. 3d 8763d DCAAug 28, 2019Trustees properly distributed residuary trust estate in accordance with Trust. Widow died before late husband's property was sold & before closing. Surviving wife's entitlement to net proceeds from sale of late husband's property was contingent on her being alive at the time of closing.Trusts & Estates
Janet Meliha Reno v. James Alan Hurchalla, 283 So. 3d 3673d DCAAug 21, 2019Janet Reno's niece appealed judgment modifying revocable trust Janet Reno created before death, which, upon death, became irrevocable.
Successor trustee & all living beneficiaries agreed to Trust modification to fulfill charitable intent: maintain the Reno Homestead in perpetuity & preserve its unique character & history & by replacing University of Miami with Miami Dade College.
Cy pres is French for "as near as may be," Under the Florida Trust Code, Section 736.0413, Florida Statutes (1) If a particular charitable purpose becomes unlawful, impracticable, impossible to achieve, or wasteful, the court may apply the doctrine of cy pres to modify or terminate the trust by directing that the trust property be applied or distributed, in whole or in part, in a manner consistent with the settlor's charitable purposes. (2) A proceeding to modify or terminate a trust under this section may be commenced by a settlor, a trustee, or any qualified beneficiary.

Janet Reno wanted to give her homestead & surrounding undeveloped land to Univ of Miami, but it rejected the bequest after she died. The Reno estate still owned the Reno Homestead at her death. Her 2 brothers, including the suing niece's dad, predeceased her.
Rights of the contingent beneficiaries (nieces & nephews) to a revocable trust, the settlor of which was living, were subject to her powers to retain the property or mortgage or sell it. One trust provision directed homestead be sold on brothers' death, with proceeds to go to nieces & nephews, but a more specific provision devoted exclusively to the charitable gift of the unique, historically important homestead controlled when the Settlor died.
Ms. Reno died when the trust still owned the homestead & she couldn't know the Univ of Miami would decline her charitable gift, so cy pres permitted modifying the trust.
Seventy years ago, the Florida Supreme Court explained cy pres: Roughly speaking, it is the principle that equity will make specific a general charitable intent of a settlor, and will, when an original specific intent becomes impossible or impracticable of fulfillment, substitute another plan of administration which is believed to approach the original scheme as closely as possible. Christian Herald Ass'n v. First Natl Bank of Tampa, 40 So. 2d 563, 568 (Fla. 1949) Ordinarily, the cy pres doctrine is applied where the named beneficiary is a corporation or institution that has ceased to exist at the time of the testator's death. SPCA Wildlife Care Ctr. v. Abraham, 75 So. 3d 1271, 1276 (Fla. 4th DCA 2011).
Janet Reno TrustTrusts & Estates
Hahamovitch v. Hahamovitch, 174 So. 3d 983Supreme Court of FloridaSep 19, 2015Where a contract is clear and unambiguous, it must be enforced pursuant to its plain language. In such a situation, the language itself is the best evidence of the parties' intent, and its plain meaning controls.HahamovitchPrenuptial & Postnuptial Agreements
Marini v. Kellett, 279 So. 3d 2485th DCAAug 16, 2019Two parents who loved their son spent a great deal of time and money on litigation because they couldn't agree on most aspects of each party's relationship with their son.
Court-ordered timesharing required 5-year old boy to travel alone 3 of 4 weekends every month by plane between NC & FL.
The parties made the trial court's already difficult job all the more so by their unwillingness to agree, failing to timely provide relevant evidence to the trial court, and failing to focus primarily on their child's best interests.
Trial court abused its discretion in establishing unreasonable timesharing & travel schedule to require a young child to take 24-36 annual flights. "Such frequent flights with the predictable occasional delays are not in the best interest of the child. Additionally, both parents have testified that they cannot afford the expense of the airline tickets nor the time and income lost from work associated with the travel. We must conclude that no reasonable person would take the view adopted by the trial court."
Given that the travel expenses are necessary expenses incurred pursuant to court order & the parties both professed difficulty paying such exorbitant expenses, the court abused its discretion in failing to consider the expenses when calculating child support & in failing to consider the travel expenses when determining the parties' income & ability to pay.
Marini v. KellettChild Support
Hubbard v. Berth, 279 So. 3d 2465th DCAAug 16, 2019By tacking together duration of 1st & 2nd marriages, trial court incorrectly calculated marital portion of pension. Parties married & divorced each other twice, each time with marital settlement agreements.
Under 2d MSA, ex-wife was entitled to one-half ex-husband's pension
Reconciliation or remarriage abrogates executory provisions of prior MSA unless parties explicitly state they intend otherwise. Cox v. Cox, 659 So. 2d 1051 (Fla. 1995).
In Hubbard, ex-Wife waived interest in pension during 1st marriage in 1st MSA.
Allowing the former wife to obtain pension benefits accrued during the first marriage-benefits she did not bargain for in the first or second marital settlement agreement would rewrite both of the parties' settlement agreements.
Hubbard v. BerthMarital Settlement Agreements
Wilson v. Wilson, 279 So. 3d 1604th DCAAug 14, 2019In prenuptial agreement, couple waived elective share but reserved rights to make gifts by will or codicil. Husband's later will created trust directing trustee to set aside "as much property as is necessary to satisfy the Wife's elective share." W files notice of election to take elective share, which trial court struck. Did husband's creation of trust requesting setting aside property to satisfy the same elective share modify the wife's waiver of elective share in prenuptial (premarital) agreement? Answer: No.
Prenup unambiguously expressed wife waived her elective share. Later trust could not modify prenup under its terms & Section 61.079(6) (Florida's Uniform Premarital Agreement Act). To modify prenup, the parties had to do so in writing that both parties' signed. Where a contract is clear and unambiguous, it must be enforced pursuant to its plain language. In such a situation, the language itself is the best evidence of the parties' intent, and its plain meaning controls. Hahamovitch v. Hahamovitch, 174 So. 3d 983, 986 (Fla. September 10, 2015). Decedent could've given wife a testamentary gift by will or codicil without relying on an elective share & the elective share statute.
WilsonPrenuptial & Postnuptial Agreements
In re Marriage of Kirby, 280 So. 3d 984th DCAAug 14, 2019After wife died, before her estate was even opened or substituted as a party in dissolution of marriage, trial court erred by granting ex-husband's motion for attorney fees, intending to bind the former wife's estate and heirs. Upon a party's death, if a claim isn't thereby extinguished, abate the action until the estate or proper legal representative is substituted. See Florida Family Law Rule of Procedure 12.260. KirbyAttorney Fees
Logue v. Book, Case No. 4D18-11124th DCAJune 24, 2020What vulgar and distasteful social media conduct is NOT cyberstalking under Florida law? The 2d and 3d DCAs interpret cyberstalking - a course of conduct directed at a specific person - to exempt social media messages from conduct covered by the stalking statute (784.0485, Florida Statutes).

Horowitz v. Horowitz, 160 So. 3d 530, 531 (Fla. 2d DCA 2015) (reversing injunction because Facebook posts were not directed at a specific person); Chevaldina v. R.K./FL Mgmt., Inc., 133 So. 3d 1086, 1092 (Fla. 3d DCA 2014) (reversing injunction against cyberstalking for internet posts)
What does it mean to direct communications at a specific person, not necessarily direct them to the person? Social media postings are not excluded from the reach of the stalking statute. Postings not sent directly to someone may still be directed at the person by tagging or sufficiently describing the person to be identified. Postings may be designed so they are likely to come to the target person's attention, even if indirectly.
Actions designed to harangue or threaten violance are not protected.
Chevaldina at 1092:
Angry social media postings are now common. Jilted lovers, jilted tenants, and attention-seeking bloggers spew their anger into fiber-optic cables and cyberspace. But analytically, and legally, these rants are essentially the electronic successors of the pre-blog, solo complainant holding a poster on a public sidewalk in front of an auto dealer that proclaimed, "DON'T BUY HERE! ONLY LEMONS FROM THESE CROOKS!" Existing and prospective customers of the auto dealership considering such a poster made up their minds based on their own experience and research. If and when a hypothetical complainant with the poster walked into the showroom and harangued individual customers, or threatened violence, however, the previously-protected opinion crossed the border into the land of trespass, business interference, and amenability to tailored injunctive relief. The same well-developed body of law allows the complaining blogger to complain, with liability for money damages for defamation if the complaints are untruthful and satisfy the elements of that cause of action. Injunctive relief to prohibit such complaints is another matter altogether.

Dissenting opinion by Judge May:
Social media postings "have led people to lash out and wreak havoc on children, families, friends, communities. Social media posts, which direct attention and can motivate others to act, are threatening and dangerous. In fact, perhaps more so as the subject of the postings has no way of knowing who reads or may act upon them."
Logue v. Book Domestic Violence
Orban v. Rorrer, 279 So. 3d 2343d DCAAug 14, 2019Discussion contrasting civil contempt w criminal contempt. Ex-wife said ex-husband wilfully violated court orders to pay attorney fees. Improper civil sanction where court omitted purge provision.
Civil contempt proceedings involve a two-stage inquiry: first, the court must determine that the allegedly contemptuous respondent willfully violated the court's order; and second, decide what remedy is appropriate. Perez v. Perez, 599 So. 2d 682, 683 (Fla. 3d DCA 1992).
Florida jurisprudence recognizes three kinds of sanctions: (1) criminal sanctions, (2) compensatory civil sanctions, and (3) coercive civil sanctions. Creative Choice Homes, II, Ltd. v. Keystone Guard Servs., Inc., 137 So. 3d 1144, 1146 (Fla. 3d DCA 2014).
"The key distinction between criminal and civil contempt is that criminal contempt is punitive in nature and imposes an unavoidable sanction, whereas civil contempt is remedial or incentive-based and allows the contemnor to purge the contempt and avoid or reduce the sanction by complying with court orders." Id. (citing Parisi v. Broward Cty., 769 So. 2d 359, 365 (Fla. 2000)).
Coercive civil sanctions are imposed by courts to prompt-coerce-alleged contemnors to comply with court orders. See id. "[T]here is a broad arsenal of coercive civil contempt sanctions available to the trial court, including incarceration, garnishment of wages, additional employment, the filing of reports, additional fines, the delivery of certain assets, the revocation of a driver's license . . . ." Parisi, 769 So. 2d at 365 (Fla. 2000) (quoting Gregory v. Rice, 727 So. 2d 251, 254 (Fla. 1999)).
Orban v. Rorrer Contempt
Allen v. Juul, 278 So. 3d 7832d DCAAug 09, 2019No motion for rehearing was required where, in denying attorney fees, trial judge failed to make findings under 61.16(1), Florida Statutes re parties' respective financial needs & abilities to pay.
Section 61.16(1) "expressly requires the court to make findings regarding the parties' respective financial needs and abilities to pay." Sumlar v. Sumlar, 827 So. 2d 1079, 1084 (Fla. 1st DCA 2002). The parties' financial resources are the primary factor that the trial court must consider; after all, "the purpose of section 61.16, Florida Statutes, is to ensure that both parties have comparable ability to retain competent counsel." Hanson v. Hanson, 217 So. 3d 1165, 1169 (Fla. 2d DCA 2017); see generally Phillips v. Phillips, 264 So. 3d 1129, 1132 (Fla. 2d DCA 2019) (explaining what evidence the requesting party must present to support an award of attorney's fees under section 61.16). "Even in those cases raising issues of inappropriate conduct, the trial court still must consider the parties' respective need for suit money and ability to pay." Sumlar, 827 So. 2d at 1085.
On remand, the trial court shall take into consideration and make specific detailed findings of fact regarding the parties' financial resources and any of the Rosen factors that are relevant to its determination.
Allen v. Juul Attorney Fees
Cruz v. Community Bank & Trust of Florida, 277 So. 3d 10955th DCAAug 09, 2019Tracy & Gregory sued bank, as trustee, for mismanagement of Trust & to invalidate dad's will & pour over trust. Tracy & Gregory claimed dad lacked testamentary capacity when he signed will. Trust directed most assets to to Hospice of Marion County & leukemia research.
Tracy & Gregory weren't named beneficiaries of Trust. But they alleged they were "interested persons" under 736.201(23), Florida Statutes who had standing because they'd inherit their dad's estate if his Will & Trust were invalidated.
Section 731.201(23), Florida Statutes (2016), defines "interested person" under the Trust Code as "any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved." The meaning of interested person, "as it relates to particular persons, may vary from time to time and must be determined according to the particular purpose of, and matter involved in, any proceedings." Id. Section 736.201(23). Thus, for Appellants to have standing as interested persons' those affected by the outcome of the breach of trust action they must have some cognizable interest in the underlying trust property.
Cruz Trusts & Estates
Abdo v. Abdo, Case Nos. 2D18-2270, 2D18-27642d DCAAug 07, 2019Siblings fight over ownership of 6 websites & income stream from them. Claim brother took sole control, then stiffed them on income.
Trial court imposed a constructive trust on websites, appointed trustee. Orders exceeded the purpose of a constructive trust because the trial court lacked jurisdiction over 2 defendants the orders seek to enjoin.
Website companies previously secured dismissal because of no personal jurisdiction.
Sibling sued brother on behalf of corporation & shareholder, claiming brother transferred websites & merchant accounts to ltd partnership or LLC w/o approval or compensation.
A constructive trust is a remedy, not an independent cause of action. A constructive trust, "ust be imposed based upon an established cause of action." Such as: breach of fiduciary duty.
A constructive trust serves two purposes: "to restore property to the rightful owner and to prevent unjust enrichment." Brown v. Poole, 261 So. 3d 708, 710 (Fla. 5th DCA 2018) (quoting Provence v. Palm Beach Taverns, Inc., 676 So. 2d 1022, 1025 (Fla. 4th DCA 1996)). It "is 'constructed' by equity to prevent an unjust enrichment of one person at the expense of another as the result of fraud, undue influence, abuse of confidence or mistake in the transaction that originates the problem." Wadlington v. Edwards, 92 So. 2d 629, 631 (Fla. 1957); see also Caryl A. Yzenbaarda, George Gleason Bogert & George Taylor Bogert, The Law of Trusts and Trustees, Section 471 (June 2018) ("The constructive trust may be defined as a device used by equity to compel one who unfairly holds a property interest to convey that interest to another to whom it justly belongs.").
"The very essence of the remedy of constructive trust is the identification of specific property or funds as the res upon which the trust may be attached." Collinson, 903 So. 2d at 229. It "may be imposed only where the trust res is 'specific and identifiable property,' or can be 'clearly traced in assets of the defendant.' " Frieri v. Capital Inv. Servs., Inc., 194 So. 3d 451, 455 (Fla. 3d DCA 2016) (quoting Bank of Am. v. Bank of Salem, 48 So. 3d 155, 158 (Fla. 1st DCA 2010)). "The remedy is 'an extraordinary one,' subject to the discretion of the court and traditional equitable defenses." Joseph v. Chanin, 940 So. 2d 483, 487 (Fla. 4th DCA 2006) (quoting Collinson, 903 So. 2d at 228).
Abdo Trusts & Estates - Constructive Trusts
M/I Schottenstein Homes, Inc. v. Azam, 813 So. 2d 91Supreme Court of FloridaMar 07, 2002 Knowledge of clearly revealed information from recorded documents contained in the records constituting a parcel's chain of title is properly imputed to a purchasing party, based upon the fact that an examination of these documents prior to a transfer of the real property is entirely expected.M/I Schottenstein Homes, Inc. v. Azam Property
Norman v. Jaimes, 276 So. 3d 8364th DCAJul 31, 2019Buyer of home property was on constructive notice of recorded county code enforcement lien for unauthorized structure (trailers). Trial judge improperly rewrote parties' contract by allowing buyer to pay a small portion of purchase price, netting balance due on county lien.
Buyer should not have stopped monthly payments towards purchase price for property. Error for court to find seller's present inability to satisfy code enforcement lien constituted anticipatory breach.
Until the buyer made the payments set forth in the contract to buy the property, under the contract's plain language, seller had no obligation to delivery clear title to buyer. Regardless of whether seller informed buyer of the lien's existence, the lien was recorded before the parties entered into contract. Buyer presented no evidence the seller made any misrepresentation regarding whether a lien existed or not. Buyer had constructive notice of lien. M/I Schottenstein Homes, Inc. v. Azam, 813 So. 2d 91 (Fla. 2002) ("Knowledge of clearly revealed information from recorded documents contained in the records constituting a parcel's chain of title is properly imputed to a purchasing party, based upon the fact that an examination of these documents prior to a transfer of the real property is entirely expected.") ,a href="https://scholar.google.com/scholar_case?case=2102352380347978716&q=813+So.+2d+91+&hl=en&as_sdt=4,10">MI Schottenstein Homes.

Circuit court, motivated to "do equity between the parties," went too far when it used its declaratory relief powers to modify parties' contract to a contract of the court's own creation.
Norman v. Jaimes Property
Randy Postma and Cary v. Baker, 276 So. 3d 8284th DCAJul 31, 2019A party who has a contractual right to exercise discretion must exercise it reasonably & with proper motive, not arbitrarily, capriciously, or inconsistently w/ parties' reasonable expectations.
Buyers alleged sellers lied when they said motorcoach had never been wrecked. Inspection clause in settlement agreement: Buyer's exercised right to inspect & determine if motorcoach was to his satisfaction.
Postma sold to Baker motorcoach w/ 76,000 miles. At mediation, Postma learned Bakers had driven it 40,000 more miles since they bought it. Postma agreed to buy it back, subject to his right to inspect it. At inspection, Postma found issues and didn't complete repurchase. Trial court granted Bakers' motion to enforce settlement agreement.
Reversing, 4th DCA agrees the clear & unambiguous inspection clause in the confidential mediated settlement agreement was a condition precedent to enforcing it & requiring Postma to buy back motorcoach. Trial court erred in finding inspection right was limited to confirming Bakers accurately described motorcoach's condition at mediation.
Postma v. Baker Marital Settlement Agreements
Lattanzio v. Hoffmann, 278 So. 3d 7513d DCAJul 31, 2019Reversing severest sanction of striking husband's pleadings when husband didn't show up for hearing on order to show cause why he shouldn't be held in contempt. But order wasn't sent to him. It went to his former attorney, who'd withdrawn.Lattanzio Contempt
Hicks v. State, 276 So. 3d 127 1st DCAJul 23, 2019Why would a child victim of sexual abuse be open, honest or even willing to seek necessary treatment if he or she believes that others, including the perpetrator of the sexual abuse would have unlimited access to those mental health care records?
Dad, accused of sexually assaulting daughter, sought LCSW's privileged notes of communications in therapy with children. Judge ordered in-camera inspection. Granting certiorari, appeals ct finds order departs from essential requirements of law & causes material injury to LCSW or her patients throughout remainder of proceedings, for which no adequate remedy is available on appeal.
Absent clear, unequivocal waiver of psychotherapist-patient privilege, compelled disclosure of confidential therapy notes for 3 minor children is a fishing expedition against which courts have strongly cautioned. See also J.B. v. State, 250 So. 3d 829, 833 (Fla. 3d DCA 2018).
Privilege exists to encourage patients to seek counseling & treatment for psychological harm.
Limited litigation activities failed to establish clearly a waiver of 3 minor children's (all under age 12) psychotherapist-patient privilege w/ Licensed Clinical Social Worker.
Christy Dale Springer v. Nicole Ann Springer, 277 So. 3d 7272d DCAJul 19, 2019Same sex former partners. Christy (non bio mom) paid for intraeuterine insemination of Nicole (bio mom). Non bio mom had no biological connection to child, born July 2014. Child was 4 years old when former partner sued to enforce pre-birth coparenting agreement, a form for which Christy pulled from the internet. Agreement referred to child to be born as "our child" expressed the intention for the parties to "jointly and equally" share parental responsibility. But the agreement recognized that under the law their power to contract regarding the child was limited. The agreement also stated "that the law will recognize [the Biological Mother] as the only mother of the child."
Former Partner sought to be recognized as a legal parent of the child and to be awarded parental responsibility & timesharing. However, a coparenting agreement between a biological parent and a nonparent is not enforceable under Florida Law.
See Wakeman v. Dixon, 921 So. 2d 669, 671-73 (Fla. 1st DCA 2006) (determining that a coparenting agreement between a same-sex couple was unenforceable under Florida law where a former partner sought a declaration of parental rights); D.M.T. v. T.M.H., 129 So. 3d 320, 346 (Fla. 2013) (involving a partner who was the egg donor seeking parental rights and distinguishing Wakeman because the partner there who claimed parental rights was not a biological mother; recognizing that cases involving nonparents did not apply to biological parents); Russell v. Pasik, 178 So. 3d 55, 59-60 (Fla. 2d DCA 2015) (relying upon Wakeman in determining that the time-sharing provisions of section 61.13 apply to parents, not nonparents, and determining that a "de facto" parent in a same-sex relationship had no standing to seek time-sharing); De Los Milagros Castellat v. Pereira, 225 So. 3d 368, 372 (Fla. 3d DCA 2017) (Logue, J., concurring) ("In D.M.T., the Florida Supreme Court expressly approved Wakeman's holding that the lesbian partner who was the birth mother had parental rights protected by the constitution that prevailed over the claims of a partner who was neither the biological nor legal mother, even though the couple clearly intended to raise the children together." (citing D.M.T., 129 So. 3d at 346)).
"We commend the trial court for its thorough analysis and acknowledge its concerns that 'the law is slow to address' changes in this area 'as society and medicine create new factual situations,' echoing Judge Van Nortwick's special concurrence in Wakeman. See Wakeman, 921 So. 2d at 674-76 (Van Nortwick, J., specially concurring). Despite his observations, Judge Van Nortwick recognized that Florida law does not provide a remedy to a partner who has no biological connection to a child. See id. at 674. Based on the applicable law, we affirm the trial court's order."
SpringerTimesharing & Parental Rights - LGBTQ Issues
Wakeman v. Dixon, 921 So. 2d 6691st DCAJan 24, 2006A coparenting agreement between a same-sex couple was unenforceable under Florida law where a former partner sought a declaration of parental rights.WakemanTimesharing & Parental Rights - LGBTQ Issues
D.M.T. v. T.M.H., 129 So. 3d 320Supreme Court of FloridaNov 07, 2013Same sex partner who was the egg donor sought parental rights.
Two women, D.M.T. and T.M.H., in a long-term committed relationship, agreed to conceive jointly and raise a child together, as equal parental partners. Their child was conceived through assisted reproductive technology, with T.M.H. providing the egg and D.M.T. giving birth to the child. After the child was born, the couple gave her a hyphenation of their last names. Both T.M.H. and D.M.T. participated in raising their child until their relationship broke down. D.M.T. absconded to Australia with the child. T.M.H. sought to establish her parental rights to the child and to reassume parental responsibilities. D.M.T. sought to prevent T.M.H. from doing either. D.M.T. asserted she alone should have the fundamental right to be the parent of the child.
Cases involving nonparents did not apply to biological parents. TMH provided the egg, so had a biological connection to the child.
"We conclude that the State would be hard pressed to find a reason why a child would not be better off having two loving parents in her life, regardless of whether those parents are of the same sex, than she would by having only one parent."
DMTTimesharing & Parental Rights - LGBTQ Issues
Russell v. Pasik, 178 So. 3d 552d DCAOct 14, 2015Relying on Wakeman v. Dixon, , 921 So. 2d 669, 671-73 (Fla. 1st DCA 2006), court holds timesharing provisions of section 61.13 apply to parents, not to nonparents, and determining that a "de facto" parent in a same-sex relationship had no standing to seek timesharing.Russell v. PasikTimesharing & Parental Rights - LGBTQ Issues
De Los Milagros Castellat v. Pereira, 225 So. 3d 3683d DCAAug 16, 2017Logue, J., concurring: "In D.M.T., the Florida Supreme Court expressly approved Wakeman's holding that the lesbian partner who was the birth mother had parental rights protected by the constitution that prevailed over the claims of a partner who was neither the biological nor legal mother, even though the couple clearly intended to raise the children together." (citing D.M.T., 129 So. 3d at 346)De Los Milagros v. Pereira Timesharing & Parental Rights - LGBTQ Issues
Fla. Dep't of Children & Families v. Adoption of X.X.G., 45 So.3d 793d DCASep 22, 2010Florida law prohibiting same-sex couples from adopting is unconstitutional.DCF v. XXGAdoption - LGBTQ Issues
Miller v. Miller, 277 So. 3d 7251st DCAJul 16, 2019Reverses temporary order granting dad's petition to relocate with children. Court must consider factors in 61.13(3) & 61.13001(7), Florida Statutes. But here, trial court determined every statutory factor (there are ~30 factors) was neutral. Because it's unclear how statutory factors may change, prospective-based analysis of a child's best interest is unsound. Arthur v. Arthur, 54 So. 3d 454, 459 (Fla. 2010). Trial court's conclusions of blanket neutrality re statutory factors, without saying how it got to those conclusions wasn't supported by competent substantial evidence.
Trial court granted temporary relocation despite uncertainty of the dad's chief exam status. That led to the trial court's unsound, prospective-based analysis.
Miller Timesharing - Relocation
Szurant v. Aaronson, 277 So. 3d 1093 2d DCAJul 17, 2019Order granting charging lien for attorney fees & costs in #divorce case was overly broad, because it extended beyond the proceeds divorce attorney recovered through his efforts. Charging Lien judgment states lawyer was entitled to the equitable distribution of funds Wife got from the divorce and "all of her money and/or personal property in her possession."Szurant v. AaronsonAttorney Fees
Dunn v. Dunn, 277 So. 3d 10815th DCAJul 12, 201985% cut in permanent alimony reversed. Former Wife a homemaker & primary caregiver for 4 children. Ophthalmologist Former Husband files in 1999 for divorce. He netted $46,000/month. She gets $1.3 million assets + $12,000/month alimony. In 2014, when kids are adults, he sues to cut her alimony. 3 years later, trial.
By trial, Former Husband grossed $101,000/month before alimony & taxes. In marriage, parties owned 2 airplanes, 2 fly-in homes, took trips to vacation homes.
Former Wife's dad lived with her 3 year before he died. He reimbursed her for his care expenses.
She paid dad's $700/month expenses from account titled in her name, but containing dad's VA benefits he left to her. She omitted account on her financial affidavit because she didn't consider it her money.
Parties' adult son who had mental health issues, lived with her since 2014. She also gave $ to parties' children, including for college expenses.
FH questioned FW about her travel for family visits & events during pendency of modification petition, all in US, all of which she paid.
Ophthalmologist ex-husband grossing over $100,000/month disputed ex-wife's inability to work. She'd undergone back surgery. hadn't worked outside the home during entire marriage. But he pointed to her caring for her dad as proof she could earn a living caring for the elderly. Trial court didn't impute income to her.
Doctor used forensic expert Adam Magill, who examined ex-wife's financial records from 2 years before trial. He opined she didn't need alimony to cover her expenses, because she wouldn't have to invade $950,000 principal investment. Her experts opined differently. Volusia County trial court accepted Adam Magill's testimony.
Trial judge cut alimony from $12,000/month to $1,819/month, retroactive to date FH filed modification petition, & ordered her to repay him $400,000 (38 months of litigation). Reversing, appeals court disagreed FW's financial growth was 'phenomenal' and unanticipated.
trial court in alimony modification case mistakenly looked at it entirely from FW's current standard of living, rather than from the standard of living the parties enjoyed during their marriage. "The purpose of permanent periodic alimony is to provide for the needs and necessities of life for a former spouse as they were established during the marriage of the parties." Mallard v. Mallard, 771 So. 2d 1138, 1140 (Fla. 2000) (citing Canakaris v. Canakaris, 382 So. 2d 1197, 1201 (Fla. 1980).
Trial court shouldn't have punished ex-wife for living more modestly since the parties' divorce. She lives in a less expensive home, doesn't own a plane, spends less. She shouldn't be penalized for trying to ensure her financial future by limiting her expenditures.
Cutting alimony by 85% dramatically altered FW's marital standard of living.
The court accepted expert Adam Magill's figures without considering the impact of the retroactive payment ($400,000) on the investment account. Her monthly investment income will drop after repaying Former Husband. Trial court should have recalculated her need based on her monthly investment income following repayment, considered tax implications of ruling, & considered mode of repayment.
Remand for further proceedings.
Bob Mazur v. Francisco Javier Ospina Baraya, 275 So. 3d 8122d DCAJul 10, 2019Baraya sued alleging book & movie defendants falsely portrayed him as money launderer & integral member of Pablo Escobar's criminal operations in The Infiltrator.
Although books and movies may address topics of public interest, they are not part of the traditional news media or press, and therefore the Petitioners/Defendants in this case are not "media defendants" for Section 770.01, Florida Statutes.
Book & movie defendants are non-media defendants for purposes of Section 770.01, & not entitled to presuit 5-day notice before suing for libel or slander. It applies to "newspaper, periodical, or other medium" not books or movies.
Florida courts interpret "other medium" in the statute protecting free press to be limited to news media who publish statements by an "other medium."
Especially as technology develops and society's media consumption changes, becoming increasingly geared toward instantaneous access, the line between traditional news media and other forms of media may become blurred. Many people get their news via Facebook, YouTube, Twitter, Instagram, LinkedIn, or Reddit.2 Podcasts have boomed in popularity, and many cover current events. 3 Shows and movies many of which are documentaries, docuseries, or based on true stories can be streamed on services such as Netflix, Amazon Prime Video, and Hulu. 4 These technological developments may also make it easier to issue corrections and retractions that actually reach the intended audience. Apps can send push notifications with corrections or retractions straight to users' smart phones. 5 Corrections and retractions can be posted to and shared widely on social media. 6
It's for the Florida Legislature to decide if the presuit notice statute should have wider reach in light of technological developments.
Ziegler v. Natera, 279 So. 3d 12403d DCAJul 10, 2019Affirms invalidating premarital (prenuptial) agreement fiance signed on wedding eve in Venezuela. She was 4 months pregnant with their 2d child. Perfunctory financial disclosures. Prenup didn't provide for equitable distribution or alimony.
He let fiance glance at draft, and promised financial disclosures he didn't make.
Day before wedding, he threatens to cancel ceremony if she didn't sign; told her not getting marriage certificate would thwart their imminent plan to emigrate to US. So she signed.

Choice of law where agreement didn't provide otherwise was, lex loci contractus (the place they signed it, Venezuela). Venezuelan law governs execution, interpretation, validity. But both parties urged Florida law should apply; trial court ratified their tacit stipulation.
Court discusses prenups and duress.
"[I]t is black letter law that the parties to an antenuptial agreement do not deal at arm[']s length with each other." Lutgert v. Lutgert, 338 So. 2d 1111, 1115 (Fla. 2d DCA 1976). Rather, "[t]heir relationship is one of mutual trust and confidence." Id. As such, "the parties must exercise the highest degree of good faith, candor[,] and sincerity in all matters bearing on the terms and execution of the proposed agreement, with [f]airness being the ultimate measure." Id. Florida's Uniform Premarital Agreement Act, Section 61.079(7)(a), Florida Statutes (2019) provides:
"A premarital agreement is not enforceable in an action proceeding under the Florida Family Law Rules of Procedure if the party against whom enforcement is sought proves that . . . [t]he agreement was the product of fraud, duress, coercion, or overreaching." Duress means "a condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes him [or her] to do and act or make a contract not of his own volition." Herald v. Hardin, 95 Fla. 889, 891, 116 So. 863, 864 (1928) To prove duress, "[i]t must be shown (a) that the act sought to be set aside was effected involuntarily and thus not as an exercise of free choice or will and (b) that this condition of mind was caused by some improper and coercive conduct of the opposite side." City of Miami v. Kory, 394 So. 2d 494, 497 (Fla. 3d DCA 1981). Thus, duress involves a "dual concept of external pressure and internal surrender or loss of volition in response to outside compulsion." Id. (quoting 17 C.J.S. Contracts Section 168 (1963)). "It is not . . . duress for the proponent of the agreement to make it clear that there will be no marriage in the absence of the agreement." Eager v. Eager, 696 So. 2d 1235, 1236 (Fla. 3d DCA 1997). Nonetheless, a party may not exploit another "for his [or her] own pecuniary advantage." Berger v. Berger, 466 So. 2d 1149, 1151 (Fla. 4th DCA 1985) (citing Paris v. Paris, 412 So. 2d 952 (Fla. 1st DCA 1982)).

Wife's testimony established husband initially presented his pregnant fiance with the disputed document six days before the wedding. At that time, she requested he produce evidence re his holdings & net worth. He assured her such evidence would be forthcoming. In lieu of honoring his pledge, the day before the wedding, he demanded execution, with the ultimatum of "[n]o agreement, no wedding." Lutgert, 338 So. 2d at 1116. He threatened life-altering consequences, by imperiling their shared, long-term plan to begin life anew with their children in the United States.
Held: these circumstances, unrebutted by husband, supported finding duress. See Hjortaas v. McCabe, 656 So. 2d 168, 170 (Fla. 2d DCA 1995) ("First, the timing of the signing of the document indicates that [the wife's] signature was the product of duress. Two days before the wedding [the wife] was presented with a document, the actual terms of which were previously unknown to her and which contained no information about [the husband's] finances. She had only one day to seek counsel from her own attorney, to make an independent evaluation of the contract, or to cancel her wedding. The only rational conclusion is that her signature was the product of unwarranted compulsion, and the document should have been set aside on that basis.")
Ziegler v. NateraPrenuptial & Postnuptial Agreements
Flinn v. Doty, 275 So. 3d 6714th DCAJul 10, 2019In earlier case, Flinn v. Doty , 214 So. 3d 683 (Fla. 4th DCA 2017) Ct allowed foreclosing equitable lien on homestead for moneys paid to satisfy mortgage on property.
Because amended judgment converted equitable lien to a money judgment, because original judgment was reversed, but the property owner failed to get a stay of the original judgment, the property on which the equitable lien was imposed was sold by judicial sale. Remedy now: pursue deficiency decree.
Incapacitated dad. 1 daughter is guardian. She sought (& got) an equitable lien on sister's homestead for $$$ sis rec'd by selling properties dad deeded to her when he was incapacitated. Sis used funds to pay off home mortgage.
But add'l funds not used to satisfy home mortgage couldn't be included in foreclosure of equitable lien on home.
Election of remedies discussed. PR elected remedy of foreclosing equitable lien on home, to satisfy both equitable liens. PR now has to pursue deficiency decree under the remedy he elected, not also entitled to a money judgment for the entire amount not subject to the foreclosure.
Flinn v. DotyHomestead
Lapciuc v. Lapciuc, 275 So. 3d 242 3d DCAJul 03, 2019Ex-wife & her limited liability company appeal order granting emergency motion to enforce settlement agreement filed by ex-husband's & company he & ex-wife owned 85%-15%.
Under 2013 marital settlement agreement, he agreed to pay her $4 million for buy out, then, after he paid that, she'd get a reissued 15% & 10-year employment contract at $200,000/year. Under the MSA, he signed all rights in the LLC to her, leaving her as sole member.
Former husband bought new business and pledged assets in the family company, and cross-collateralized them with assets of the acquired company, to get financing for its acquisition.
Ex-wife objected and filed a shareholder derivative action against ex-husband and the family company. The parties settled the derivative action by 2017 settlement agreement.
Then, he negotiated increases in the LLC's and corporation's portfolios. To finance increased demand for inventory, he applied to increase an asset-based line of credit. Ex-wife objected, asserting she had the right to okay or object to the new LOC. She also claimed the loan wasn't "commercially reasonable" as contemplated by the 2017 Settlement Agreement.
Mercantile Bank wouldn't close the loan until the parties resolved the dispute.
Ex-husband sued to enforce the 2017 agreement (the one settling the derivative action).
Held: The trial court should not have decided the merits of the ex-husband's motion to enforce the Settlement Agreement without evidence to evaluate the commercial reasonableness of the increased line of credit.
LapciucMarital Settlement Agreements
Singer v. Singer, 278 So. 3d 792d DCAJul 03, 2019Parties divorced in 1990. From 1995 - 2019, in the appeals court alone, they generated 25 proceedings & 6 reported opinions!
In Broward County, from 1989-2019 -- over 30 years of litigation -- there are 2855 docket entries in the family law case.
In 2009, trial ct found ex-wife's violation of cohabitation clause in marital settlement agreement meant she should've received no alimony after November 30, 1991. In 2015, court entered final judgment for FH for $285,000 for overpaid alimony plus found ex-wife owed him fees under 57.105, Florida Statutes.
The Singers spent 30 years litigating at the trial level and appeals. Money spent on fees? Time spent absorbed in the lawsuits & appeals? Court resources diverted?
Purposes of Florida's Dissolution of Marriage, Support, and Time-Sharing StatuteFlorida Statutes, 61.001Jul 01, 1971For nearly 5 decades, since July 1, 1971, the purposes of Florida's Dissolution of Marriage Statute, Chapter 61, Florida Statutes, have been: (a) To preserve the integrity of marriage and to safeguard meaningful family relationships; (b) To promote the amicable settlement of disputes that have arisen between parties to a marriage; (c) To mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage.
Which path for resolving issues best achieves these goals for your family? Collaborative Mediation or Litigation?

For more about divorce options, go to Divorce Options
Purposes of Florida Dissolution of Marriage, Support, and Time-Sharing StatuteCollaborative Practice
Engle v. Engle, 277 So. 3d 6972d DCAJul 03, 2019No motion for rehearing is required for family law to preserve a challenge to a trial judge's ruling for lack of required statutory fact findings.
- Second District breaks First, Third & Fifth Districts - which still require motion for rehearing to preserve argument for reversal because trial court's ruling lacked sufficient statutory findings.
2d DCA traces the "culprit" causing the incorrect conclusion that a motion for rehearing is required to preserve argument on appeal that trial ct failed to make required statutory findings is the lead case of Ascontec Consulting, Inc. v. Young, 714 So. 2d 585, 587 (Fla. 3d DCA 1998), followed in Broadfoot v. Broadfoot, 791 So. 2d 584 (Fla 3d DCA 2001). See also
Mathieu v. Mathieu 877 So. 2d 740 (Fla 5th DCA 2004) and Owens v. Owens, 973 So. 2d 1169 (Fla. 1st DCA 2007).
The trial judge should know what findings are statutorily required in a final judgment of dissolution. Remand to the trial court to make the required findings is appropriate.
A stated purpose of Florida's divorce statute is "To mitigate the potential harm to the spouses and their children caused by the process of legal dissolution of marriage." 61.001(2)(c), Florida Statutes.
EngleFamily Law Procedure
Covey v. Shaffer, 277 So. 3d 6942d DCAJul 03, 2019Reverses trial court's granting without a hearing Linda's Shaffer's petition to appoint emergency temporary guardian for Beulah Covey.
Beulah's partner of 36 years, Linda alleged Beulah suffered from Alzheimer's. Beulah's niece took her to Michigan, cut off aunt Beulah's communication w/ partner, and revoked her partner's power of attorney.
Judge issues order w/o notice to Beulah, appointing Linda as Beulah's emergency temporary guardian, & appoints attorney to represent Beulah. Beulah & niece come to FL, challenge temporary guardian appointment. During appeal, trial court determined Beulah was incapacitated & appointed partner, Linda, as permanent guardian of Beulah's person & a professional guardian of Beulah's property.
Reversing, appeals court holds Section 744.3031, Florida Statute, & FL Probate Rule 5.648 require a hearing prior to appointment of an emergency temporary guardian. A hearing is not optional.
CoveyTrusts & Estates
Gudur v. Gudur, 277 So. 3d 6872d DCAJun 28, 2019Court reverses equitable distribution. Trial court must reconsider distribution of former wife's interest in medical building & former husband's student loans incurred during the marriage. Wife filed for divorce 2012 after 14 years marriage. In marriage, parties moved to Brooklyn from Houston, TX, she completes residency, they move to FL.
Former Wife grossed 31,600 per month as internist. FH gets MBA & law degree, resigns as Naples public defender, then enrolls in Ph.D. program to become professor, but was axed from it. He stays unemployed when trial concluded in 2015 - 3 years after the divorce petition was filed!
Trial court imputes income to FH after vocational expert testifies at trial. Also had a valuation expert testify about value of FW's minority interest in Naples Medical & Professional Center. Uses discount for lack of control & lack of marketability.
Trial court abused its discretion by not requiring Former Wife to pay Former Husband his share of the asset at any specific time. Any post-dissolution gain or loss in the value of the doctor's business is not marital.
Trial court's plan improperly allowed FW to benefit from postdissolution gain in the value of her business interest, but required FH to share in postdissolution loss.
Student Loans taken out during the marriage are a marital liability. But FH consolidated premarital & marital student loans. Court's attaching FH's demonstrative exhibit wasn't competent substantial evidence supporting finding of value of the marital student loans. That 1 party will receive no benefit from the other's education because of the divorce can't be considered when allocating a marital debt for student loans.
If on remand, trial court can come to a valuation for marital portion of FH's student loan debt based on competent substantial evidence of record, it should reconsider allocation of the marital student loan debt with appropriate findings supporting the distribution.
To enable trial court to allocate a marital component of student loans, FH is required to meet his burden of proof of the valuation of the marital student loans. But, if there isn't competent substantial evidence in the trial record to enable to the trial court to do that, it appears FH will be stuck with the entire student loan liability as his nonmarital liability
GudurEquitable Distribution
Will v. Will, 277 So. 3d 1822d DCAJun 28, 2019In calculating the appropriate amount of alimony, a trial court must consider the payor's living expenses when determining his or her ability to pay.
In developing & considering financial options, divorcing parties in #collaborativepractice may use one neutral financial professional to calculate & work with each party's anticipated reasonable living expenses.
Kvinta v. Kvinta, 277 So. 3d 10705th DCAJun 28, 2019Ohio couple divorced in 1979, lived together in the 80s, became common law spouses in Kansas. They finally separated in 1995. OH grants legal separation & awards Former Wife marital OH home in 2003 ruling. FW files in 2004 for divorce in OH, naming ex-husband & his current wife. OH grants divorce in 2008. FW got $350,000 ex-husband fraudulently transferred to current wife.
OH lacked jurisdiction to divide pension or retirement accounts, so enters partial property division judgment in 2008. Former Wife asks FL court in 2009 to determine & distribute marital assets & award her alimony. Trial takes place 7 years later.
On retirement, Former Husband elected "survivor annuity" option benefiting his current wife, but, the trial court correclty found, unfairly shortchanging his ex-wife. Court awards former wife lump sum ½ of pension benefits paid to ex-husband since he retired, plus interest, payable monthly, equal to half of the "life only" amount had he not elected survivor annuity option. Trial court failed to consider taxes ex-husband would have to pay on pension payments. Trial court must consider income tax consequences on distribution of marital assets & alimony.
Competing financial experts attempted valuing as of January 10, 1995 (valuation date trial court thought was equitable) former husband's ownership in marital business obtained in 1991, sold in 2006 for $2.3 million.
Valuation expert for Former Husband testified the only viable way to value business interest 11 years before he sold it was using a "coverture fraction" method: fraction equals # months assets were marital divided by total months of ownership. Then multiply by 2006 sales price, divide in half & consider taxes on sale to get former wife's share.
For calculating coverture fractions and marital components of nonmarital accounts in #collaborative #divorce cases, see free calculator at: Sampson Collaborative Law Premarital Accounts Calculator
KvintaEquitable Distribution
In re: Amendments to Rule Regulating the Florida Bar 4-7.14, 274 So. 3d 1046Supreme Court of FloridaJun 27, 2019Under Rule Regulating the Florida Bar 4-7.14, a lawyer may claim specialization or expertise in an area of practice, even if not board certified, if the lawyer can objectively verify the claim based on "education, training, experience, or substantial involvement in the area of practice".
If a lawyer practices only in certain fields, or will not accept matters except in those fields, the lawyer is permitted to indicate that. A lawyer also may indicate that the lawyer concentrates in, focuses on, or limits the lawyer's practice to particular areas of practice as long as the statements are true.
Rule 4-7.14Family Law Procedure
Martin v. Martin, 276 So. 3d 3931st DCAJun 20, 2019CASE OF FIRST IMPRESSION - the trial court correctly found a portion of pension attributable to Former Husband's premarital military service was marital. Those years of service had no retirement value until he "purchased" them with marital funds during the marriage so they'd "count" towards his civil service pension. Had ex-husband not purchased his 8+ years of military service, to apply them towards his civil service retirement, they'd have had no value for retirement. Enhanced value (zero value became worth something once Husband bought years with marital funds) was marital value. He'd have had to serve in military for 20 years to receive military retirement benefits.
Florida court draws from other jurisdictions: Pennsylvania, Louisiana, Oregon. NY & California reached the opposite result: years of premarital employment purchased during marriage were nonmarital property.
Florida's 2d, 3d, 4th Districts have held burden is on pensioner to prove if pension benefits accrued prior to marriage should not be included as a marital asset. The option & decision to purchase the prior service arose out of former husband's 2d tenure w/ civil service, which occurred entirely during the marriage.
First District holds, where marital funds are used to purchase nonvested premarital years of service, Florida law presumes the acquired years is a marital asset, subject to #equitabledistribution.
How might the parties have handled the issue in a premarital agreement or postnuptial agreement?
Martin Equitable Distribution
Hollis v. Hollis, 276 So. 3d 772d DCAJun 19, 2019Mom & Dad had strained relationship, challenges communicating, but each had been complying w/ existing timesharing arrangement. Dad moved 47 miles away. Dad testified the new distance 47 miles away didn't impact the children's routine or compliance with timesharing schedule. Parents' acrimony & problems communicating were insufficient to modify #custody & award dad majority #timesharing of 3 kidsHollis Parenting Plans
Thomas v. Cromer, 276 So. 3d 693d DCAJun 12, 2019Amended paternity judgment adopting mom's proposed parenting plan restricted dad's access to child without due process.Thomas Parenting Plans
Accardi v. Accardi, 276 So. 3d 104th DCAJun 12, 2019Trial court properly found Former husband in contempt for failing to pay $2.7 million outstanding alimony the Marital Settlement Agreement required. Parties' son testified in deposition, for ownership in dad's auto dealerships, son agreed to support dad for the rest of his life. Son was providing dad $20,000 a month.
Trial judge erred by ordering writ of arrest & bodily attachment would issue if FH fails to pay $100,000 purge amount or "any of the monthly payments" for outstanding & continuing alimony obligations.
Error to order incarceration based on future noncompliance to pay alimony. Civil contempt orders may not provide for incarceration based on future, anticipated noncompliance with a court's periodic support order.
Tritschler v. Tritschler, 273 So. 3d 11612d DCAJun 07, 2019If divorcing couple hasn't agreed by valid separation agreement to a date for identifying marital assets & liabilities, ct must use date of filing petition. But trial court may choose valuation date for assets IF date is justified & supported by findings that establish the chosen date is equitable. Trial court failed to identify valuation date for marital assets; W's accountant used different dates for assets. Court used multiple valuation dates w/o explaining why dates were proper & equitable.
For calculating coverture fractions and marital components of nonmarital accounts in collaborative divorce cases, see free calculator at Sampson Collaborative Law Premarital Calculator
TritschlerEquitable Distribution
Holder v. Lopez, 274 So. 3d 5181st DCAJun 07, 201965-year old retired tractor-trailer driver petitioned to lower or end alimony. Marital settlement agreement & final judgment were silent about what would happen on either spouse's retirement. Trial court imputed nonexistent expenses to FW in determining continued need for alimony. She was living w/ her kids to spend time with grandkids & had a bungalow at her son's house. Trial court erred by finding FH voluntarily underemployed after retirement & imputing income to him. FH testified he retired 5 years past age most truckers do. After 36 years' military service + 21 years' driving truck, he had physical limitations-back hurt, fatigue, fibromyalgia. Reasonable retirement on these facts, so court shouldn't have found voluntary underemployment and imputed income. HolderAlimony
Rokosz v. Haccoun, 274 So. 3d 4983d DCAJun 05, 2019Trial court should have granted motion to discharge lis pendens on homestead property. Divorcing spouses signed partial marital settlement agreement. FW argued FH violated status quo order by signing a 1031 exchange agreement with his dad. Under the agreement, FH swapped his NYC condo for a condo in Pompano Beach he claimed was his protected homestead + 159 Duval County parcels. FW got lis pendens on all FH properties he rec'd in swap. In partial marital settlement agreement, FH agreed a lis pendens would remain on Hialeah condo. After FH's property swap w/ dad, FW wanted lis pendens on other properties to block FH from getting rid of or encumbering assets before trial judge could determine FW's entitlement to attorney fees. But court denied FH due process. It didn't give him a chance to present evidence the Pompano Beach condo on which FW got lis pendens was his exempt homestead property. RokoszHomestead
Schot v. Schot, 273 So. 3d 484th DCAMay 29, 2019Parents inability to agree on healthcare & education decisions for kids supported award of ultimate say-so to dad on these issues. Pediatrician diagnosed 6-month child with"failure to thrive" due to a failure to gain weight. Mom didn't advise dad until nearly 3 weeks later. Mom didn't advise dad of doctor's feeding instructions, instead she told him not to feed child at night, then told doctor that dad failed to feed the children. Mom then blamed dad for child's failure to gain weight. Mom took kids to doctors 91 times in 12-months, including for weight checks right before & right after weekends with dad. Dad testifies mom overfed baby before exchanges (which judge called a "circus" & "macabre environment"), & gave daughter laxatives; baby would have explosive diarrhea on car ride home w dad. Parents inability to agree on which school kids should attend supported modification of decision-making with respect to education. But trial court's additional modifications, deletions, editions to parenting plan, which parents neither pled nor proved at trial, couldn't stand.
Florida law treats consent to "mental health treatment" for a child differently from other major decisions responsibility for which parents share. In 2016, Florida law changed to mandate provisions in parenting plans.
Sampson Collaborative Law - Shared Parenting Retained Consent to Mental Health Treatment
SchotParenting Plans
EV v. DMVH, 273 So. 3d 11322d DCAMay 29, 2019Parenting plan using Florida Supreme Court form was sufficiently specific to meet minimum requirements, including that either parent may consent to health treatment for child. But parenting plan needed to detail methods & technologies parents would use to communicate w children. That section shouldn't have been left blank. EVParenting Plans
In re: Amendments to the Florida Evidence Code, 278 So.3d 551Supreme Court of FloridaMay 23, 2019Adopts legislature's Daubert amendments (Laws of Florida 2013-107) to Evidence Code Fla. Stat. 90.702 & 90.704, replaces Frye standard for admitting expert testimony. Frye limited court's gatekeeping to challenged "new or novel scientific evidence," while Daubert expanded expert testimony subject to challenge. As gatekeeper, under Daubert, trial judge must ensure any and all scientific evidence or testimony is both relevant and reliable. DaubertEvidence
Falsetto v. Liss, 275 So. 3d 6933d DCAMay 22, 2019Falling out among men who owned 3 valet businesses. A settlement agreement broadly releasing parties from "all known or unknown" claims did not release them from future or unaccrued claims. Release of an "unknown" claim doesn't necessarily release an "unaccrued" or future claim. The terms aren't synonymous. Had a fraud claim accrued when the parties signed the agreement? If not, the unaccrued claim wasn't barred. FalsettoMarital Settlement Agreements
King v. King, 273 So. 3d 2332d DCAMay 22, 20192d DCA trial court abused discretion in awarding husband marital home purchased during marriage w/o findings supporting unequal distribution of marital assets. If the court determines shared parental responsibility would be detrimental, it may order sole parental responsibility. Under "sole parental responsibility," one parent decides for the child. - Section 61.046(18), Florida Statutes.
Read More at Sampson Collaborative Law Shared and Sole Parental Responsibility
KingEquitable Distribution
Alexander v. Harris, 278 So.3d 721 2d DCAMay 17, 2019Trial court could garnish discretionary payments to dad from a special needs spendthrift trust to satisfy his child support obligations. Mom argues spendthrift provisions of special needs trust aren't enforceable against a child support order. Discretionary disbursements aren't protected from continuing garnishment for support. Mom exhausted traditional enforcement of child support order: dad's sole available income for paying support was the trust.AlexanderTrusts & Estates
Farid v. Rabbath, 273 So. 3d 2211st DCAMay 16, 2019Order redistributing property distribution violated equitable distribution & final judgment. Both parties violated final judgment. Court improperly changed the property distribution the final judgment fixed as a matter of law.FaridEquitable Distribution
Alliant Tax Credit 31, Inc. v. Murphy, 924 F. 3d 113411th CirMay 15, 2019As divorce settlement agreement required, Georgia judgment debtor transferred millions in cash, commercial paper, stock shares, a mountain cabin, furniture, apartment complex. After divorce settlement, Companies got judgment against now judgment-proof former husband in Kentucky. Sued in federal court in Georgia under Uniform Fraudulent Transfers Act, amended by Uniform Voidable Transactions Act. Company claimed divorce settlement & asset transfers were ruses to evade ex-husband's creditors. Jury found 23 transfers were fraudulent; awarded company $1 million punitives against ex-Husband, $100,000 against ex-wife. Discusses domestic relations exception to federal diversity jursidiction. Stone v. Wall, 135 F.3d 1438, 1441 (11th Cir 1998), certified question answered 734 So. 2d 1038 (Fla. 1999). Federal judiciary traditionally abstained from deciding domestic relations cases. Ingram v. Hayes, 866 F. 2d 368, 369 (11th Cir 1988). But 3d party companies (parties to the federal court proceeding) weren't parties to the divorce (state court proceeding). Even if GA divorce judge had to ensure property distribution was "equitable," Federal judgment holders were not barred from proving ex-W gave no "reasonably equivalent value" for transfers" under divorce settlement. Companies weren't parties to divorce case. AlliantMarital Settlement Agreements
Famiglio v. Famiglio, 279 So. 3d 7362d DCAMay 10, 2019Every word counts in a #prenuptial agreement, even "a" the smallest word in English. It meant the difference in outcome of $1.5 million. Under #premarital #prenuptial agreement, length of marriage at the time "a" petition for dissolution was filed determined corresponding amount owed under escalating schedule of $ for each year of marriage. W filed "a" petition after 7 years; didn't serve it; filed another petition after 10 years. At 7, she'd get $2.7 million; at 10, $4.2 million. Both H & W believed prenuptial agreement was clear, unambiguous. Only evidence at trial was the Prenuptial Agreement. No one claimed latent ambiguity. Trial court side-stepped problem by tacking words on to clear provision. Trial court's invocation of the absurdity canon of contractual construction recounted hypothetical scenarios that could be deemed absurd if the court were to apply the parties' competing interpretations under those hypothetical facts. Trial court conflated an interpretive reductio ad absurdum argument about the provision w/ a finding the provision actually yielded an absurd result. But $2.7 million W would get wouldn't be an absurd result. Applying the natural & plain meaning of "a", ties variable alimony to the singular occurrence of filing "a petition", which meant the first time such petition was filed, even though never served. FamiglioPrenuptial & Postnuptial Agreements
Goley v. Goley, 272 So. 3d 8001st DCAMay 06, 2019Parties bought 120 acres bordering FW's parents' land & titled in parents' names. Oral agreement that H & W would pay property loan then W's parents would transfer title to ½ property to H & W. Parties paid off loan, but W's dad refused to transfer title as promised orally. Parents weren't parties to or witnesses in divorce. Property ownership or interests in it weren't properly before the trial court because the titled property owners (parents) weren't parties to the litigation. Following Sandstrom v. Sandstrom, 617 So. 2d 327 (Fla. 4th DCA 1993), court reverses trial ct's decision property titled in W's parents' names was marital; neither party filed claim against W's dad, who wasn't a party in dissolution proceedings. Trial ct erred in finding parties had an equity interest & claim to the 120-acres. FW has no right to participate in its future appreciation & may never even get the property - her dad has refused to transfer title. Goley Appeals court upholds trial ct unequal distribution giving FW > 50% of marital assets in exchange for her claims for alimony & attorney fees & finds that excluding 120-acre property did not affect alimony or attorney fees. GoleyProperty
Stone v. McMillian, 270 So. 3d 510 1st DCAMay 02, 2019Neighborly feud that included uncivil, immature acts, didn't warrant injunction against stalking. After altercation (neighbor 1 honked at neighbor 2 & his dog) & angry letter from N2, N1 took every innocuous act by N2 as aggression & intimidation. N1 scrupulously logged each time N2 walked by on his loop (same one for 7+ years!), N1 installed motion-sensing sprinkler to soak him when he walked dog on adjacent vacant city lot; N2 put dog's "gift" in N1' trash once on trash day. For stalking, the person willfully, maliciously, & repeatedly follows, harasses, or cyberstalks another. "Harass" means to engage in a course of conduct directed at a specific person which causes substantial emotional distress & serves no legit purpose. Courts use a "reasonable person" rather than a subjective standard in determining if an incident causes substantial emotional.StoneDomestic Violence
DiPasquale v. DiPasquale, 275 So. 3d 6862d DCAApr 24, 2019Look to the effective date of settlement agreement for determining whether parties contemplated a substantial change in circumstances.DiPasqualeMarital Settlement Agreements
De Diego v. Barrios, 271 So. 3d 11813d DCAApr 24, 2019Reverses imposition of equitable lien on homestead when disabled FH failed to pay timely FW 1/2 home's appraised value. Marital home titled in FH's name only, which he bought before marriage, became a marital asset: its value had been mortgaged 2X; FW signed mortgage note both times; both mortgages were paid off during marriage using marital funds. Although homestead property may be subjected to equitable liens where fraud, reprehensible or egregious conduct is demonstrated, trial judge took no sworn testimony or evidence, but based its findings of egregious conduct solely on FW's unsworn motion to enforce & lawyers' argument. Appeals ct sends it back to trial ct. If, on remand, trial ct reconsiders imposing equitable lien on marital home based on FH's alleged egregious conduct, it should make specific findings based on evidence & testimony at a hearing. Case ongoing since 2014. How much has this dispute cost the parties in money, time & emotional energy? How much more will it cost them? Having invested this much, are they too entrenched in positions to achieve peaceful resolution? Might collaborative practice have helped w/ a long-term, satisfying resolution? De DiegoHomestead
Florida Investment Group 100, LLC v. Lafont, 271 So. 3d 14th DCAApr 24, 2019Court applies contract principles to find buyer breached contract to buy home: Contract construction principles' equally applicable to prenuptial agreements, postnuptial agreements, & collaborative marital settlement agreements - are: In construing a contract, the legal effect of its provisions should be determined from the words of the entire contract. The actual language used in the contract is the best evidence of the intent of the parties, and the plain meaning of that language controls.
The court must apply the parties' contract as written, not "rewrite" it under the guise of judicial construction. Courts must not read a single term or group of words in isolation.
An interpretation of a contract which gives a reasonable, lawful and effective meaning to all of the terms is preferred to an interpretation which leaves a part unreasonable, unlawful or of no effect.
No word or part of an agreement is to be treated as a redundancy or surplusage if any meaning, reasonable and consistent with other parts, can be given to it. Courts will generally strive to interpret a contract based on the definitions contained within the contract. Where parties to a contract take pains to define a key term specially, that definition governs their dealings under the contract.
Florida Investment Group 100Prenuptial & Postnuptial Agreements
Estape v. Seidman, 269 So. 3d 565 4th DCAApr 24, 2019Divorcing parents agreed to use psychologists as reunification therapist for children. Dad accused doctor of breaching psychotherapist-patient privilege. See 490.0147, Fla. Stat. Doc asserted "litigation privilege" insulated him; that is, because communications occurred within litigation, they weren't subject to the psychotherapist-patient privilege. Statutory grant of confidentiality of psychotherapist-patient communications prevails over common law "litigation privilege." Trial ct needs to resolve fact issue about doc & dad's relationship as psychotherapist-patient. During #divorce, dad was prevented form seeing kids, until 2 psychologists recommended reunification w/ dad. Parents agreed to commence visitation, w/ doc to serve as reunification therapist. Doctor email Guardian ad litem & nixed 1st visit, relating some info dad communicated to him in short session. More litigation ensued. Dad sued doc for breach of fiduciary duty & negligence. Before 1st session between dad & doc, doc had him sign form including a confidentiality statement that info shared would be kept strictly confidential & not disclosed w/o written ok, except for danger to signer or children. Statutory interpretation: interpret statutes by their plain meaning. No listed grounds for waiving statutory privilege applied to communications reunification therapist made in divorce case. All isn't lost for doctor: he contended dad wasn't his patient, because the form dad signed applied only to those to whom the doc was giving TREATMENT. Florida Legislature did not intend absolute immunity apply whenever a court appoints a therapist in dissolutions of marriage. 61.122, re parenting plans, 61.125 (parenting coordinators), don't provide for absolute immunity. Under 64B19-19.006, Fla. Administrative Code, psychotherapists performing evaluations must explain to person being evaluated the limits of confidentiality. The statutes don't use "reunification therapist" or explain reunification therapist's duties. Court order or parties' agreement should clarify the intended relationship & if the appointed MHP is to provide reports to the court itself.
May 2, 2019 - Judicial notice in family law cases - Florida Surpreme Court adopts 90.204(4), Florida Statutes (effective May 12, 2014) to the extent procedural. In family cases, the court may judicially notice any matter in 90.202(6) (US court records) when imminent danger to persons or property has been alleged and it's impractical to give prior notice of intent to take judicial notice.
Pelphrey-Weigand v. Weigand, 283 So. 3d 8222d DCAApr 17, 2019Judge Northcutt explains difference between res judicata and collateral estoppel. Collateral estoppel: is concerned with previously determined issues of fact. For an issue to be precluded under collateral estoppel, an identical issue must have been (1) presented in a prior proceeding, (2) critical & necessary for the prior determination, (3) subject to a full & fair opportunity to be litigated, and (4) actually litigated. Res judicata: precludes relitigating a cause of action. It also bars considering issues that could've been but weren't raised in 1st case. On fee motions jurisdiction over which trial court hadn't reserved in final judgment or decree, trial court's ended on entry of a judgment or final decree & when time for rehearing or new trial has expired or been denied. Pelphrey-WeigandFamily Law Procedure
Levy v. Levy, 268 So. 3d 8114th DCAApr 17, 2019Trial court could award uncontested alimony under durable power of attorney spouse before incapacity signed authorizing agent to support other spouse. Durable power of attorney signed marital settlement agreement saying agent could support other spouse in customary standard of living, & later incapacity wouldn't terminate that authorization. By denying alimony based on H's potential incapacity, court failed to give effect to his intent under the durable power of attorney to designate agent to act on his behalf notwithstanding his subsequent incapacity. LevyAlimony
Bowen v. Volz, 271 So. 3d 11621st DCAApr 11, 2019Trial court divided the parties' marital business & distributed to each 50% ownership, because they presented little evidence of its worth. Equitable distribution & business valuation of closely held family company: Improper leaving exes in closely held business together as business partners, an "intolerable" financial arrangement. 1st DCA follows Menendez v. Rodriguez-Menendez, 871 So. 2d 951 (Fla. 3d DCA 2004); Robbins v. Robbins, 549 So. 2d 1033 (Fla. 3d DCA 1989). Garrison v. Garrison, 255 So. 3d 877 (Fla. 4th DCA 2018). Bowen v. Volz endorses Menendez remedy: divorcing spouses must present proper evidence of value of closely held marital business. Court must award business to 1 spouse & devise a distribution plan that least interferes w/ ongoing business, yet is practical & benefits both spouses. Collaborative divorce offers parties options to plan for post-divorce ownership & operations of closely held business in ways judges can't impose at trial. BowenEquitable Distribution
Benitez v. Eddy Leal, PA, 272 So. 3d 5063d DCAApr 10, 2019Attorney's charging lien denied as untimely. Late notice to former client fatal (after final judgment entered, before m for reh'g resolved).
Other grounds for denying charging lien: no written fee agreement w/ client; no evidence of express or implied understanding for payment of attorney fees out of recovery.
BenitezAttorney Fees
Corrigan v. Vargas, 277 So. 3d 6425th DCAApr 05, 2019Dad couldn't pursue motion for relief from order approving mediated agreed parenting plan setting child support at $0, in exchange for 50-50 timesharing, where any fraud was perpetrated by dad & his lawyers. Dad's unclean hands & misdeeds brought about results he sought to undo - agreeing to forego child support from child's mom. He falsified his income, financial affidavit; he agreed to lie about income to get more timesharing. CorriganMarital Settlement Agreements
Johnson v. Johnson, 268 So. 3d 2035th DCAApr 05, 2019Reversed order approving parenting plan that gave dad 9 overnights/month. Trial court incorrectly awarded retroactive child support w/o considering dad's mortgage & bankruptcy payments made during divorce case.JohnsonParenting PLans
Sibley v. Estate of Sibley, 273 So. 3d 10623d DCAApr 03, 2019Administratively dissolved corporations: 607.1421(3), Florida Statutes provides: A corporation administratively dissolved continues its corporate existence but may not carry on any business except that necessary to wind up and liquidate its business and affairs under s. 607.1405 and notify claimants under s. 607.1406. Under Charitable Trust, upon dissolution of the Curtiss F. Sibley Charitable Foundation, all remaining assets & money in trust estate were ordered to go to Fellowship House of South Miami. 607.1422(3) states reinstatement of a dissolved corporation relates back to and takes effect as of the effective date of its administrative dissolution & the corp resumes carrying on its business as if the administrative dissolution had never occurred. But, 607.1422(3) reinstatement doesn't apply to determining at a fixed time (date settlor died), when entity "was no longer in existence" under trust's time-certain testamentary provision. A basic tenet in the construction of trusts is to ascertain the intent of the settlor and to give effect to this intent. SibleyTrusts & Estates
Rowe-Lewis v. Lewis, 267 So. 3d 10394th DCAApr 03, 2019Final judgment was silent on value of solely-owned S-corporation family towing business. Judge should've allowed evidentiary hearing on Rule 12.540(c) mot to set aside final judgment; ex-W alleged ex-H's financial affidavit & testimony were fraudulent & specified undisclosed assets & income sources.Rowe-LewisEquitable Distribution
Dorsey v. Dorsey, 266 So. 3d 12821st DCAApr 03, 2019Pensacola case; 2 kids, 23 year marriage; 7 homes, 7 vehicles, airplane, private school. Homemaker mom worked temporarily & sporadically as part-time clerk & admin for 1 of FH's 3 marital businesses. Former Husband gets 3 businesses & debt, 3 residential properties, 6 vehicles, trailer. Former Wife gets 2 residences, $ from sale of 2 properties, a vehicle, her jewelry, cash, equalization payment. Distributing to managing spouse business debt he incurred when other spouse isn't involved in the business is within trial court's discretion. Appeals court is prohibited from engaging in piecemeal review of trial court's equitable distribution scheme. Upheld trial court's overall equal apportionment of assets & liabilities. 2-day trial, then 2 more hearings. Consider avoidable steps (and associated attorney fees and costs) in litigation by choosing collaborative approach to resolve divorce issues. Sampson Collaborative Law Cost of Collaborative Divorce v. Cost of LitigationDorseyEquitable Distribution
Andre v. Abreu, 272 So. 3d 4673d DCAMar 27, 2019Wrong to sanction mom for contempt by modifying timesharing. To modify timesharing, parent must invoke court's jurisdiction by filing a pleading for modfication, then prove grounds.AndreContempt
Dray v. Shendell, 271 So. 3d 1403d DCAMar 20, 2019Can't undo irrevocable trust, where settlor was subject to no coercion, fraud, misrepresentation, overreaching, or undue influence when settlor signed trust documents, & elements of unilateral mistake failed. DrayTrusts & Estates
Miller v. Miller, 186 So. 3d 1128 4th DCAMar 16, 2019To include a dissipated asset in equitable distribution scheme, need evidence of spending spouse's intentional dissipation or destruction of asset. Trial court must make specific finding that dissipation resulted from intentional misconduct.MillerEquitable Distribution
Frerking v. Stacy, 266 So. 3d 273 5th DCAMar 15, 2019Imputing income: Court must focus on recent work history, current (not potential) occupational qualifications, and prevailing earnings in community. Collaborating parties may contract to different levels of imputing income and tiered support coupled with retraining milestones - completing a degree with in X time. Trial court improperly awarded durational rather than permanent alimony in 18+ year marriage & concluded spouse could immediately work as a full-time public school teacher (she'd never taught full time), earning more than 2X salary she'd ever earned. A party's best efforts to find work don't include retraining, but only finding a job for which the party is already qualified. FrerkingAlimony
Snyder v. Florida Prepaid College Board, 269 So. 3d 5861st DCAMar 13, 2019When parties say their agreement is subject to statutes "as amended from time to time," they intend amendments to become part of the controlling document. When parties contract about a matter a statute regulates, they're presumed to have entered into their agreement with reference to the statute, which becomes part of the contract, unless the contract discloses a contrary intention. Courts must construe contracts to give reasonable meaning to all provisions of a contract, rather than one which leaves part of the contract useless or inexplicable. For Florida marital settlement agreements & premarital agreements incorporating Florida law, under what circumstances must the parties' contract express their intention to override Chapter 61 (dissolution of marriage) Chapter 732 (estate rights of a spouse on death)? SnyderMarital Settlement Agreements
Mattison v. Mattison, 266 So. 3d 2585th DCAMar 08, 2019Trial court erred when it determined Former Husband's income for child support purposes to be his anticipated gross income from self-employment w/o factoring in ordinary & necessary expenses he incurs to produce this income. Trial court erred in conflating 2 methods for calculating half equity interest in marital home. Each spouse was entitled to either half equity in home as of valuation date (filing date) w no reduction for mortgage, taxes, & insurance payments on home post-separation or, alternatively, half equity in home based on its appreciated value at time of trial and the reduced mortgage balance, less half the net amount of credits to the spouse who paid post- separation mortgage, taxes, & insurance (reduced by reasonable rental value of home). FH correctly contends ruling results in his reimbursing FW for ½ her mortgage, taxes, & insur payments on home while she reaps 100% of benefits from appreciation in home's value & reduced mortgage loan balance, plus tax benefits for mortgage interest & property taxes deductions. Section 61.075(6), Florida Statutes (2018) REPLACES KAAA V. KAAA FORMULA. For a calculator to help collaborative practice teams consider possible marital components of nonmarital real property, see Sampson Collaborative Law Nonmarital Real Property CalculatorMattisonChild Support
Laux v. Laux, 266 So. 3d 2174th DCAMar 06, 2019If parties intend to waive future attorney fees for modification or enforcement, put specific waiver in marital settlement agreement. LauxMarital Settlement Agreements
Welton v. Welton, 267 So. 3d 6 4th DCAMar 06, 2019Except when dissipation of assets results from intentional misconduct, it's generally error to include dissipated assets in equitable distribution. No findings Husband's liquidating assets & paying marital debts was intentional misconduct. 4th DCA - On ability to pay alimony, finding husband would receive 1/3 of mom's estate w/o regard to deduction of costs, debts, or expenses was an abuse of discretion. WeltonEquitable Distribution
Lightsey v. Davis, 267 So. 3d 124th DCAMar 06, 2019Section 61.13(2)(c)2., Florida Statutes, provides that "[t]he court shall order that the parental responsibility for a minor child be shared by both parents unless the court finds that shared parental responsibility would be detrimental to the child." Finding shared parental responsibility would be detrimental is necessary, but the court may make it on the record or in the final judgment. Failure to include finding of detriment doesn't render judgment fundamentally erroneous.LightseyParenting Plans
Phillips v. Phillips, 264 So. 3d 11292d DCAFeb 20, 2019Lost Heaven Trust, Encore Trust, and Legacy Trust. In dissolution case, Court quashes trial court's order sustaining nonparties' (trusts) objections to production of documents and trial court's quashing subpoenas for records.
For hearing on Wife's requests for temporary support and attorney fees, she sought to subpoena updated financial records from the Trusts. Trusts & Husband failed to object to earlier similar discovery requests. Trusts regularly disbursed funds to or on behalf of Husband in amounts he failed to show on his financial affidavit. He magnanimously stipulated he could afford "whatever the trial court ordered." But the court's ruling based on that stipulation prevented the Wife from getting evidence she needed to meet her burden of proof under 61.16, Florida Statutes of the parties' relative financial needs and abilities. Without info Wife needed relevant to her claims for temporary support & attorney's fees, her claims were effectively eviscerated because she was prevented from offering evidence to establish the Husband's financial resources and ability to pay "information that was required to enable the trial court to make the findings required of it by statute."
The Court distinguished cases involving famous parties with reasonable concerns about disclosing assets to the media:
(1) Woodward v. Berkery, 714 So. 2d 1027 (Fla. 4th DCA 1998) (protecting Tom Jones from child's mother's attempt to get discovery, where he indisputably had over $89,000/month income & stipulated to his ability to pay any amount of child support awarded);
(2) Granville v. Granville, 445 So. 2d 362 (Fla. 1st DCA 1984), protecting a famous author and market forecaster, who stipulated to his financial ability and willingness to pay a reasonable increase in child support, from "almost oppressive interrogatories" and request for production former wife served seeking extensive financial information.
(3) Palmar v. Palmar, 402 So. 2d 20 (Fla. 3d DCA 1981), protecting husband from discovery in a very short-term marriage (2-years) where he stipulated he could pay whatever was awarded.
PhillipsAttorney Fees
Cancino v. Cancino, 273 So. 3d 122 3d DCAFeb 13, 2019Reversed indirect criminal contempt probation order finding mom violated mediated marital settlement agreement, parenting plan, & shared parenting. Dad alleged mom (1) mom got child diagnosed by pediatrician w ADD w/o telling him prior to appointment, then failed to notify him. Dad alleged mom (2) signed consent form to screening at school for child's accommodation plan & (3) failed to provide dad prior notice of non-emergency medical & dental appointments for children. Dad alleged mom (4) made appointment for child to enroll in an experimental visual therapy program, but gave dad 45 minute notice of appointment, to which he objected.
Probation order had no clear, precise order mom intentionally violated. How mom was to comply w courts command was unclear. A finding of contempt can't be based on violating "merely inherent" provisions in an order or its "spirit" or "intent." Finding contempt requires violating the letter of an order, not its spirit.
Would experimental visual therapy for Attention Deficit Disorder constitute "mental health treatment" consent to which parents sharing parental responsibility each retains without having to confer with each other?

Read more at Sampson Collaborative Law Retained Consent to Mental Health Treatment

How may parents, using collaborative practice, address protocol for "mental health treatment," unilateral consent to which each parent retains? See blog at: Sampson Collaborative Law Clarifying Parents' Consent About Child's Mental Health Treatment

For example language, see Sampson Collaborative Law Example Language for Collaborative Team Using Definitions of Mental Health Treatment
Matthews v. Matthews, 264 So. 3d 3552d DCAFeb 08, 2019Failure to award reimbursement of half payments spouse made - 16 months - on mortgage & home equity line of credit during divorce proceedings was wrong.MatthewsEquitable Distribution
Mendez v. Lopez, 271 So. 3d 723d DCAFeb 06, 2019Temporary care by an extended family member who has signed, notarized consent of child's legal parents or is caring full time as substitute parent for child may ask circuit court to determine temporary or concurrent custody of minor child. Chapter 751, Florida Statutes - Miami-Dade County adult brother's petition for temporary custody of minor sister was legally sufficient. Trial court erred by dismissing it. Trial court's concluding "certain immigration benefits" to petitions for temporary care by extended family members being granted "in circumvention of existing immigration laws," was no basis to deny a legally sufficient petition. Adult son of Guatemalan parents attached both parents' consent. Guatemalan parents did not waive their parental rights or consent to determination of dependency of their minor daughter and re-establish their custody of her. Trial court on remand must conduct hearing on petition for temporary custody by extended family member (adult son of minor sister) & hear evidence of child's need for care by petitioner. Unless parents object, trial court "shall award temporary or concurrent custody" of child to petitioner "if it is in the best interest of the child." If the parents object to petition for concurrent custody, the court must let petitioner convert petition to a request for temporary custody. Petitioner would then have to prove by clear & convincing evidence the child's parents are unfit to care for child because they abused, abandoned, or neglected her. MendezTimesharing
Yost-Rudge v. A to Z Properties, Inc., 263 So. 3d 954th DCAFeb 06, 2019Spouse must agree to sale of homestead protected property. Injunction for municipal violation (junk, improper structures) that prevented owners from returning to the property wasn't abandonment that destroyed homestead protections. Wife's husband sold property to buyer, but wife wasn't a party to warranty deed. In quiet title action, Wife alleged she'd intended to return to homestead property & had been trying to return it to habitable condition, & had never claimed another homestead. Under Article X, section 4 of Florida Constitution, a married owner or a homestead property may not alienate it w/o joinder or consent of other spouse. Once homestead status is established, owners can lose it by abandoning it, but both the owner & his family must have abandoned it. A finding of abandonment of homestead property requires a "strong showing" of intent not to return to the homestead. An owner's involuntarily ceasing to reside on the property doesn't constitute abandonment. Courts have upheld homestead protections even when property has been left unoccupied.Yost-Rudge Homestead
Sarazin v. Sarazin, 263 So. 3d 2731st DCAFeb 05, 2019Attorney fees denied to spouse whose family paid them, with no proof of obligation to repay family. With no obligation to repay fees the family paid, spouse had no financial need relating to fees.

Consider avoidable steps (and associated attorney fees and costs) in litigation by choosing collaborative practice to resolve divorce issues.
Sampson Collaborative Law Cost of Collaborative Divorce v. Cost of Litigation
Sarazin Attorney Fees
Lizzmore v. Lizzmore, 263 So. 3d 2681st DCAFeb 04, 201936 yr marriage. Parties' financial affidavits showed deficits. But FH who earned $13/hour as a valet - listed $1,553 household expenses he wasn't actually paying because house was in foreclosure. Former wife, in poor health, couldn't get more alimony than she asked for in her petition ($100/week). Case went on 4 years. How much did the parties spend on fees? Might this struggling couple have benefited from a reduced fee collaborative team approach? LizzmoreAlimony
Rawson v. Rawson , 264 So. 3d 3251st DCAFeb 04, 201928-year marriage; parties moved often; FW served on and off for 20 years in US Navy. 4 children; 1 minor. FW borrowed $87,500 from her dad for home + $100,000 for legal expenses. Trial court awarded FW the FH's marital share of her military retirement as lump sum alimony. Unequal distribution through award of lump sum alimony enabled the court to do equity and justice between the parties. A pension may be considered a source of paying permanent periodic alimony instead of being equitably divided.RawsonEquitable Distribution
Lennon v. Lennon, 264 So. 3d 10842d DCAFeb 01, 2019Statutory change in 2016 to section 61.13(2)(b)3 - After July 1, 2016, failure to include in a parenting plan or final judgment a provision that either parent alone may provide consent for a child to receive mental health treatment is legal error. remanding for trial court to include missing "retained consent to mental health treatment" provision in final judgment that ordered shared parental responsibility.LennonParenting Plans
Hall v. Hall, 277 So. 3d 6395th DCAFeb 01, 2019Spouse divorcing doctor could subpoena some non-party (Brevard Physician Associates) medical practice's financial records. One (of 70) doctor's ownership interest was contested in florida divorce. Operating Agreement of medical professional limited liability corporation (PLLC) predetermined value of doctor's interest as "Book Value," binding on all owner-members, but only under specific circumstances not applicable in divorce of 1 doctor who'd continue. Husband argued divorce from doctor-wife would trigger no conditions invoking book value formula in PLLC's operating agreement. Wife would remain an owner/member after the divorce. Husband could get reasonable discovery from medical practice to determine actual value of W's interest in Brevard Physician Associates, under a fair market valuation or other reasonable valuation methodology. Some information about value of non-party medical practice may shed light on doctor's ownership interest, therefore, was discoverable. Non-party medical practice must produce all stock option plans, option agreements, other plans providing vested benefits in practice's stock, list of options granted LIMITED to those that apply to wife's interest. Non-party medical practice must produce all closing statements & purchase agreements related to all medical practice stock since 2012, any stock appraisals in last 5 years, & description of any bona fide offers to purchase the medical practice in last 5 years. HallEquitable Distribution
Julia v. Julia, 263 So. 3d 7954th DCAJan 16, 2019Court failed to make finding that no form of alimony other than permanent was fair or reasonable. When 1 parent pays other's mortgage or housing expenses on marital home, it's an in-kind contribution for calculating retroactive child support. Between parties' 2d marriage to each other, ex husband earned pension benefits the trial court should have determined were his nonmarital contributions.JuliaAlimony
Griffitts v. Griffitts, 263 So. 3d 2205th DCAJan 11, 2019Reversing 3 years' durational alimony. Former husband didn't overcome rebuttable presumption permanent alimony is appropriate after a long-term marriage. Mom sacrificed a career to be primary caregiver for the parties' four children. Even after imputing income to her, the parties would have significant income disparity. Mom's parents "invested" in marital home so she could stay in it indefinitely without having to make mortgage payments, but, once she would sell it, they'd recoup their "investment" plus interest. At trial, that amount exceeded the property's fair market value.No evidence supported findings mom's parents' significant financial assistance was "continuing and ongoing, not sporadic" or their gifts would continue.GriffittsAlimony
Bolden v. Bolden, 263 So. 3d 2161st DCAJan 10, 2019Trial court miscalculated the marital portion of retirement pay for equitable distribution. When allocating nonmarital & marital components of retirement accounts, court must calculate the "coverture fraction" the time employee married while participating in retirement plan divided by total time in plan. For calculating coverture fractions and marital components of nonmarital accounts in collaborative divorce cases, see free calculator at Sampson Collaborative Law Premarital Account CalculatorBoldenEquitable Distribution
Clarke v. Stofft, 263 So. 3d 844th DCAJan 09, 2019Reverses giving mom ultimate decision-making authority over "all major decisions affecting the welfare of the children" without specifying areas over which she could exercise that authority. Open-ended, broad language giving a parent ultimate say-so over major decisions "including, but not limited to" listed areas is contrary to Florida law. ClarkeParenting Plans
Fox v. Fox, 262 So. 3d 7894th DCADec 19, 2018Failure to comply with statute's requirement of fact findings to support alimony award is reversible error regardless of whether loser moves for rehearing. Parties settled everything but alimony; went to trial on that. Duel between preservation of error for appeal and reversible error. 4th DCA certifies conflict with 1st, 2nd, 3rd, 5th DCAs & says no motion for rehearing is required. A family court judge should know the statutory requirements in rendering a decision on alimony, equitable distribution, child support. Failure to make required factual findings isn't error preservation rules were designed to avoid; those rules were designed to prevent a party from blindsiding judge by raising an issue on appeal not brought to trial court's attention.FoxAlimony
Schroll v. Schroll, 227 So. 3d 232 1st DCADec 14, 2018In #divorce of couple married 35 years ("They disagreed about much."), judge improperly used contempt powers to jail ex-husband to enforce monetary judgment in equitable distribution scheme. Courts can use contempt powers to compel actions to facilitate property transfers, but can't convert a gen'l duty to pay $$ into something enforceable by contempt by characterizing it as an obligation to perform a specific act.SchrollContempt
Bro v. Bro, 262 So. 3d 2182d DCADec 14, 2018Court had no authority to order sale of property of family business not a party to #divorce lawsuit. Court's disbelief of 1 party's uncontradicted testimony on how marital funds were spent (to pay marital expenses or not) isn't enough to include the dissipated funds in equitable distribution.BroEquitable Distribution
Walsh v. Walsh, 262 So. 3d 2125th DCADec 14, 2018Trial judge committed many errors. Parties' interpretations of "gross income" "periodic income" & "periodic alimony" differed. Court misinterpreted Marital Settlement Agreement, improperly excluded parol evidence about intended meaning of words by finding them clear & unambiguous. The MSA definitions didn't clearly show parties meant to exclude from income for calculating alimony "incentive based payments or bonuses" & other types of income. Appeals ct drew from Miriam-Webster's Collegiate Dictionary on plain meaning of words, but definitions revealed 2 reasonable interpretations of "periodic income" used in MSA. Trial court should've allowed extrinsic evidence about parties' intent. Trial court erred by denying Wife's requst for attorney fees: marital settlement agreement had no express waiver stating the parties waived their right to attorney fees under section 61.16, Florida WalshMarital Settlement Agreements
Kenney v. Goff, 259 So. 3d 1404th DCADec 12, 2018Trial court erred by treating lump sum rehabilitative alimony as property settlement. The Marital Settlement Agreement read as a whole & parties' testimony show they intended it was exclusively spousal support.
Pipitone v. Pipitone, 23 So. 3d 131 (Fla. 2d DCA 2009) 4 factors for determining if lump sum alimony is for spousal support or equitable distribution. Look at substance of obligations, not necessarily parties' characterization. The conclusive 1st Pipitone factor is whether lump sum alimony payments are made in exchange or consideration for transfer of property interests; if so, they're equitable distribution payments, not spousal support. Parties can always agree to support obligations that are nonmodifiable, nonterminable on death, & nondeductible. Lump sum alimony, whether property settlement or spousal support, isn't dischargeable under Ch 7 bankruptcy. 11 USC Section 523(5) (15); In re Okrepka, 533 BR 327, 333 & n. 16 (Bankr. D. Kan. 2015). Property settlement in divorce is dischargeable in a Ch 13, but not Ch 7, bankruptcy.
KenneyMarital Settlement Agreements
McAbee v. McAbee, 259 So. 3d 134 4th DCADec 12, 2018Florida trial court didn't communicate with VA ct when it exercising temporary emergency jurisdiction under Uniform Child Custody Jurisdiction and Enforcement Act. Trial court failed to consult with the VA court "where custody proceedings had been ongoing for years, & which made a custody determination 2 months earlier; before making its own custody determination, in violation of mandatory directive of UCCJEA. McAbeeTimesharing
Palmateer v. Palmateer, 242 So. 3d 1072 2d DCADec 05, 2018Precedent & statutes required reversal of agreed upon income deduction order. IDOs & QDROs can't be used to force direct payment to a nonparticipating spouse of a spouse's municipal pension benefits for equitable distribution.PalmateerEquitable DIstribution
Subramanian v. Subramanian, 260 So. 3d 10754th DCADec 05, 2018After contentious 10-day trial where ex-husband represented himself, he had to pay 60% of ex-wife's trial fees & costs. She'd incurred trial & appellate fees totaling $578,693.75.
Amended Florida Family Law Rule of Procedure 12.407 (December 13, 2018) is intended to protect children who may be harmed by unnecessary involvement in family law proceedings.
Children who may be harmed by unnecessary involvement in family law proceedings include those who may be the subject of the family law case & those who are witnesses, potential witnesses, or extensively involved w/ the family.
SubramanianAttorney Fees
Puhl v. Puhl, 260 So. 3d 3234th DCANov 28, 2018Agreed parenting plan gives mom ultimate decision making when dad & she can't agree. Dad alleges mom took child to therapy the child doesn't need without first consulting him. But, before entry of final judgment, medical professional diagnosed child with condition for which mom sought treatment. No substantial change in circumstances - facts don't support finding a "substantial, material, and unanticipated change in circumstances."PuhlParenting Plans
Seligsohn v. Seligsohn, 259 So. 3d 8744th DCANov 28, 2018Court erred by awarding dad ultimate decisionmaking authority over all issues if parents, who had shared parental responsibility, disagreed. SeligsohnParenting PLans
Saponara v. Saponara, 261 So. 3d 5704th DCANov 21, 2018Coast Guard dad stationed in Calif; mom & child move to MD during divorce. 11-day trial. Judge orders timesharing allowing dad to visit child 12 times/year - 10 in MD (close to Coast Guard base for dad's work), 2 in Calif. 7 months after final judgment, mom seeks relocation to NC. Dad objects - closest Coast Guard base to Charlotte, NC is 3 hours away. 2-day hearing. Judge oks mom's relocation conditioned on all of dad's timesharing taking place in Calif. When court approves relocation petition, it has discretion to adjust timesharing to ensure child has "frequent, continuing, and meaningful contact with the non-relocating parent."SaponaraTimesharing - Relocation
Olaechea v. Olaechea, 260 So. 3d 387 3d DCANov 21, 2018An equitable lien may be imposed on homestead property where funds obtained through fraud were used to purchase the homestead, and even where one spouse was not a party to the fraud.OlaecheaHomestead Property
RB v. BT, 259 So. 3d 9102d DCANov 09, 2018No evidence supported restricting dad's timesharing with child to St. Petersburg or Austin. Parents' personal animosity created potential for either of them to attempt to capitalize on the restricted locations of dad's time-sharing. Trial ct needed to fix that to avoid unnecessary litigation.RBTimesharing
Vinson v. Vinson, 282 So. 3d 1221st DCAJan 07, 2019Divorcing parties took many detours before final hearing. Temporarily agreed on equal timesharing for 3 yr old daughter. 8 months later, enter new timesharing agreement. Parents agreed dad gets majority of time, mom all of summer, every 3 or 4 day weekends, alternating holidays. Each parent's attorney confirmed before ct reporter parents were ok w/ new plan. 3 days before final hearing, mom moves to set aside agreement. Says she was afraid, anxious & her own attorney pressured, coerced her into signing it. Trial ct considered witnesses' credibility. Ct correctly denied mom's motion to set aside timesharing plan, adopted it, incorporated it in judgment. Judge must take testimony to ascertain child's best interests. Trial courts are in a better position than appellate courts "to discern delicate vibrations and hidden influences, and to interpret nuances" in testimony re best interests. Florida courts respect separation agreements if fair & not trained by fraud, overreaching, concealment, but best interests of child predominate over any parental agreement, & trial ct must determine best interests independently. FW waived claim trial ct failed to make specific "best interest" findings, because she failed to apprise the trial ct in a motion for rehearing, to give ct chance to address matter while facts fresh. FH, age 64, received unlawful discrimination award from firing by US Army Corps of Engineers. Award included $70,000 compensatory damages. Attempting to follow analytic approach in Weisfeld v. Weisfeld, 545 So. 2d 1341 (Fla. 1989), trial ct held there was no evidence the $70 K was a nonmarital award for pain & suffering. Because husband testified with no rebuttal it was for pain & suffering, appellate ct concludes it should have been allocated to husband as his nonmarital property. Trial court's wrong designation of $70,000 personal injury award as marital required vacating entire equitable distribution scheme and remand to trial ct to reconsider. Rehearing - substitute opinion.VinsonTimesharing
Horton v. Horton, 257 So. 3d 11971st DCANov 06, 2018Ordering a graduated, stepped-up timesharing schedule, circuit judge hoped to restore strained relationship between dad & son. Trial court's well meaning, but prospective-based approach to timesharing, was prohibited. Best interests of the child must be determined in the present. Concurring Judge Bilbrey observes many decisions judges must make involve "evidence-based anticipation or prospective determination of likely future events." E.g., considering bridge-the-gap alimony, rehabilitative alimony, "anticipated division of parental responsibilities after litigation," continuity of child's current environment. Judge Bilbrey: "But even when future events are almost sure to occur, our case law based on Florida Supreme Court precedent prohibits a prospective determination." Preudhomme v. Preudhomme, 245 So. 3d 989 (Fla. 1st DCA 2018), Arthur v. Arthur, 54 So. 3d 454 (Fla. 2010). Prohibiting any prospective determination of parenting means many parties end up back in court seeking to modify the parenting plan or timesharing. Timesharing impacts child support, so financial information has to again be disclosed. Judge Bilbrey: "[C]rowded court dockets, discovery, and counsels' schedule means that family law litigation can take many months or years."HortonTimesharing
Rotunda v. Rotunda, 259 So. 3d 2165th DCANov 02, 2018Reverses $50,000 temporary attorney fee award to pro wrestler's wife. Ct fails to award W expert fees & attorney fees moving forward, failed to make findings re reasonable hourly rate & number of hours spent. Wife hired attorney at $575/hr who'd representing pro wrestlers' wives. Temporary fees & costs through temporary hearing were $172,000, w/ est. $69,000 more through trial. Quarter million $ just for Wife's fees & costs. Both parties had forensic accountants. W's accountant fees $75,000. Wrestler's salary as independent contractor based on event performances & royalties made computing net income tricky. Reasonableness findings are required for temporary fee awards. How many hours are reasonable? At what reasonable hourly rate? RotundaAttorney Fees
Martinez v. Valerio, 255 So. 3d 519 3d DCAOct 10, 2018Based on Simmonds v. Perkins, 247 So. 3d 397 (Fla. 2018) Third District reverses dismissal of bio dad's paternity petition. Bio dad of married woman's child may petition to establish his parental rights & overcome presumption of legitimacy. BUT: he must have "manifested a substantial and continuing concern for the welfare" of the child.MartinezPaternity
Garrison v. Garrison, 255 So. 3d 877 4th DCAOct 10, 2018Ownership of closely held family prosthetic business awarded 50-50 to divorcing spouses but not valued. Forcing ex spouses to stay in business together creates an "intolerable situation" and is an abuse of discretion. Acrimonious divorcing couple. FH fired FW from closely held business, denied her access to business bank accounts, took complete control of business. Trial court MUST value family business, devise distribution that's "practical and beneficial to both parties." In dividing a family business, can a trial court do better than the parties themselves in achieving their financial interests in a way that is "practical and beneficial" to both of them and their family? #collaborativepractice #collaborative. With a neutral financial professional & neutral facilitator trained in refocusing from acrimony to positive dispute resolution, couples in collaborative divorce could control their financial futures rather than transfer control to a judge.GarrisonEquitable DIstribution
Masino v. Masino, 254 So. 3d 6492d DCASep 14, 2018Reversed imputation of income & decisions re alimony & attorney fees. Judge imputed income based on Bureau of Labor Statistics data not in record. No evidence re local job market for someone w/ wife's occupational qualifications. As the #collaborative team develops support options, for imputing income, consider gathering information not only about a spouse's work history, job qualifications, & current job market in the community now, but also, looking to the future (which courts generally can't do in litigated #alimony and #childsupport cases), info about what the spouse's qualifications can reasonably be & job market will be in the mid- to longer-term. Court failed to treat reduction in principal of debt on nonmarital property as marital. Property had negative equity. Trial court misapplied Kaaa v. Kaaa. Kaaa applied only to passive market driven appreciation in nonmarital assets, but here there was no appreciation. MasinoAlimony
Frederick v. Frederick, 257 So. 3d 11052d DCASep 14, 2018Wife was entitled to a credit for pay down on mortgage on Husband's nonmarital property, because that paydown increased the value of Husband's equity in the property. The passive depreciation of a nonmarital asset is not a marital liability to be automatically shared by the non-owning spouse.
For a calculator to help collaborative practice teams consider possible marital components of nonmarital real property, see Sampson Collaborative Law Nonmarital Real Property Calculator
FrederickEquitable Distribution
Matyjaszek v. Matyjaszek, 255 So. 3d 3724th DCASep 14, 2018Court used wrong fraction under Kaaa v. Kaaa to measure marital portion of passive appreciation of nonmarital real property. Nonmarital property started with negative equity at beginning of marriage. Using a debt-to-equity ration of > 100% would lead to an absurd result, so court allocated 100% of passive appreciation as a marital asset. Section 61.075(6), Florida Statutes (2018) replaces Kaaa formula! For a calculator to help collaborative practice teams consider possible marital components of nonmarital real property, see Sampson Collaborative Law Nonmarital Real Property CalculatorMatyjaszekEquitable Distribution
Engstrom v. Engstrom, 258 So. 3d 507 3d DCASep 12, 2018Genuine issues of fact re whether former spouse's financial affidavit was fraudulent & other spouse relied on draft when entering into marital settlement agreement precluded summary judgment on Florida Family Law Rule 12.540 petition.EngstromMarital Settlement Agreements
Maio v. Clarke, 255 So. 3d 369 4th DCASep 12, 2018Oral cohabitation agreement before two women married and divorced. Both signed testamentary docs leaving assets to each other upon death. During cohabitation, each kept indiv bank accounts. Did not pool income or assets. Trial court rejected Lenore's claims Patti, during premarital cohabitation, promised her premarital retirement earnings would fund parties' golden years & parties pooled assets. MaioPrenuptial & Postnuptial Agreements
Martin v. Social Security Administration, 903 F. 3d 1154 11th Circuit Court of AppealsSep 07, 2018Boundaries of "payment based wholly on service as a member of a uniformed service" for Social Security benefit calculations. Service person appeals SSA's reduction of monthly retirement benefits, applying "windfall elimination provision" of Social Security Act.
Under Social Security Act, SSA doesn't pay benefits as flat % of earnings, but adjusts payouts so those w lower avg indexed monthly earnings get greater % of earnings than those w/ higher avg earnings. Not all employment is subject to Social Security contributions. Noncovered employment is exempt from Social Security taxes, but many noncovered jobs include separate annuity or pension. Someone who worked in both covered & uncovered jobs might double dip - get pension or annuity from noncovered employer while receiving higher than warranted Social Security benefits. Social Security Act's "windfall elimination provision" helps eliminate double-dipping by adjusting default formula to account for worker who receives monthly payment base in whole or in part on earnings for noncovered work.
Martin v. Social Security Administration - Uniformed services exception from "windfall elimination provision": any "payment based wholly on service as a member of a uniformed service." See 42 U.S.C. Section 415(a)(7)(A)(III). "Members" includes members of the Army National Guard. Donald Martin was a National Guard military technician - "dual status technician." Only dual status technicians must maintain membership in Selected Reserve & a specified military grade, & to dress in uniform while performing technician duties. Unlike non-dual status technicians, dual status technicians are "authorized and accounted for as a separate category of civilian employees" & are exempt from the competitive service & requirements for reductions in Department of Defense civilian personnel.
Despite these differences, a dual status technician is "assigned to a civilian position as a technician,"and consistently referred to as a civilian employee. Martin was National Guard "dual status technician" for 23 years & member of Alabama Army National Guard during same period. Neither job was covered employment for Social Security purposes. After medical board determined Martin was nondeployable, his service w/ National Guard was terminated & civil service terminated as dual status technician. Based on Martin's receiving civil service disability retirement payments, Social Security Administration applied "windfall elimination provision" and cut his monthly benefits by one-third.
Martin said any payments based on service as dual status technician were based wholly on service as a member of a uniformed service, thus subject to the uniformed services exception to the windfall elimination provision. Agreeing with the SSA, 11th Circuit concludes, because dual status technicians don't' "wholly" perform their service as members of the National Guard, uniformed services exception doesn't apply. Part of the dual status technician's work is civilian employment.
Martin v. SSAChild Support
McKenzie v. McKenzie, 254 So. 3d 9934th DCASep 05, 2018Error to assign $26,000 in Wife's accounts when dissolution action was filed to her, after she depleted them, including $6,000 to pay her attorney. No evidence she dissipated funds. Appellate ct remands case for trial court to correct final judgment, but sees no need for additional evidence. If needed, parties may submit stipulations to assist trial judge in carrying out remand instructions, but that won't enable rehearing or reconsideration of appellate determinations. McKenzieEquitable Distribution
Keogh v. Keogh, 254 So. 3d 633 5th DCAAug 31, 2018Trial court mistakenly concluded it had no jurisdiction to award child support for child who lived in Ireland, because it wasn't the child's "home state" under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA).
But UCCJEA applies only to custody. "Child custody determination" under the Act specifically excludes orders relating to child support or other monetary obligation of a person. Under 61.13, Florida Statutes, courts may order either or both parents with duty to support child to pay support to other parent. With personal jurisdiction over the parents, court had jurisdiction to order dad to pay mom child support.
Spikes v. Fonville, 252 So. 3d 4191st DCAAug 30, 2018Trial court may adjust total minimum child support award considering impact of IRS dependency tax exemption by ordering a parent to execute a waiver of the exemption, contingent upon the parent paying child support being current in support payments. Section 61.30(11)(a)8., Fla. Stat. Court may order dependency exemption alternate between parents, but has no authority to allocate tax exemption directly; court is only permitted to order a party to execute a waiver of the exemption. SpikesChild Support
In re: Amendments to Florida Supreme Court Approved Family Law Forms, 232 So. 3d 285Supreme Court of FloridaAug 27, 2018Updated Approved Family Law Form 12.961 - Notice of Hearing on Motion for Contempt/Enforcement - Notice to person allegedly in contempt that present ability to pay is critical & of opportunity during contempt hearing to respond to allegations & questions about financial status.
Notice of Hearing on Motion for Contempt/Enforcement - The court won't provide electronic recording or court reporter, but a party may provide a court reporter at that party's expense.
Senopoulos v. Senopoulos, 253 So. 3d 12281st DCAAug 24, 2018Parties sign prenuptial agreement, marry, 4 days later he dies from gunshot. Wife & father-in-law (accusing her) fight over who should be appointed personal representative. But statute 733.301(1)(b) ranks her first in order of preference for appointment as PR. Section 733.301(1)(b), Fla Stats ranks spouse first in order of preference for appointment as PR. Trial courts have "inherent authority" to consider character, ability & experience to serve as PR and refuse to appoint statutorily preferred person. Trial judge didn't state those reasons for appointing dad-in-law as PR, so appeals ct kicks it back to trial court. SenopoulosTrusts & Estates
St. Onge v. Carriero, 252 So. 3d 12801st DCAAug 24, 2018Marital settlement agreement requiring dad pay half children's uncovered dental expenses didn't define them to include orthodontic expenses, so ct erred by holding him in contempt for not paying them. An implied provision of marital settlement agreement can't be the basis for an order of contempt. Concurring judge emphasizes importance of wording settlement agreement in determining if requirement of paying dental expenses is specific enough to encompass orthodontic expenses. St. Onge v. Carriero, 252 So. Marital Settlement Agreements
Fields v. Fields, 256 So. 3d 2225th DCAAug 24, 2018Error for trial judge to set aside final judgment of dissolution and also require parties to attend mediation & renotice case for trial, when they'd already entered into a valid settlement agreement. FieldsMarital Settlement Agreements
Cooley v. Cooley, 253 So. 3d 1223 2d DCAAug 24, 2018Parties married for 8 years, separated after 4 years. Unequal equitable distribution in ex-husband's favor reversed. During marriage, parties' income dipped while W attended law school. Some of wife's student loan proceeds went into joint account used for living expenses. Parties agreed to use separation date for valuing marital assets & liabilities, except didn't agree on date for valuing marital home & allocation of its appreciation. That 1 spouse is primary wage earner in marriage doesn't support unequal distribution of marital assets. That he wouldn't benefit from her (marital) student loans for law school didn't justify unequal distribution in his favor. CooleyEquitable Distribution
Gordon v. Fishman, 253 So. 3d 12182d DCAAug 24, 2018Fla. Stat. Section 732.507(2) doesn't apply to will made by an unmarried man who left property to his then-fiance, then didn't change it after he married & divorced her. Decedent never changed or revoked his premarital will after divorce. His surviving dad's guardian asked the court construe premarital will as if ex-wife predeceased decedent, so late son's 2 surviving children would be beneficiaries. Parties' prenuptial agreement & divorce decree allegedly forbid ex-wife from inheriting from estate, but nothing in appellate record showed guardian ever entered those in evidence in the probate proceedings. Plain language of section 732.507(2) voids only provisions of wills executed by "a married person" that affect the person's spouse upon divorce or dissolution or annulment of marriage. But this will making fiance beneficiary was executed by an unmarried person.
Read blog - Remind Employees to Update Beneficiary Designations.

Read blog - Update Beneficiary Designations After Divorce or Annulment.
GordonTrusts & Estates
Olivarez v. Olivarez, 250 So. 3d 872 1st DCAAug 16, 2018Reverses judgment that included $23,000 former wife allegedly dissipated, but with no findings she committed misconduct causing diminished or dissipated assets. This error affected overall financial package the court ordered, so required reversing equitable distribution, alimony, child support, & attorney fee decisions for judge to take another crack at them. How much did this divorcing couple spend in time, money, & rancor at trial & on appeal fighting over this $23,000? Could collaborative divorce have helped this family? OlivarezEquitable DIstribution
DiStefano v. DiStefano, 253 So. 3d 1178 2d DCAAug 15, 2018Reverses findings family home & Camry bought during marriage are nonmarital property. They're marital property: FW commingled funds (such as paychecks) earned during the marriage with her premarital funds. During marriage, FW acquires with proceeds from her premarital assets, plus funds in accounts titled in her name only, plus borrowed funds (1), a home where she, dad, & baby live & (2) a Camry. Appeals court reviews a trial court's characterizing asset as marital or nonmarital with fresh eyes ("de novo review"). Such characterization doesn't come to the appellate court presumptively correct. From accounts titled in former wife's name only, but into which she mixed marital funds ($ earned during marriage), she pays down payment on home, mortgage on home, car payments, & other marital expenses. Once former wife commingles sale proceeds from premarital home into personal accounts where she deposited marital paychecks, all funds in those accounts become marital. Court follows Pfrengle v. Pfrengle, 976 So. 2d 1134, 1136 (Fla. 2d DCA 2008) - Important to maintain nonmarital & marital assets separately, especially $ held in bank accounts. Money is fungible; once commingled, loses its separate character. DiStefanoEquitable DIstribution
Bauchman v. Bauchman, 253 So. 3d 11434th DCAAug 15, 2018Ex-husband correctly challenges trial court's denying modification of 2005 alimony award & finding his voluntary impending retirement & ex-wife's improved finances didn't constitute substantial change of circumstances. Parties' marital settlement agreement after 27 years of marriage silent on either party's retirement & affect on agreed-on permanent alimony. 10 years after divorce, after FH turns 65, but 2 years before target retirement date, he petitions to modify or terminate alimony. He kept working after 65 - sick current wife needed health insurance until she reached 65. "Settlement agreements are to be interpreted in accordance with laws governing contracts. Thus, absent evidence of the parties' intent to the contrary, the unambiguous language of the agreement should be interpreted according to its plain meaning." Dogoda v. Dogoda, 233 So. 3d 484, 487-88 (Fla. 2d DCA 2017) (quoting Johnson v. Johnson, 848 So. 2d 1272, 1273 (Fla. 2d DCA 2003)).
"Consistent with notions of equity is the consideration of whether the parties contemplated the substantial change in circumstances and accounted for such change when they agreed on the terms of the support award." Dogoda, 233 So. 3d at 487.
Lesson for collaborative divorce & marital settlement agreements & Florida divorce final judgments - If you anticipate or foresee events or contingencies, consider & negotiate language now & include a provision in the agreement about handling them once they occur. There is no discussion of "anticipated," "unanticipated," or "foreseeable" events in Pimm v. Pimm, 601 So. 2d 534 (Fla. 1992).
Pimm focused on the reasonableness of a former spouse's voluntary retirement as a basis for modification. Including a provision about retirement in an MSA or final judgment is preferable, but not doing so doesn't preclude a spouse from petitioning for modification for those reasons. When considering a party's financial need for funds to secure competent legal counsel, there's no requirement both parties have legal counsel of equal experience or ability; nor is an impecunious spouse entitled to retain legal counsel charging fees comparable to those of attorney retained by other spouse. The purpose of a fee award in a dissolution action is to "ensure that both parties . . . have similar access to counsel and that neither has an unfair ability to obtain legal assistance because of the other's financial advantage." Young v. Young, 898 So. 2d 1076, 1077 (Fla. 3d DCA 2005). Original settlement agreement equalized parties' financial positions through alimony & equitable distribution of marital assets. FW had substantial nonmarital assets: $66,000/year alimony, owned over $600K cash assets, had net worth of $2.6 million.
Masnev v. Masnev, 253 So. 3d 6384th DCAAug 15, 2018Reverses lump sum child support award no statute or case precedent allows lump sum child support. Trial court on remand may consider sequestering obligor's assets to secure child support award.MasnevChild Support
Frank v. Frank, 253 So. 3d 124th DCAAug 08, 2018Ex husband had to pay alimony, left ex-wife postdated checks while he was on a long trip sailing. First check bounces; she moves for contempt, serving motion by email, mail, fax, & published notice of action. Contempt order transferring rights to marital home for failure to pay alimony was improper. Courts broad discretion to sanction creatively to enforce a judgment has limits. Contempt does not lie to enforce a property settlement from a dissolution of marriage. FrankContempt
Ryan v. Ryan, 252 So. 3d 272 4th DCAAug 08, 2018Mom's late response to dad's relocation petition after she timely got a lawyer was the lawyer's fault, for reasons he couldn't control: his hospitalization, his child's sudden illness. 61.13001(3)(d), Florida Statutes allows granting relocation when other parent fails to object, absent "good cause," but should be used for parents who put up roadblocks to relocation, not when a parent shows intent to participate in the relocation process. Florida law frowns on defaults, encourages hearing for both parents to present evidence and judge to consider multiple factors to determine if relocation is in children's best interests. RyanTimesharing - Relocation
Knecht v. Palmer, 252 So. 3d 8425th DCAAug 03, 20183 yr marriage - realtor wife enters marriage w assets. CPA husband enters with debt. Appreciation in marriage of home for which realtor made down payment w her premarital $. Title, debt to home in her name only. During marriage, mortgage payments came from her premarital assets. Purchase price $412,000, then parties spent half a million remodeling home, but agreed value at divorce was $575,000. Agreed appreciation was $163,000 (agreed value - purchase price). FH argues money for renovations coming from FW's nonmarital sources were commingled into joint account. $ came from her trust, transferred into business account she owned individually but on which FH could sign, then into joint checking account to pay for renovations. Appellate court agrees FW commingled funds in joint checking account into which FH has deposited some $, triggering a presumption she intended to give him half of funds she contributed.
For calculator of marital component of appreciation in nonmarital property useful as a tool in collaborative divorce, try out Sampson Collaborative Law Premarital Account Calculator

BUT - Fifth DCA concludes facts caused for unequal distribution of marital assets in FW's favor & trial court's findings supported such unequal distribution.
Court's blanket reservation of jurisdiction for any modification of final judgment of dissolution is legally wrong and unnecessary. Parties' property rights if determined by judgment are fixed.
KnechtEquitable Distribution
McKnight v. McKnight, 252 So. 3d 8251st DCAAug 01, 2018"Special circumstances" warranting order that spouse secure alimony with life insurance include:
(1) potential recipient will be left in dire circumstances if obligor dies
(2) obligor is in poor health
(3) minors living at home
(4) supported spouse has limited earning capacity
(5) obligor in arrears on support obligations
(6) obligor agrees to secure alimony with life insurance.
St. Mary's School of Medicine Limited v. Zabaleta, 252 So. 3d 3713d DCAAug 01, 2018Med student, to whom his former med school (St. Mary's) refused degree, sued. School said he didn't finish paying tuition. To enforce settlement agreement an attorney allegedly signs for a client, party seeking enforcement must show a clear unequivocal grant of authority to attorney to enter into agreement. Attorneys emailed back-and-forth negotiated terms and spoke by phone, but their testimony conflicted, including whether St. Mary's authorization to agree still had to be obtained. Former med student failed to show "clear and unequivocal grant of authority" by medical school (which closed 5 years after suit began) to its attorney to settle 12-year running lawsuit on terms laid out in email of August 30, 2016. 14 years later, 2004 case remanded for further proceedings.ZabaletaMarital Settlement Agreements
Buschor v. Buschor, 252 So. 3d 8335th DCAAug 01, 20185th DCA reverses final judgment modification denying mom's petition for relocation & changing child's primary residence to dad's - something he didn't request - w no notice to her. Mom & dad divorce prior to son's birth, agree on graduated timesharing based on child's age. But dad files modification action when child is 3 months old, resulting in mediated increased agreed timesharing. Both parents remarry. A year goes by. Dad files 2d action to modify, asking for 50-50 overnight timesharing & alleges but fails to prove parental alienation & that mom interfered w/ his time. Mom's current husband's job comes to abrupt end; he's given option to keep working same job in South Florida or Alabama. Child's dad had to but didn't maintain son on his insurance plan. Child is on mom's current husband's health insurance, as are newborn & his 2 kids by prior marriage. Mom files motion to relocate to S. Fla for financial necessity caused by current husband's change of employment. Judge orders parents to try resolving things themselves. The next day, FW files petition to relocate, but without court order moves with child to South Florida. Dad files motion for contempt & return of child. Parents reach temporary agreement they share equal timesharing alternating week on, week off for 6 months. Judge denies mom's request for relocation, concluding she wouldn't cooperate in allowing dad "liberal and frequent" visitation, but never defines that inviting repeat returning to court. Judge appears to punish mom for not buckling to dad's ever-increasing demands for more time, contrary to emails & texts backing mom's testimony she's allowed dad extra time. Dad is aggressive: After mom agrees he could pick up child early on day he wasn't working, he ignores agreed-upon pickup time, shows up at & breaks into mom's home, & takes sleeping son from his room. Combative dad routinely removes son from daycare with no prior notice to mom, making other kids in daycare cry. He conducts surveillance on mom's home. He discusses disputes in child's presence over mom's requests he not do that. Mom meets her burden of proving relocation to South Florida is in son's best interests. Once burden of proof shifts to dad to show otherwise, he fails to meet burden. Even though mom relocates without dad's consent or prior court approval, that alone isn't enough to deny relocation. BuschorTimesharing - Relocation
McNeil v. Jenkins-McNeil, 252 So. 3d 354 5th DCAJul 27, 2018Failure to prove 6-month residency for Florida court to have jurisdiction over #divorce. Former husband didn't attend trial. Former wife failed to present valid FL driver license, FL voter's registration card, FL ID card or testimony or affidavit of 3d party to corroborate residence. Residency requirement can't be established by uncorroborated testimony of 1 party; parties can't waive requirement by admission in pleadings; parties can't establish residency by agreement.McNeilJurisdiction
Franco v. Thomas, 251 So. 3d 325 3d DCAJul 25, 2018Parties agreed each would keep nonmarital assets, w/ husband to retain family home he purchased prior to marriage. Trial court enters final judgment incorporating settlement agreement. But where will 2 minor kids live after judgment? Dad files unlawful detainer action to evict mom & kids from home. Mom files 12.540 motion to vacate judgment, saying final judgment she agreed to, never sought to be reheard & never appealed wasn't fair to kids. Mom cites Dorsett v. Dorsett, 902 So. 2d 947 (Fla 4th DCA 2005) rev'd FJ premised on parents' oral agreement re relocating child, requiring trial ct to determine independently if agreed-upon arrangement wouldn't harm child's interests. Too late for mom to claim legal error under 12.540 (or Fla. Rule Civ. P. 1.540) - She had to seek timely rehearing under Family Rule 12.530 or timely appeal final judgment. FrancoPrenuptial & Postnuptial Agreements
Elkins v. Elkins, 252 So. 3d 254 4th DCAJul 18, 2018Because trial court found "best efforts" used in parties' marital settlement agreement was ambiguous, it was premature to force former husband to disclose extensive personal financial information to ex-wife about his girlfriend, business, and himself. Before deciding if extensive financial discovery former wife requested about whether ex-husband used "best efforts" to remove her from mortgage on property, trial court first had to decide meaning of ambiguous marital settlement agreement. Former Husband argued "best efforts" is ambiguous, and parties didn't mean he had to devote all his resources to paying off mortgage if that would be financially unreasonable. Former wife argued he had $$ to pay off mortgage, but used his money to do other things, like supporting his girlfriend and her kids in an affluent lifestyle.ElkinsMarital Settlement Agreements
Holloway v. Holloway, 246 So. 3d 1307 5th DCAJul 13, 2018Error for court to order former husband to pay portion of former wife's attorney fees when he was in no better financial position than she to pay her fees. How much did they spend fighting over fees, including fees on appeal? HollowayAttorney Fees
Gibson v. Wells Fargo Bank, 255 So. 3d 9442d DCAJul 13, 2018Proceedings supplementary. Creditor can't satisfy debt 1 spouse incurs by garnishing federal tax refund issued in both spouses' names & deposited in joint checking account. Tenancy by entirety status can attach to anticipated receipt of a tax refund when spouses filed amended joint tax return. Once TBE status of asset is established, later transfer to another asset (joint bank account) doesn't terminate unities of title or possession. In Beal Bank, SSB v. Almand & Assocs, 780 So. 2d 45 (Fla. 2001) - Florida Supreme Court eliminated distinctions between real property & personal properyt held jointly by H & W, presumed tenancy by entireties. State law creates & defines property interests. Butner v. United States, 440 US 48, 55 (1979). Federal tax law creates no property rights but merely attaches federally defined consequences to rights state law creates.
United States v. Bess, 357 US 51, 55 (1958)
United States v. Nat'l Bank of Commerce, 472 US 713, 722 (1985).
Unless both spouses incurred debt, funds they own as tenants by entireties are beyond the reach of a creditor of either spouse. Atuna v. Dawson, 459 So. 2d 1114 (Fla. 4th DCA 1984)
IRS's power to tax and attach liens, unlike other creditors, gives IRS special authority under Internal Revenue Code to defeat unity of interest presumed to exist under Beal Bank & go after tenancy by entireties property. In re Uttermohlen, 506 BR 142 (2012). Tenancy by entirety status can attach to anticipated receipt of a tax refund when spouses filed amended joint tax return. Once TBE status of asset is established, later transfer to another asset (joint bank account) doesn't terminate unities of title or possession. Whether tax refunds were related to husband's economic activity alone is irrelevant.
FCCI Commercial Insurance v. Empire, 250 So. 3d 858 2d DCAJul 13, 2018Attorney's fees, inherent authority - evidence didn't support finding insurance co engaged in egregious or bad faith conduct. Trial court's inherent authority to award attorney fees when a party exhibits egregious or bad faith conduct should rarely be exercised. This inherent authority is reserved for extreme cases where a party acts "in bad faith, vexatiously, wantonly, or for oppressive reasons." Imposition of sanctions under inherent authority must be supported by detailed fact findings describing specific acts of bad faith conduct resulting in unnecessary attorney fees.FCCIAttorney Fees
Williams v. Williams, 251 So. 3d 926 4th DCAJul 11, 2018Trial court misunderstood: through contempt power, it COULD compel former wife to comply with marital settlement agreement it found she breached. She failed to make "all reasonable efforts" to refinance marital home - never even applied for refinancing. Contempt isn't available to punish failure to pay money equitable distribution requires, but is available to compel performing an act.WilliamsContempt
Lane v. Lane, 254 So. 3d 570 3d DCAJul 11, 2018Shared parenting when divorced parents disagree over public versus private school. If parties haven't agreed on alternative dispute resolution (mediation, collaborative), trial court must resolve impasse by determining child's best interest. Short time between best interest determination and deadline for applying to private school distinguished facts from those when judges made improper prospective best interest determinations. Trial court can't preclude a parent from practicing religion or influencing religious training of child inconsistent w that of other parent. But mom's objection to private school wasn't over its religious affiliation or conflict w her religious beliefs. No violation of shared parental responsibility for dad to take son for academic testing (admission assessment test) w/o mom's knowledge or consent. LaneParenting Plans
New Florida Family Law RulesFlorida LegislatureJul 01, 2018Effective July 1, 2018, the Florida Legislature, joining 13 other states, adopts "Uniform Deployed Parents Custody and Visitation Act" (UDPCVA). Ch. 18-69, Sec. 1, Laws of Fla. (creating new sections 61.703-773, Florida Statutes). Uniform Deployed Parents Custody and Visitation Act
New 61.739(1) reads: Upon the motion of a deploying parent and in accordance with general law, if it is in the best interest of the child, a court may grant temporary caretaking authority to a nonparent who is an adult family member of the child or an adult who is not a family member with whom the child has a close and substantial relationship.
In the case of an adult who is not a family member with whom the child has a close and substantial relationship, the best interest of the child must be established by clear and convincing evidence.
New 61.703 defines "close substantial relationship": "a positive relationship of substantial duration and depth in which a significant emotional bond exists between a child and a nonparent."
Court declines to reach mom's constitutional challenge to 61.13002(2), Florida Statutes.
Simmonds v. Perkins, 247 So. 3d 397Supreme Court of FloridaJun 28, 2018Supreme Court of Florida holds biological dad may rebut common law presumption bio mom's husband is child's legal father, where she or husband objects to allowing rebuttal. Conditions for bio dad rebut presumption of legitimacy:
(1) Bio dad has "manifested a substantial and continuing concern" for the welfare of the child
(2) there is a "clear and compelling reason based primarily on the child's best interests"
Mom told dad she married another man for "immigration purposes" only. When child was born, bio dad had no idea there was an intact marriage. Bio dad was at hospital for child's birth, husband's name not on birth certificate, mom gives child bio dad's last name, raised child with him. Bio dad took child to doctor visits, enrolled child in day care, regularly & voluntarily paid child support. Child knows bio dad as "daddy." The presumption of legitimacy creates no absolute bar to a biological father's action to establish parental rights when mom was married at child's birth and both she & husband object.
Mulvey v. Stephens, 250 So. 3d 106 4th DCAJun 27, 2018Daughter sues dad's widow (step-mom) for tortious interference with expectancy (inheritance). Because daughter failed to show alleged undue influencer (widowed stepmom) committed an independent tort against decedent (dad), jury improperly found in favor of daughter on her tortious interference claim. MulveyTrusts & Estates
Rivera v. Purtell, 252 So. 3d 283 5th DCAJun 22, 2018Dad was right: trial court was mistaken concluding it couldn't prospectively modify timesharing once child starts kindergarten. Child's starting kindergarten was an objectively, reasonably certain future event. It was not improperly prospective to order what timesharing would be once child started kindergarten. Distinguishing Arthur v. Arthur, 54 So. 3d 454 (Fla. 2011), the decision about where the child would reside (w dad) once kindergarten starts was not a ruling on a relocation request. The Supreme Court's of Florida's decision in Arthur only prohibits the trial court from predicting a change in a child's best interest at some future date or event. But the prohibition does not prohibit a timesharing plan that applies a child's best interests as determined at the time of the final hearing to an event reasonably and objectively certain to occur at an identifiable time in the future. For such cases, no "crystal ball" is required. "When crafting a timesharing plan, a trial court must be free to account for reasonably and objectively certain future events. Otherwise, the parties would be required to continuously seek permission from the court after every change that inevitably occurs in a child's life, like starting school. We decline Mother's invitation to interpret Arthur's prohibition so broadly that Florida's trial courts become de facto parents." RiveraTimesharing - Relocation
Malowney v. Malowney, 250 So. 3d 204 2d DCAJun 20, 2018For modifying alimony, changes must be substantial, not contemplated at dissolution judgment, and "sufficient, material, permanent, and involuntary." MalowneyAlimony
Solomon v. Solomon, 251 So. 3d 2443d DCAJun 20, 2018Final Judgment failed to set forth specific steps dad must take to obtain unsupervised time sharing with his children. Court can't simply adopt evaluator's & GAL's reports recommending short-term supervised timesharing but not identifying steps for terminating it.
Solomon Timesharing
Daniels v. Caparello, 249 So. 3d 760 1st DCAJun 18, 2018Mom can't belatedly seek to back out of her mediated settlement agreement w dad, resolving paternity action or later week-on, week off schedule she agreed to. Mom can't now say specific schedule the trial court established & she agreed to wasn't in child's best interest when she never presented that to the trial court for a ruling.Daniels Parenting Plans
In re: Amendments to Florida Supreme Court Approved Family Law Forms, 246 So. 3d 1131Supreme Court of FloridaJun 15, 2018New form 12.913(a)(3) - Notice of Action for Termination of Parental Rights and Stepparent Adoption
Florida Family Law Forms Amended June 2018
Amended Form 12.951(a) Petition to Disestablish Paternity or Terminate Child Support Obligation
Amended Form 12.951(b) Order Disestablishing Paternity and/or Terminating Child Support Obligation
FormsFamily Law Procedure
Bouin v. DiSabatino, 250 So. 3d 168 4th DCAJun 13, 2018Husband sues wife during divorce for 7 separate interspousal counts: Intentional Infliction of Emotional Distress; Tortious Interference with a Business Relationship; Breach of Contract; Conversion; Civil Theft; Violation of the Civil Remedies for Criminal Practices Act; & Defamation by Implication. He claimed she forged checks, stole credit cards out of mail, transferred $ to his mother-in-law & herself, caused lender to reject application for $2.5 million mortgage. Citing Beers v. Beers, 724 So. 2d 109 (Fla. 5th DCA 1998), trial court ruled counts arose during marriage, so were under exclusive jurisiction of family court handling dissolution proceeding. Distinguishing Beers, appellate court held interspousal claims involving nonmarital property were not barred. Whether spouse's complaint could be brought separately, or was exclusively within the jurisdiction of the dissolution case, depends findings of fact about whether claims involved marital or nonmarital property.Bouin Equitable Distribution
Rodriguez v. Roca, 254 So. 3d 541 3d DCAJun 06, 2018Remand for trial judge to receive evidence on whether, under Casto v. Casto, 508 So. 2d 330 (Fla. 1987) a postnuptial (marital settlement) agreement providing for no alimony should be set aside. Notary who didn't speak but could read, write English well helped parties fill out Family Law Self Help form for marital settlement agreement. Trial judge made no finding of fraud, deceit, duress, coercion, misrepresentation, overreaching under Casto. Judge took no evidence the agreement made an unfair or unreasonable provision for wife or about husband's financial means. Judge took no evidence about adequacy of wife's knowledge of financial condition at the time of agreement and if she were prejudiced by lack of information. Might #collaborative comediation have helped the parties avoid 2 years of litigation, appeal, remand, fees?Rodriguez Prenuptial & Postnuptial Agreements
Gutierrez v. Gutierrez, 248 So. 3d 271 3d DCAJun 06, 2018Judge's findings of fraud, misrepresentation, coercion in mediated marital settlement agreement were not supported by competent substantial evidence. Former husband's translator for mediation testified he incorrectly translated MSA, assets were excluded, former husband felt coerced into signing because his former attorney told him he'd have to pay to leave mediation. Former husband freely chose interpreter at mediation. Any misunderstandings w his interpreter wasn't fraud. Alleged misrepresentation in discovery came from nondisclosure of former husband's own assets, not former wife's. "Pressure to settle" is insufficient proof of coercion necessary to set aside marital settlement agreement reached after mediation. Crupi v. Crupi, 784 So. 2d 611 (Fla. 5th DCA 2001)GutierrezMarital Settlement Agreement
Amro v. Gazze, 244 So. 3d 334 4th DCAJun 06, 2018When judge orders defaulting party to pay attorney fees under Marital Settlement Agreement to nondefaulting party, judge must find reasonable hourly rate & number of hours expended. Failure to do so resulted in appeal, remand, more expenses & delay.AmroAttorney Fees
Gelber v. Brydger, 248 So. 3d 1170 4th DCAJun 06, 2018Former spouse's ability to access retirement accounts w/o penalty may be considered in analysis of sufficient change in circumstances warranting downward modification of alimony "IF MSA or final judgment didn't already take retirement accounts into consideration in setting alimony. MSA did not take into account income from retirement accounts FW would receive w/o penalty once she reached retirement age. Former wife, arguing her future receipt of income from retirement accounts, being "anticipated," "foreseeable," couldn't be grounds for modification, because only "unanticipated, "unforeseeable" changes provide grounds for modification. Alimony modification statute (Fla Statutes 61.14) makes no reference to a change in circumstances being "unanticipated." The notion of "anticipated" change in circumstances crept into FL law over years. Word choice of "anticipated" was unfortunate. Florida's alimony modification statute refers to changed circumstances & financial ability, & permits court to enter orders "as equity requires." Underlying legal principle: If a particular occurrence was a factor considered in initially fixing award in question, don't change award in parties' marital settlement agreement or final judgment because of that occurrence. Gelber Alimony
Castleman v. Bicaldo, 248 So. 3d 1181 4th DCAJun 06, 2018Philippine immigrant married husband, got conditional permanent resident status (Green Card). 26-months after marriage, husband files for dissolution. Trial court erred by ruling if wife's application for citizenship were denied, she could take the parties' child w/ her to Philippines, but court didn't comply with Florida's 61.13001 relocation statute. Mom might be forced to go back to Philippines, but judge must still make relocation inquiry under 61.13001 to determine if child should be allowed to relocate. Court erred by making prospective-based finding it was in child's best interest to move to Philippines at future, uncertain date. See Arthur v. Arthur, 54 So. 3d 454 (Fla. 2010). Error to award durational alimony longer than duration of marriage, measured by date of marriage through date of filing petition for dissolution. Parties' attempts to reconcile after filing don't extend length of marriage. Castleman Timesharing - Relocation
Williams v. Sapp, 255 So. 3d 912 1st DCAMay 31, 2018In wife's absence and with no notice to her, trial judge performed an unsolicited rewrite of a signed mediation marital settlement agreement. Mom & Dad finally settled after years of protracted litigation, agreeing she'd have sole parental responsibility. At 5-minute status conference, rather than approving agreement as parties requested, judge reworked it, struck through provisions, inserted handwritten edits. Later, judge said Wife failed to attend a trial never scheduled or noticed! "Blindsiding a party by announcing on the day of the hearing that the court will entertain evidence at a hearing not noticed as an evidentiary hearing is the epitome of a due process violation." (cites omitted)WilliamsMarital Settlement Agreement
Horgan v. Cosden, 249 So. 3d 683 2d DCAMay 25, 2018Beneficiaries of mom's trust wanted their money now! Son, the income beneficiary of revocable trust that became irrevocable on mom's death, w/ charities to receive principal on son's death, sought modification of trust. Florida Statutes, Section 736.04113 allows terminating irrevocable trust if purposes of trust have become fulfilled or wasteful. Section 736.04115 allows a judge to modify irrevocable trust if in best interests of beneficiaries. Plain language of trust showed mom wanted to provide for son by incremental distributions of income, THEN give entire principal to educational institutions. Early termination would frustrate the purposes of the trust.There'd been no waste of trust assets; no evidence the trust purposes had been fulfilled, or termination of trust was in beneficiaries' best interest. No indication admin expenses were unusual, or principal had been invaded, or market fluctuations created real risk mom's intent would be thwarted. Settlor (mom) may not have wanted to spell out in trust document why she didn't want to provide son & charitable remainder beneficiaries with a lump sum distribution. That's her prerogative! Horgan Trusts & Estates
Carefirst of Maryland, Inc. v. Recovery Village at Umatilla, LLC, 248 So. 3d 1354th DCAMay 23, 2018In evaluating minimum contacts for personal jurisdiction, purposeful availment of the benefits of Florida law by directing action at Florida is the correct test. Carefirst is a MD-based insurance co & licensee of Blue Cross & participant in Blue Card Program, which allowed members to get care nationwide & Carefirst to charge in-state discounts Blue Cross uses in that state. Customers accessed website directing them to BC's national doctor & hospital finder. Carefirst contracted w/ FL Blue for it to pay health care providers a price determined by FL Blue. Carefirst then reimburses FL Blue. 8 MD residents get treatment from Umatilla Florida-based substance abuse & eating disorder facility, which claimed Carefree shorted it on reimbursements. Carefirst's contact w provider was based on customer's unilateral decision to get treatment in FL. Not enough to establish specific personal jurisdiction over foreign insurer. Florida Blue was not Carefirst's Florida agent. CarefirstJurisdiction
Heard v. Perales, 247 So. 3d 533 4th DCAMay 16, 2018Court did not abuse discretion by imputing minimum wage income to wife. Once court found mom could work, court must impute some income to her. Evidence supported court's rejecting mother's contention she couldn't work & her job search was inadequate. No showing her disabilities prevented her from getting a job. A successor judge may not enter order or judgment based on evidence the predescessor judge heard.Heard Child Support
Fazio v. Fazio, 247 So. 3d 531 4th DCAMay 16, 2018Court finds marital settlement agreement ambiguous because "marital portion" of Florida Retirement System was susceptible to more than 1 interpretation, as applied to FRS enhancement purchased during marriage. Remanded for evidentiary hearing on meaning of disputed language. How much in attorney fees did the parties devote to litigating, appealing, remand of this "settled" case? FazioMarital Settlement Agreements
Sealy v. Sealy, 245 So. 3d 808 4th DCAMay 16, 2018Mediated settlement agreement clear if FW failed to refinance mortgage in 6 months, FH could have house sold or refinance it in his name & buy FW out for 50% equity. But trial court erred in determining FH would be entitled to 50% proceeds of forced sale of home (only if he refinances & buys out FW's interest). Reversed & remanded for evidence to determined parties' entitlement ot sale proceeds under MSA if house is sold but not refinanced. SealyMarital Settlement Agreements
Morrison v. Morrison, 247 So. 3d 604 2d DCAMay 11, 201827-year marriage resolved by marital settlement agreement, but its ambiguous terms required external evidence of intent re % of former husband's future inheritance former wife would receive as part of equitable distribution. former husband's dad created spendthrift trust to pay former husband periodically on dad's death. Former husband's refused to pay any to former wife, claiming such funds weren't "inherited." When a marital settlement agreement (read: contract) is latently ambiguous, parol evidence establishes what the parties would've done, had they thought to do it.
Key extrinsic fact: the means by which former husband would receive funds when parents died. What would former wife and former husband have provided, had they known he'd not receive funds outright, but would receive them only as beneficiary of a spendthrift trust?
MorrisonMarital Settlement Agreements
Quillen v. Quillen, 247 So. 3d 40 1st DCAMay 03, 2018Former husband's "Motion to Dismiss" a motion - not a pleading - was not an authorized response to FW's motion for contempt & enforcement, under Florida Family Rules of Procedure 12.100(b). Nonmoving party may respond to motion with written response or memorandum of law. A motion is not a responsive pleading. Appellate court exercises de novo review of a consent final judgment - as with settlement agreements. Rule is don't disturb parties' agreement unless it's ambiguous or needs clarification, modification, or interpretation. Trial court finds unambiguous, but appellate court finds ambiguous - relevant terms concerning FW's right to continuing alimony after child support terminates were latently ambiguous: what did the parties intend about alimony once youngest child reached majority? Case remanded. Further proceedings to receive parol evidence regarding parties' intent. Final judgment was entered 13 years earlier. Had the parties tried collaborative divorce in initial proceedings, how many "alimony" payments could have been made with $$ spent on attorney fees & costs for protracted postjudgment proceedings, appeal, remand, further proceedings?QuillenMarital Settlement Agreements
Preudhomme v. Preudhomme, 245 So. 3d 989 1st DCAMay 03, 2018Trial court engaged in prohibited prospective based analysis when it set a timesharing plan for child. Arthur v. Arthur, 54 So. 3d 454 (Fla. 2010) - a petition for relocation must be determined based on the present best interests of the child, because "a trial court is not equipped with a "˜crystal ball' that enables it to prophetically determine" whether any changes would occur in the parties' lives in the interim.
J.P. v. D.P., 196 So. 3d 1274 (Fla. 1st DCA 2016) Court disapproved the use of a prospective-based analysis, where the trial court found that it was in the first-grade child's best interest to be with the father during the school year, but then ruled that the child should move over 300 miles away five years later to live with the mother. In ruling that it was in the best interest of the child for the parties to continue to rotate weekly timesharing until the child entered kindergarten, when it would be in the child's best interest to begin majority timesharing with Appellee, the court engaged in the type of prospective-based analysis prohibited.
Although parties, by collaboratively reached parenting plan, cannot divest the trial court of its independent obligation to consider child's best interests, or invite adoption of a parenting plan with prospective-based terms upon happening of future events, in #collaborative #collaborativefamilylaw, parties could agree to return to collaborative team upon occurrence of future events that would modify the parenting plan.
PreudhommeTimesharing - Relocation
Morris v. Morris, 255 So. 3d 908 1st DCAApr 30, 2018Bio mom dies. 16-year old girl's step-dad (her bio-dad's brother!) against her bio dad. Bio dad should have had custody unless step-dad proved: (1) bio dad unfit; or (2) remaining with bio dad would result in substantial threat of significant & demonstrable harm to child. Best interest standard is NOT the correct standard under 751.03, temporary custody by extended family member. Preference to natural parent prevails despite 3d persons' capability & willingness to provide better financial, social benefits to child. Step-dad never adopted child. Rather than go to Germany to live with surviving bio dad, 16-year old wanted to stay in FL with younger brother, near older sis, finish school with friends. Parental Preference Rule - natural parent's right to enjoy custody, fellowship, companionship of offspring - older than common law itself. Remand for trial court to analyze detriment in the context of relocation of a child. By the time proceedings after remand conclude"¦ teenage daughter may no longer be a minor. How much did all of this cost everyone? How much upheavel, angst? Could #collaborativelaw have helped this family?MorrisTimesharing - Relocation
Schanck v. Gayhart, 245 So. 3d 970 1st DCAApr 30, 2018$2.5 million equalizing payment owed to FW survived her death. FH defaulted on monthly payments, resulting in money judgments. FW's estate sought order in aid of execution asking FH to turn over stock in company & membership certificates in LLC. FH testifies certificates were transported to new wife's home in Canada. While court has no in rem jurisdiction over property located outside jurisdiction, it has in personam jurisdiction over former husband to order him to take actions with respect to certificates. Provided court doesn't directly affect title to property while it remains in foreign jurisdiction, court with personal jurisdiction over defendant may order him to act on the property.
Compare Sargeant v. Al-Saleh, 137 So. 3d 432 (Fla. 4th DCA 2014) - reversed a judgment compelling the turnover of stock certificates located in foreign countries - lower ct lacked in rem jurisdiction over certificates, and in personam jurisdiction over debtors did not confer upon ct power to enter order affecting the certificates. Outlines how creditor may reach debtor's security interests and invoke court's power to, by injunction or otherwise, reach certificated securities or satisfy creditor's claim by means allowed at law or in equity. Court may order certificates cancelled and reissued. Entities (corporation and LLC) didn't need to be made parties to proceedings. Issuer of a certificated security must reissue certificate upon the certificate owner's request. 678.4051.
See also House v. Williams, 573 So. 2d 1012, 1012 (Fla. 5th DCA 1991) - When 1 debtor refused to respond to discovery, other said she didn't know where stock was, court could order corporation to reissue stock certificate.
Schanck Equitable Distribution
De La Piedra v. De La Piedra, 243 So. 3d 1052 1 st DCAApr 25, 2018Reverses order setting temporary alimony, child support, and wife's attorney fees representing more than 90% of net income of husband-attorney, who financially supported family while homemaker-mom raised 3 kids. Alimony, including in-kind payments for wife's mortgage, medical insurance & car insurance, student loans, cell phone & medical bills should've been included in wife's income and deducted from husband's income in calculating child support. In award of $10,500 toward wife's temporary attorney fees, trial court failed to take into account alimony & child support payments, to determine husband's ability to pay attorney fees. Remand for court to revisit issues. Compared to the $10,500 temporary attorney fees in dispute, how much money did the family spend for the temporary hearing, appeal, and remand? Could the parties have worked these temporary (and all other) financial issues out using collaborative interest-based resolution? De La PiedraAlimony
Overstreet v. Overstreet, 244 So. 3d 11821st DCAApr 25, 2018Case of first impression. 3-year assignment of Navy servicemember to Guam would be a permanent change of station, not triggering right of servicemember to designate family member to exercise time-sharing during a temporary assignment. To interpret statute, court looks to 61.13001 stating relocation with a child is a change in location of the parent's principal residence at least 50 miles from previous residence and for at least 60 consecutive days. To interpret statute, Court also looks to military's technical definitions for "temporarily assigned" and "Permanent Change of Station" (PCS) and Navy's "Temporary Duty" (TEMDU).Overstreet Timesharing - Relocation
Lewis v. Juliano, 242 So. 3d 1146 4th DCAApr 18, 2018Trial court couldn't cut off mom's timesharing as sanction for her disobeying order to provide her address. Modification requires substantial change in circumstances & proof modification is in child's best interests.Lewis Timesharing
Greene v. Greene, 242 So. 3d 52 1st DCAApr 18, 2018Mom & Dad's disagreement re meaning of "Thanksgiving" winds up in threats, texts, police intervention. Mom's interpretation was unreasonable, but trial court improperly tagged her with dad's attorney fees. Trial Court improperly exercised its inherent authority to award dad attorney fees, but made no express findings of mom's bad faith conduct that caused dad to incur attorney fees unnecessarily. Detailed fact findings of bad faith conduct supporting award of fees under inequitable conduct doctrine must be highly specific and directly correlate to amount of attorney fees & costs imposed on bad faith actor.Greene Attorney Fees
Russell v. Russell, 240 So. 3d 8901st DCAApr 05, 2018Court erred by granting mom unpled relief - changing agreement w dad he'd have ultimate say-so over child's daycare, when she never asked for that & parties didn't try that issue by consent. Court increased dad's child support obligation but made no findings regarding parties' incomes. Court cites Aguirre v. Aguirre, 985 So.2d 1203 (Fla. 4th DCA 2008), (final judgment facially erroneous, requiring remand, because it failed to make finding about each party's net income & explain how CS was calculated). Should collaborative marital settlement agreements & final judgments - set forth parents' net income & child support calculation? Can collaborative team effectively preserve this baseline information in anticipation of later enforcement or modification?RussellParenting Plans
Harris v. Harris, 241 So. 3d 270 5th DCAMar 29, 2018Spouse can't complain on appeal about inadequate findings by trial court without bringing alleged defect to court's attention in motion for rehearing. See also Mathieu v. Mathieu, 877 So. 2d 740, 741 (Fla. 5th DCA 2004) HarrisFamily Law Procedure
Trigeorgis v. Trigeorgis,240 So. 3d 772 4th DCAMar 28, 2018Slander of title - Dad against son. Condo investment they were both going in on. Dad fronts $; son belatedly signs loan agreement. When son tries to sell, Dad files claim of interest in public records. Son loses on slander of titled claim. Son failed to present specific evidence showing how Dad's notice of interest played any part (let alone a material part) in inducing others not to deal with him. TrigeorgisProperty
Hedden v. Hedden, 240 So. 3d 148 5th DCAMar 16, 2018In 37-yr marriage, permanent alimony presumed for spouse who could earn minimum wage. Combo award of durational & permanent alimony improper when ongoing need for alimony shown. Court should base alimony on snapshot of existing financial circumstances, not on on possibilities likely but not yet realized, such as amt of SS benefits W might receiv or FH's future retirement. Compare flexibility to parties in #collaborativelaw #collaborative to consider, rather than a snapshot, a "moving picture" of their expected financial circumstances & interests, now and as they evolve, to avoid modification actions & further attorney fees & court involvement.HeddenAlimony
Robinson v. Robinson, 248 So. 3d 174 1st DCAMar 15, 2018On rehearing, court reverses order dismissing FH's lawsuit based on FW's venue motion. Potential grounds for dismissal discussed in earlier opinion should be addressed by trial court if raised by a proper motion. RobinsonFamily Law Procedure
Leslie v. Gray-Leslie, 187 So. 3d 380 5th DCAMar 14, 2018Striking pleadings. Court must still take evidence to support counterpetition, child's best interests. LeslieTimesharing
Subramanian v. Subramanian, 239 So. 3d 719 4th DCAMar 14, 2018Trial court erred by delegating to therapists & guardian ad litem authority to determine visitation. With reversal of 1 aspect of timesharing, trial court may reconsider entire plan & take additional testimony. SubramanianParenting Plans
LaMorte v. Testoni, 238 So. 3d 855 4th DCAMar 14, 2018Court initially entering order requiring child support payments has continuing jurisdiction to modify the amount & terms & conditions of the child support payments if section 743.07(2), Fla. Stat. applies - that section authorizes a court to require support "for a dependent person beyond the age of 18 years when such dependency is because of a mental or physical incapacity which began prior to such person reaching majority. LaMorte Child Support
Eberhart v. Eberhart, 238 So. 3d 4281st DCAFeb 23, 2018In their settlement agreement, parties should have defined clearly the "marital portion" of Navy pension benefits accrued during the marriage to which ex husband was entitled to half. EberhartMarital Settlement Agreements
Brooks v. Brooks, 239 So. 3d 758 1st DCAFeb 23, 2018Court quashes 3 subpoenas by wife for husband's medical, psychotherapist, pharmacy, employment records. Parent's medical records must be relevant to present ability to parent, so prior mental health of parents is rarely relevant or material in a child custody case. Ordered production of privileged medical records to judge for in-camera inspection, rather than directly to opposition, is ok, but, with no alleged calamitous event justifying invading privilege, disclosure shouldn't take place at all.BrooksEvidence
Perez v. Perez, 238 So. 3d 422 5th DCAFeb 23, 2018"Absent an agreement, a nonmarital asset may not be awarded to the non-owner spouse as equitable distribution." Court's distribution improperly included non-marital assets, i.e., property the divorcing couple had jointly deeded to their sons. Court lacked jurisdiction to compel nonparty sons to return properties to mom or dad. PerezEquitable Distribution
Clayton v. Poggendorf, 237 So. 3d 1041 4th DCAFeb 21, 2018Attorney no longer representing client principal still had apparent authority as agent, established by practice of receiving notices of late settlement payments and client curing default. Discussion of latent and patent ambiguity in agreements may guide drafters of collaborative marital settlement agreements. Patent ambiguities are on the face of agreement. Latent ambiguities in agreements don't become clear until extrinsic evidence is introduced and parties must interpret language in 2 or more ways. But courts can't give clear, unambiguous language in agreement meaning other than that the parties expressed; courts don't have free reign to modify contracts by supplying information the parties didn't choose to include. When language of settlement agreement was clear, trial court erred by receiving testimony about settlement negotiations, then finding the agreement to be ambiguous.Clayton Marital Settlement Agreements
Wells v. Wells, 239 So. 3d 179 2d DCAFeb 14, 2018Marital settlement agreement provision saying mom could live in home during daughter's minority and college contemplates property would then be sold. Can't read provision in marital settlement agreement as giving wife the right to live in home indefinitely simply by refusing to sell after daughter finishes college. She must now sell at mutually advantageous price.WellsMarital Settlement Agreements
Persaud v. Persaud, 244 So. 3d 410 5th DCAFeb 09, 2018Retroactive alimony must be based on recipient's need and payor's ability to pay. Under Section 61.082(h), Florida Statutes, trial court must consider tax consequences to both parties of prospective durational alimony. Substitute opinion replaces earlier one on retroactive support, tax consequences. PersaudAlimony
Soria v. Soria, 237 So. 3d 454 2d DCAFeb 07, 2018After divorce case was filed, FH transferred 30,000 shares of stock in closely held company to girlfriend, but no evidence countered his testimony it was for her work for company's benefit. No expert testimony about business value, but owner may testify to its value. When valuing business for equitable distribution, consider both company's assets and liabilities. Arbitrary par value ($1/share) bore no relationship to stock's market value. Court specified no valuation date. Value of personal goodwill in business (nonmarital) must be excluded from divisible marital enterprise goodwill. H claimed he WAS the business, which couldn't function without him.SoriaEquitable Distribution
Burnett v. Burnett, 237 So. 3d 447 1st DCAFeb 05, 2018Award of attorney fees can't be based solely on disparity of income; court must also consider parties' overall financial positions. Ct failed to account that W got $450,000 in liquid assets. BurnettAttorney Fees
Ash v. Campion, 247 So. 3d 581 1st DCAFeb 05, 2018Discussing criminal and civil contempt, court reverses $100,000 fine against W. If criminal contempt, no requisite protections provided. If civil contempt, no purge provision for fine to be coercive; no evidence of H's losses for fine to be compensatory. Very NON-collaborative behavior. Makar in dissent says, in flagrant disregard of parties' agreement not to harass, molest, or disturb each other, W "sent numerous harassing photographs, text messages, and voicemails that, charitably, can be described as outrageous, profane, and vile."AshContempt
Kirschner v. Kirschner, 244 So. 3d 11054th DCAJan 24, 2018Reviewing marital settlement agreement de novo, court finds trial court erred by finding FH's sale or refinance of home was a condition precedent to paying FW's equitable distribution. Payment of former wife's equitable distribution from sale proceeds or a refinance wasn't a condition precedent - only a source for payment. But the parties failed to say what would happen if the sale or refinance did not occur. When and how would ex become obligated to make equitable distribution payment? If home doesn't sell or isn't refinanced, when and how would ex become obligated to make equitable distribution payment? Appeals court sends case back to trial court to resolve latent ambiguity in MSA. Resolving ambiguity in a marital settlement agreement after receiving extrinsic evidence about the parties' intent does not impermissibly modify their agreement. The circuit court should have concluded former marital home may not have sold because former husband's asking price was consistently too high. The court also should have concluded FH, who had no motivation to sell, listed the home at an unrealistic price. Court substitutes this opinion on H's motion for clarification & rehearing. Fact resolution of ambiguity in MSA would not impermissibly modify parties' agreement, but merely would clarify the ambiguity.KirschnerMarital Settlement Agreements
Verrier v. Oaks, 235 So. 3d 1050 2d DCAJan 19, 2018Court imposed unsupportable restrictions terminating dad's contact with kids for at least 2 years.VerrierTimesharing
Wohlberg v. Conner, 234 So. 3d 841 4th DCAJan 10, 2018Be precise when writing marital settlement agreements! Fourth DCA remands case to consider parties' extrinsic evidence to resolve ambiguity about when equal timesharing would begin. Lesson from noncollaborative case: be precise when writing settlement agreements. With collaborative communications confidential, what could extrinsic evidence to resolve ambiguous provisions be? When circuit court resolves ambiguous time sharing agreement, it must interpret it in accordance with the child's best interests.Wohlberg Marital Settlement Agreements
Price v. Price, 233 So. 3d 525 2d DCAJan 05, 2018Equitable distribution reversed on issues about furniture, furnishings, a hot tub, entertainment equipment - how much $$ and time did parties spend to fight over "stuff" at trial, on appeal, after remand?PriceEquitable Distribution
Greenberg Traurig v. Starling, 238 So. 3d 8622d DCAJan 05, 2018Trial court strikes law firm's charging lien. It failed to file its notice of charging lien before the parties dismissed the case with no notice to law firm. Threatening letters from the firm to client were insufficient to perfect lien.Greenberg TraurigAttorney Fees
Robinson v. Robinson, 248 So. 3d 174 1st DCAJan 03, 2018Trial judge driven by "tipsy coachman" to the right result. FH said FW coerced him to sign settlement agreement w/ pix of him and his mistress. He waits 2 ½ years to try undoing final judgment. Too late: case dismissed. Intrinsic fraud - 1 year deadline.RobinsonMarital Settlement Agreements
Lockett v. Lockett, 235 So. 3d 1003 2d DCADec 27, 2017Order finding husband in default on alimony issue failed to state husband deliberately & willfully failed to comply with discovery orders. How much $$ for 2 motions to compel, 3 motions for contempt on discovery bickering?LockettContempt
Ramos v. Ramos, 230 So. 3d 893 4th DCANov 29, 2017Once owner proves he owned business before marriage, burden shifts to spouse to prove it became marital through enhancement of value. RamosEquitable Distribution
Brady v. Brady, 229 So. 3d 892 5th DCANov 09, 2017Alimony must be calculated on parties' net incomes, not gross incomes.BradyAlimony
Lancaster v. Lancaster, 228 So. 3d 1197 1st DCANov 06, 2017Trial court has independent duty to determine appropriateness of parents' child support agreements.LancasterChild Support
Kane v. Sanders, 232 So. 3d 1107 3d DCANov 01, 2017Contempt reversed. 2 doctors agreed on indefinite right of first refusal in parenting plan for daughters. Dad interprets restrictively (alleged 45-minute trip to grocery store triggered violation). Imagine the financial, emotional costs from parents' cross-sniping, cross-accusations, & nitpicking for years.
"No written parenting plan can be so complete and unambiguous as to address every eventuality that occurs with developing children over a course of years." "Good will and the best interests of the children are to be the lodestars for former spouses and parents when the parenting plan is incomplete or ambiguous."
Apply common sense to imprecise provisions for rights of first refusal in marital settlement agreements and parenting plans.
Huertas Del Pino v. Huertas Del Pino, 229 So. 3d 8384th DCANov 01, 2017If a party would receive larger benefits by deferring social security benefits, absent evidence suggesting contrary motivation, such a decision could be prudent investment strategy, thus not subject to imputation for alimony.Huertas Del PinoAlimony
West v. West, 228 So. 3d 727 5th DCAOct 27, 2017Reverses judgment adopting verbatim husband's proposed judgment, without a single edit. "It is difficult to believe, on such fact-intensive issues as presented here, that an attorney can be so omniscient as to the court's findings that they could be entirely correct without a single edit where the court made no rulings in open court." Ross v. Botha, 867 So. 2d 567, 572 (Fla. 4th DCA 2004) WestJudgments
Campos v. Campos, 230 So. 3d 553 1st DCAOct 24, 2017Parties litigated for 12+ years - from when 2 kids were preschoolers.CamposAttorney Fees
Goodman v. Goodman, 231 So. 3d 574 2d DCAOct 20, 2017Court must make findings re character of stock options as either (or both) a source of income or marital or nonmarital assetsGoodmanEquitable Distribution
Scudder v. Scudder, 228 So. 3d 703 2d DCAOct 20, 20176 month residency, subject matter jurisdiction never established in FL, despite parties' agreement.ScudderJurisdiction
Duncan v. Brickman, 233 So. 3d 4772d DCAOct 20, 2017Trial court failed to rule for 3 years on mom's contempt motions. Parents litigating more than a decade over child rearing. Baby when litigation began is now 12 years old.Duncan Contempt
Hoyt v. Chalker, 228 So. 3d 697 1st DCAOct 18, 2017Relocation: How can #collaborative team develop options to meet parties', children's interests? Among court's difficult decisions - How to allocate timesharing between parents. No abuse discretion denying mom's request to move to VA with 2 sons to be with new husband. HoytTimesharing - Relocation
Hodge v. Hodge, 227 So. 3d 1284 5th DCAOct 16, 2017Trial court misapplied Kaaa v. Kaaa factors to calculate passive appreciation of nonmarital property - 2 appeals!HodgeEquitable Distribution
Broga v. Broga, 227 So. 3d 239 1st DCAOct 11, 2017Court erred by imputed income to corporate pilot in appropriate geographic area. who had equal timesharing. Court failed to distinguish attorney fees for vexatious litigation from those that would've been spent w/o inappropriate litigiousness.BrogaAttorney Fees
Dukes v. Griffin, 230 So. 3d 155 1st DCAOct 11, 2017Unlike 2d and 4th districts, says trial court has no duty to list steps mom must take to reestablish majority timesharing. No statutory basis for requiring courts to list steps for dissatisfied parties to get more favorable timesharing. 6 rocky years of litigating timesharing, contempt, modifications. Could collaborative law have helped?DukesTimesharing
Schroll v. Schroll, 227 So. 3d 232 1st DCAOct 06, 2017Don't use date of filing balance of depleted money market used during divorce for parties' living expenses. Trial. Appeal. Remand. Amount of combined attorney fees? Could they have saved using collaborative law ?SchrollEquitable Distribution
Neville v. McKibben, 227 So. 3d 12701st DCAOct 05, 2017Blanket award of ultimate parental decision making is contrary to statutory concept of shared parental responsibility. Self-serving testimony that changing child's name to "carry on" family name was insufficient.Neville Parenting Plans
Kohl v. D'Ambrosio, 232 So. 3d 3834th DCAOct 04, 2017Former wife claims former husband lied on financial affidavit, resulting in wrong 2009 "final" judgment. Remand. KohlFamily Law Procedure
Perkins v. Simmonds, 227 So. 3d 646 4th DCAOct 04, 2017Bio dad financially supported & had strong relationship w/ child could pursue paternity action. Not in child's best interest to apply presumption of legitimacy at the cost of child's established relationship with bio dad.Perkins Paternity
Kuchera v. Kuchera, 230 So. 3d 135 4th DCASep 27, 2017Prejudgment interest due on alimony arrearages, despite alleged scorched-earth litigation by former wife. No case law in FL denying prejudgment interest in contract case on the basis of equitable considerations. KucheraAlimony
Bell v. Broch, 230 So. 3d 1252 4th DCASep 27, 2017Guidelines and final judgement ordering wife to pay husband child support conflicted with Marital Settlement Agreement re her yearly income to be used in calculations.BellMarital Settlement Agreements
InIn re Amendments to Florida Family Law Rules of Procedure, 227 So. 3d 115Supreme Court of FloridaSep 27, 2017Florida Family Law Rule of Procedure 12.4501 on taking judicial notice in family law cases reflects Fla Stat 90.204. 12.902(f)(3) - marital settlement agreement - simplified dissolutions: list last 4 digits of account #s.RulesFamily Law Procedure
Landau v. Landau,230 So. 3d 127 3d DCASep 20, 2017Probate court had inherent jurisdiction to freeze trust assets under court's supervision.LandauTrusts & Estates
Carson v. Carson, 226 So. 3d 37 5th DCASep 18, 2017Court cant's order compliant former husband to complete 8-week cooperative parenting program. Mom in contempt of timesharing plan: withheld kids from dad. She must attend classes.
CarsonParenting Plans
Buchanan v. Buchanan,225 So. 3d 10021st DCASep 13, 2017Wrong to require husband's LLC to continue paying Wife weekly stipend; she did no work for it; LLC wasn't a party.BuchananAlimony
Pulkkinen v. Pulkkinen, 226 So. 3d 352 1st DCASep 05, 2017FL must enforce sister state's order lawfully entered, even if it violates FL public policy re child's right to child support.PulkkinenChild Support
Smith v. Smith, 224 So. 3d 740Supreme Court of FloridaAug 31, 2017Where right to contract removed, court approval before marriage can be given legal effect, but ward may exercise right to marry. Marriage could be ratified by getting ok after it was solemnized. Supreme Court of Florida discussed "void" and "voidable" marriages. Hearing needed to verify ward understands marriage contract, wants marriage, relationship isn't exploitative.SmithGuardianship
Law Offices of Herssein and Herssein, P.A. v. USAA, 229 So. 3d 408 3d DCAAug 23, 2017No disqualification of judge, a Facebook friend of lawyer. Brace yourselves: Facebook friendship doesn't necessarily signify a close relationship! Facebook Friends - Use of data mining and networking algorithms reflects "astounding development in applied mathematics; it constitutes a powerful tool to build personal and professional networks; and it has nothing to do with close or intimate friendships of the sort that would require recusal."HersseinJudiciary
Miller v. Finizio & Finizio, 226 So. 3d 979 4th DCAAug 23, 2017Wife's voluntary acceptance of marital settlement agreement didn't bar legal malpractice claim. In malpractice case against Wife's former lawyers, she claimed they failed to get H's mandatory fin disclosures. Wife claimed lawyers told her to just sign marital settlement agreement; they'd pursue financial disclosures later. MillerMarital Settlement Agreements
Sturms v. Sturms, 226 So. 3d 1004 1st DCAAug 21, 2017Premarital drilling rights lost marital character when commingled w marital funds. Court double dipped - counted $75 K Jaguar twice. Equitable distribution reversed. Court had no jurisdiction to adjudicate property rights of nonparty 50 % owner of company.SturmsEquitable Distribution
Vilardi v. Vilardi, 225 So. 3d 395 -5th DCAAug 18, 2017Gap in spouses' earning abilities not sufficient basis for unequal distribution.VilardiEquitable Distribution
Bond v. Bond, 224 So. 3d 874 2d DCAAug 16, 2017Paying mortgage on home where child, other parent reside - factor into child support as in-kind contribution. BondChild Support
Cardona v. Paulhiac Casas, 225 So. 3d 384 3d DCAAug 16, 2017Former wife shouldn't have been named beneficiary of life insurance policy to secure child support. Life insurance policy to secure child support must be for benefit of child; no one else.CardonaBeneficiary Designations
Platinum Luxury Auctions v. Concierge, 227 So. 3d 685 3d DCAAug 16, 2017Settlement agreement, enforcement. Settlement agreement's terms circumscribe extent of Court's continuing jurisdiction to enforce agreement. Appellate ct quotes portion of sealed settlement agreement - central to issue on appeal. FL Rule Judicial Admin. 2.420(c)(9). Under the guise of enforcing the Settlement Agreement, the trial court impermissibly re-wrote it.Platinum Luxury AuctionsMarital Settlement Agreements
Strinko v. Strinko, 225 So. 3d 367 3d DCAAug 16, 2017OH order awarding grandparent visitation entitled to enforcement under Full Faith and Credit Clause of US Constitution.StrinkoTimesharing
DeStefanis v. Tan, 231 So. 3d 5373d DCAAug 02, 2017Same sex UK marriage - Italian & Malaysian dads. FL not convenient forum under UCCJEA. Neither dad was a US citizen; didn't now reside in FL, no witnesses in FL, no evidence in FL. Child (born in MO - surrogate) residing in NY with genetic dad. Ct should've considered time child spent living outside FL. Petitions for DOM in London & Miami-Dade. FL home state under UCCJEA - child lived in Miami-Dade for 15 months. Court must consider Section 61.520(2) inconvenient forum factors including how long child spent residing in NY. But no family in FL, no ties in FL, no FL witnesses, no FL property. Could #collaborativelaw have helped this family?DeStefanis Family Law Procedure - LGBTQ Issues
Dyal v. Dyal, 223 So. 3d 470 5th DCAJul 28, 2017Venue fight: Former Husband said, after divorce, ex-wife used up limited Disney free admission passes allocated to him. Former husband sues former wife for conversion and civil theft of Disney spouse pass allowing him limited free admissions. Compared to attorney fees, what were the Disney passes worth? Could collaborative resolution have helped?DyalProperty
Botta v. Ciklin, Lubitz & O.Connell, 222 So. 3d 6054th DCAJul 26, 2017Daughters' fight venue (Broward v. Seminole) against lawyers who drafted late mom's Powers of Attorney.Botta Trusts & Estates
H Gregory 1, Inc. v. Cook, 222 So. 3d 610 4th DCAJul 26, 2017Mandatory exclusive venue selection clause must be honored unless unreasonable or unjust.H Gregory 1Family Law Procedure
Fischer v. Fischer, 221 So. 3d 1290 1st DCAJul 20, 2017No alimony modification: FH change in circumstances not unanticipated or involuntary.FischerAlimony
Whissell v. Whissell, 222 So. 3d 5944th DCAJul 12, 2017Parties waived alimony; Court erred by not enforcing prenuptial agreement. Parties intended to take gross salary pymts under prenup in lieu of alimony out of Ch 61. & contempt powers.WhissellPrenuptial & Postnuptial Agreements
Spector v. Spector, 226 So. 3d 2564th DCAJul 12, 2017Ex-wife can't get attorney fees in divorce appeal against ex-Husband's new wife!SpectorAttorney Fees
Hua v. Tsung, 222 So. 3d 584 4th DCAJul 05, 2017Husband's dad transferred stock into son's name to avoid death tax; can't now claim stock still dad's.HuaEquitable Distribution
Sickels v. Sickels, 221 So. 3d 7785th DCAJun 30, 2017No finding of compelling reason to separate siblings (1 to stay w mom in FL, 2 to go w/ dad to VA).SickelsTimesharing
Threadgill v. Nishimura, 222 So. 3d 633 2d DCAJun 28, 2017Former husband agreed to calculate alimony based on gross income; usually based on net inc. Self employed h's business income means gross receipts minus ordinary, necessary expenses.Threadgill Alimony
Lord v. Lord, 220 So. 3d 5754th DCAJun 21, 2017If parties can't amicably divide personal property, court must do it for them. LordEquitable Distribution
Corporate Creations Enterprises v. Fons, 225 So. 3d 296 4th DCAJun 21, 2017For personal jurisdiction, can't ignore operating agreement of LLC specifying jurisdiction in FL.Corporate CreationsJurisdiction
Chittim v. Chittim, 230 So. 3d 9662d DCAJun 20, 2017Post-bankruptcy, Former Wife may still pursue attorneys fees against former husband. Former wife not judicially estopped from claim for fees; diss'n & bkrtcy proceedings didn't involve same parties.ChittimAttorney Fees
E-Commerce Coffee Club v. Miga Holdings, Inc., 222 So. 3d 9 4th DCAJun 18, 2017Internal contradiction in settlement agreement - patent ambiguity. Don't use "defective, obscure, or insensible language in your settlement agreements!E-Commerce CoffeeMarital Settlement Agreements
Nikolits v. Haney, 221 So. 3d 7254th DCAMay 31, 2017Appraiser can't "correct" errors amounting to changes in property appraiser's judgment. Homeowners may seek to prove the market or just value of property was less than Save Our Homes capped value.NikolitsProperty
Newman v. Newman, 221 So. 3d 642 4th DCAMay 31, 2017Self-employed spouses can control & regulate their income. Self-employed spouse's testimony, tax returns, business records may not reflect true earnings, wealth. Failure to comply with discovery may allow court to assign value to closely held business "as equity requires." Could outcome in collaborative approach have been better? What if they had openly exchanged financial info from the start? Avoid fees for prolonged discovery disputes, litigation? #collaborativelaw Newman Equitable Distribution
Spector v. Spector, 226 So. 3d 256 4th DCAMay 24, 2017When is homestead NOT exempt from court's contempt powers? Fraud against alimony creditor. Ex-husband quitclaims home to new wife & himself; title to life ins policy to her, too. Homestead protection no shield against ex who acts egregiously, reprehensibly, fraudulently. SpectorContempt
Downs v. Ledoux-Nottingham, 219 So. 3d 244 5th DCAMay 19, 2017Make-up visitation. FS Section 61.526, authorizes "any remedy" to enforce another state's child custody determination. Grandparents may pursue makeup visitation. Trial ct must decide if GP visitation would be in children's best interest. Col GP visitation order s.t. Full Faith & Credit - Ledoux-Nottingham v. Downs, 210 So. 3d 1217, 1219 (Fla. 2017). DownsTimesharing
Martinez v. Martinez, 219 So. 3d 259 5th DCAMay 19, 2017Dissolution; summary judgment. Son allegedly acting in concert with dad properly made a respondent in divorce. No need to specify separate cause of action against 3d party; it's incidental to the divorce. 3d parties whose property rights equitable distribution would affect are indispensable.MartinezEquitable Distribution
Rosaler v. Rosaler, 219 So. 3d 840 4th DCAMay 10, 2017Yellow diamond sold for $142,000. $60,000 went to wife's attorney & CPA fees. With no findings entitling Wife to separate award for temporary attorney fees, she'd bear them. Remand - more delay, fees & costs! Court must consider tax implications of alimony award. RosalerAttorney Fees
Robinson v. Robinson, 219 So. 3d 933 4th DCAMay 05, 2017Court abused discretion; modified agreed child support; dad changed jobs, income dropped. Consider writing in collaborative Marital Settlement Agreements baseline & conditions for later modification. #collaborative RobinsonMarital Settlement Agreements
Hua v. Tsung, 222 So. 3d 5844th DCAMay 05, 2017Husband and dad claimed family stock nonmarital, but wanted tax savings from transferring stock to husband during marriage. Husband and dad's desire to avoid 40% tax on stock resulted in presumption they'd lose 50% to wife! HuaEquitable Distribution
Hanson v. Hanson, 217 So. 3d 1165 2d DCAApr 28, 2017After equalizing assets, income, court improperly ordered husband to pay wife $86,000 more in fees. Husband already paid $47,277 towards wife's fees. >$130,000 just for wife. Husband grossed $6,842/mo. Wife's attorney fees = 1 ½ years of H's working! More than 20 % of marital assets she received. Don't know how much H's own attorney fees were. Appeals ct remands for further proceedings. More attorney fees, delay.HansonAttorney Fees
Wilkerson v. Wilkerson, 220 So. 3d 480 5th DCAApr 21, 2017Court may set initial child support obligation, impute income to incarcerated parent. May impute income to sex criminal in federal prison. Certifies case conflict. Voluntary crimes don't shield prisoner from obligation to support child. Court may establish support.WilkersonChild Support
Aranda v. Padilla, 216 So. 3d 652 4th DCAApr 12, 2017Error not to give dad holiday timesharing absent findings justifying such denial. Right to child on rotating holidays has become so routine & necessary, that to deny it requires factual findings. Parents should share travel costs for timesharing according to their financial means. ArandaTimesharing
Regan v. Regan, 217 So. 3d 914th DCAApr 12, 2017Former Wife cut expenses by > ½, court cut alimony she and Former Husband agreed he'd pay her. Should hidden strings be attached to agreed amount of alimony? Should how alimony is spent justify modification? If there are to be strings, conditions to spending alimony, say so in the marital settlement agreement. ReganAlimony
Hooker v. Hooker, 220 So. 3d 397 Supreme Court of FloridaMar 30, 2017Prenuptial agreement, but interspousal gifts of real property. Parties treated horse farm & home as marital. Evidence & conduct showed properties were interspousal gifts. Husband had requisite donative intent for 2 properties to be considered interspousal gifts. Standard of review: did competent substantial evidence support ct's finding donative intent? Wife could, did treat horse farm & home as her own, even though H pd living expenses from his separate assets. Wife active in design & constrn of horse farm; she took care of barn. Ct looked at conduct, not strict title. Husband transf'd prop during marriage to corp. H & W signed deed transf'g title, used prop for a decade as marital home.HookerPrenuptial & Postnuptial Agreements
Rorrer v. Orban, 215 So. 3d 148 3d DCAMar 29, 2017Post-divorce combat: 4 years more litigation & 60 motions! #collaborative #collaborativelaw. Combined fees & costs of $515,272.65 #collaborative #collaborativelaw ½ million dollars in attorney fees & costs in post-divorce case. Didn't even include appeal! #collaborative #collaborativelaw RorrerAttorney Fees
Zarzaur v. Zarzaur, 213 So. 3d 1115 1st DCAMar 27, 2017Court failed to limit time of order that Wife produce mental health records for 7 yrs. Court and parties must focus on Wife's present parenting ability and fitness.ZarzaurFamily Law Procedure
Myrick v. Myrick, 214 So. 3d 769 2d DCAMar 24, 2017Postjudgment litigation. ~$100K just for former husband's attorney fees. #collaborativelaw. Former wife failed to revisit amicably parenting plan that required parties to do that if FH relocated within 10 miles. Trial ct failed to make findings for award under inequitable conduct doctrine (Bitterman, 714 So.2d 356 Fla 1998). Court must explicitly find bad faith & apportion amt of fees, costs directly related to related to bad faith conduct. Could postjudgment #collaborativelaw have avoided costly modification/enforcement action? MyrickAttorney Fees
Bair v. Bair, 214 So. 3d 750 2d DCAMar 22, 2017Erred in computing marital portion of husband's interest in nonmarital boat business. How much did 2 experts, discovery, 3-day trial, 8-mo. delay, appeal & remand cost family? #collaborativelaw. Parties were $1 million apart on valuation. Court failed to include value of co's real property. Value of 1 parcel dropped significantly during the marriage, resulting in ct's overstating company's value. Erred in computing marital portion of H's interest in nonmarital boat business. Asset appreciation is a marital asset subject to equitable distribution when marital labor contributes to its value. Appreciation is a marital asset even if primarily created by inflation, market conditions, or other people. Retained earnings are a corporation's accumulated income after dividends have been distributed. Retained earnings acct is a bookkeeping acct, not a corporate cash savings account. Double dip: Ct can't consider same asset twice: can't order distribution of R/E & include them for valuation. How much marital labor actually contributed to enhanced value of business? Don't look at who "owns" what percentage of the enhanced value given the business's corporate structure. Battle of experts Ct accepts 19%, rather than 30%, discount for lack of marketability & control. No evidence undistributed pass through income was being retained for any noncorporate purpose. BairEquitable Distribution
Van Maerssen v. Gerdts, 213 So. 3d 952 4th DCAMar 22, 2017Court abused discretion. Awarded "undifferentiated" spousal & child support. Calculate them separately! Van MaerssenAlimony
Ocheesee Creamery v. Putnam, 851 F. 3d 1228 Eleventh Circuit Court of AppealsMar 20, 2017Florida violated First Amendment by prohibiting use of "skim milk" to describe product. Ocheesee CreameryConstitutional Rights
In re Amendments to Family Law Rules, 214 So. 3d 400Supreme Court of FloridaMar 16, 2017Florida Supreme Court adopts stand-alone Florida Family Law Rules of ProcedureRulesFamily Law Procedure
In re Amendments to Family Law Rules, 214 So. 3d 400Supreme Court of FloridaMar 16, 2017FL Supreme Court adopts Family Law Rule 12.210 allowing court discretion to appoint a guardian ad litem. "Family cases" includes "declaratory judgment actions related to premarital, marital, or post marital agreements." Interrogatories: Family Rule 12.340 - answering party may produce records in lieu of a written response if sufficient. Fla Sup Ct declines to adopt proposed amendment to Rule 12.610 to replace "immediate and present" danger w/ "imminent danger." Family Rule 12.280 - scope of discovery, protective orders, claims of privilege, electronically stored information.RulesFamily Law Procedure
Viscito v. Viscito, 214 So. 3d 736 3rd DCAMar 15, 2017Kaaa formula for marital share of appreciation in nonmarital property. Under Kaaa, marital share = ½ of ((loan-to-value ratio on date of marriage X current FMV) - current mtge balance). Trial ct properly denied voluntarily unemployed gambler permanent periodic alimony in 21-yr marriage. Unemployed gambler's conduct increased the aggregate mortgage debt, forced FW to use nonmarital property to get refinancing. ViscitoEquitable Distribution
Spradley v. Spradley, 213 So. 3d 1042 2d DCAMar 08, 2017Jailed brother could maintain claim against mom's estate, brothers for conversion of his legal documents. An "˜estate' isn't an entity that can be a party to litigation; name the personal representative instead. SpradleyTrusts & Estates
Asperbras Tecnologia v. Good Hope, 213 So. 3d 1061 3d DCAMar 08, 2017Upheld service of process by attorney in Brazil. Inter-American Convention's provisions regarding service of process neither mandatory nor exclusive. Florida courts may accept any method of service of process that doesn't contradict any self-executing international agreement or implementing statutes, or if the foreign state's law doesn't expressly prohibit that method. See Alvarado-Fernandez v. Mazoff, 151 So. 3d 8, 14 (Fla. 4th DCA 2014). Asperbras Family Law Procedure
Flinn v. Doty, 214 So. 3d 683 4th DCAMar 08, 2017Court allows foreclosing equitable lien on homestead for money paid to satisfy mortgage on property.FlinnProperty
Conlin v. Conlin, 212 So. 3d 487 2d DCAMar 01, 2017Base alimony on net income, not gross income.ConlinAlimony
Schafstall v. Schafstall, 211 So. 3d 1108 3d DCAFeb 22, 2017Mandatory to include in wife's income in-kind mortgage pymts H made. Include in wife's gross monthly income in kind contributions from her mom. Impute income to bookkeeper Wife. Expert testified wife's chronic fatigue syndrome was self-reported, not based on independent medical evaluation (IME).SchafstallAlimony
Duke v. Duke,211 So. 3d 1078 5th DCAFeb 10, 2017Court should have imputed to former wife interest income from her half of former husband's retirement account.DukeAlimony
Barsis v. Barsis, 209 So. 3d 654 5th DCAFeb 03, 2017Court violates mom's due process rights. Gave dad 100% time, but the only issue was place for exchange. BarsisTimesharing
AAF v. Department of Children and Families,211 So. 3d 271 4th DCAFeb 01, 2017Putative father's claimed he received no notice before termination parental rights. Man who failed to register with Florida Putative Fathers Registry under Section 63.054, Florida Statutes not entitled to notice. AAFDependency
Raton v. Wallace, 207 So. 3d 9785th DCADec 22, 2016No contempt; Marital Settlement Agreement specified counselor - who was no longer practical when mom relocated. Mom complied with intent of MSA by continuing taking kids for counseling.RatonContempt
Naime v. Corzo, 208 So. 3d 296 3d DCADec 21, 2016Wrong to restrict mom, child future relocation from Miami-Dade County. Mediated settlement agreement never addressed future relocation of child. Could parents have avoided years of litigation and saved $$$$ if they'd used the collaborative team model?NaimeTimesharing - Relocation
Nelson v. Nelson, 206 So. 3d 818 2d DCADec 16, 2016Asset transferred to irrevocable trust in marriage not subject to equitable distribution. Irrevocable trust is a separate legal entity from the divorcing parties. Assets held by nonparty LLCs, corps, partnerships, trusts ordinarily not divisible in divorce. Under Section 736.0602(1), settlor can't change irrevocable trust f/b/o ex wife & descendants. Trustee or beneficiary may apply to modify irrevocable trust, but ex-wife who was both trustee & beneficiary. didn't do that. Section 736.0602(1) doesn't authorize court to modify irrev trust to distribute its assets in divorce. Calif home ceased being a marital asset once transferred into irrevocable trust. To reach asset of irrevocable trust, court needs joined all contingent remainder beneficiaries - indispensable parties. Court impermissibly adjudicated property rights of a nonparty to the divorce: the trust. NelsonTrusts & Estates
Coffey-Garcia v. South Miami, 194 So. 3d 533 3d DCADec 16, 2016Attorney-client privilege: Witness must reveal lawyers consulted & when, but not the advice received.Coffey-GarciaEvidence
Harris v. Harris, 205 So. 3d 873 5th DCADec 02, 2016Need for alimony doesn't include voluntary support of grandson, daughter from another relationship. HarrisAlimony
Golson v. Golson, 207 So. 3d 321 5th DCANov 18, 2016Frmer husband can't modify alimony down for circumstances parties contemplated in Marital Settlement Agreement.GolsonAlimony
Henderson-Bullard v. Lockard, 204 So. 3d 568 5th DCANov 18, 2016Dad with notice of mom's relocation request not entitled to set aside judgment as void. Technical noncompliance with service requirements doesn't render judgment void. No due process violation requiring setting aside order allowing mom to relocate.HendersonTimesharing - Relocation
Ter Keurst v. Ter Keurst, 202 So. 3d 123 2d DCAOct 14, 2016Court incorrectly relied on abolished concept of special equity. Court failed to analyze unequal distribution factors.Ter KeurstEquitable Distribution
Berger v. Berger, 201 So. 3d 819 4th DCAOct 13, 2016There's still a presumption of permanent alimony after long-term marriage.BergerAlimony
Saucier v. Nowak, 200 So. 3d 1298 5th DCAOct 10, 2016No abuse discretion to award dad 45 minutes/day videoconferencing with child.SaucierTimesharing
Clemens v. Clemens, 200 So. 3d 237 5th DCASep 30, 2016No evidence to rebut presumption in long-term marriage for permanent alimony.ClemensAlimony
Guerra v. Guerra, 210 So. 3d 1712d DCASep 28, 2016Court can't say now if support obligations will be dischargeable later in bankruptcy.GuerraAttorney Fees
Koch v. Koch, 207 So. 3d 914 1st DCASep 28, 2016Court can't restrict parent's religious beliefs, even if unconventional. But consideration of religiously motivated acts that affect child's welfare can't be ignored. Dad's actions towards kids, threats of damnation, demonization of mom, caused kids severe distress. Dad's use of Biblical verses as a rod to justify severe punishments of kids was abusive. No violation of dad's rights by restricting discussion of "religious matters" during dad's time with kids. KochParenting Plans
Magwitch, LLC v. Pusser's West Indies Limited, 200 So. 3d 2162d DCASep 07, 2016No FL personal jurisdiction under Long Arm Statute - no personal jurisdiction: sole business contact was using a Florida fulfillment house to process distribute internet orders.MagwitchJurisdiction
Manubens v. Manubens, 198 So. 3d 10725th DCAAug 19, 2016Parent may request psychological evaluation only if mental condition in controversy and for good cause. Order compelling psychological evaluation too broad: must specify length of exam, type of testing, limits. Order compelling psych eval defective if it gives examiner carte blanche to perform testing, analysis. Open-ended order compelling psych eval departs from essential requirements of law, results in miscarriage of justice. ManubensTimesharing
Department of Revenue v. Shirer, 197 So. 3d 1260 2d DCAAug 17, 2016Trial court improperly considered child's SSI in calculating need for child support. Child's supplemental security income SSI was for his own disability. Can't cut child support for that - 61.30(11)(a)(2). Mom's IQ 70; Dad's 75 - Trial ct found they had no ordinary capacity to pay child support. But court made no findings re mentally challenged dad's current ability to maintain a job, earn income. 61.30(2)(b) - Ct may decline to impute income if history of unemployment / underemployment results from physical or mental incapacity or other circumstances over which parent has no control. ShirerChild Support
Palmer v. Palmer, 198 So. 3d 1035 5th DCAAug 12, 2016Former husband made much ado about nothing: award of website to former wife no one testified to or valued.PalmerEquitable Distribution
Loza v. Marin, 198 So. 3d 1017 2d DCAAug 12, 2016Court has no jurisdiction to extend child support beyond 18th birthday. When son graduated high school & turned 18, it's presumed he's independent. Florida Statute 743.07(2) (dependent child) applies if parties agreed or court finds child is dependent. 61.13(1)(a)(1)(a) - child ends when child reaches majority unless 743.07(2) applies or parties agree otherwise. Was child's dependency due to incapacity that began prior to reaching age of majority? Continuing jurisdiction to modify support is only during period provided for support. Support period is only until child reaches age of majority, parents agree otherwise or 743.07(2) applies. Has the child's continuing dependence after majority been adjudicated before his age of majority? Court had no subject matter jurisdiction to modify ch support after child turned 18. LozaChild Support
Gross v. Zimmerman, 197 So. 3d 1248 4th DCAAug 10, 2016Error to award cost of extracurricular activities when child had none. Parties never asked ct to take judicial notice of evidence or findings from temporary hearing. Don't expect court to judicially notice evidence considered at temporary relief hearing! Ask! Burden of proof was on dad to persuade court presumptive guidelines amount was inappropriate.GrossChild Support
Palmer v. Palmer,206 So. 3d 74 1st DCAAug 09, 2016No authority to deny attorney fees solely for failure to accept settlement offer. Offers of settlement (45.061(4)) and offers/demands of judgment don't apply in dissolution of marriage cases. After considering all circumstances, court may exercise its inherent powers and deny fees. 1st DCA certifies conflict with 4th in Hallac v. Hallac, 88 So.3d 253 (Fla. 4th DCA 2012) PalmerAttorney Fees
JP v. DP, 196 So. 3d 1274 1st DCAAug 04, 2016Can't know changing child's residence in 5 years will be in her best interest. Equal time w/ parents when child starts middle school doesn't mean moving would be in her best interests. Prospective-based analysis of best interest was impermissible, unsound. Trial court has no crystal ball. JPTimesharing
Dickson v. Dickson, 204 So. 3d 498 4th DCAAug 03, 2016Trial court must apply presumption favoring permanent alimony in 19 year marriage.DicksonAlimony
Mobley v. Homestead Hospital, Inc., 202 So. 3d 868 3d DCAJul 20, 2016Dates, places, names of consulted attorneys are generally not privileged. Intentions, thoughts, motivations for seeking legal counsel not protected by attorney-client privilege, if not based on communications with attorney. MobleyEvidence
Holaway v. Holaway, 197 So. 3d 612 5th DCAJul 08, 2016Post-valuation profits were passive income to Husband. Error to award to Wife. Distributions from business to H that he used for both parties' litigation expenses was a liability.HolawayEquitable Distribution
Freiha v. Freiha. 197 So. 3d 6061st DCAJun 28, 2016Absence of a parenting plan specifying a timesharing schedule is fundamental error. Saying the parents should continue working together to create their own timesharing schedule won't fly.FreihaParenting Plans
Martin v. Robbins, 194 So. 3d 5635th DCAJun 24, 2016Court should have found a supportive relationship; erred by denying petition to modify alimonyMartinAlimony
Smith v. Smith, 224 So. 3d 740 Supreme Court of FloridaJun 20, 2016Does FS 744.3215(2)(a), require ward to get court's approval before marrying? If court's ok to marry is required but not gotten, is ward's marriage is absolutely void? Voidable? Can court bless it later?
Where the right to contract has been removed under section 744.3215(2)(a), Florida Statutes, the ward isn't required to get court approval before exercising the right to marry, but court approval is necessary before such a marriage can be given legal effect.
Haritos v. Haritos, 193 So. 3d 1050 2d DCAJun 15, 2016No final judgment ever entered on financial matters. Court divorce parties, didn't decide support. Temporary order didn't merge into final judgment, which divorced parties but reserved jurisdiction on financial issues.HaritosFamily Law Procedure
Wichi Management v. Masters, 193 So. 3d 961 3d DCAMay 31, 2016Entitled to equitable lien if written contract allows or arises from conduct. Funds secured by equitable lien must be directly traceable to property in question. For equitable lien, debtor's interest in property must have been unjustly enriched.Wichi ManagementProperty
Maciekowich v. Maciekowich, 192 So. 3d 623 4th DCAMay 25, 2016In 22-year marriage, former husband's paying all household bills in and of itself established wife needed alimony.MaciekowichAlimony
RJ v. Department of Children and Families,187 So. 3d 3624th DCAMay 16, 2016Once a child adjudicated dependent, court may force DCF to render services. RJDependency
Steinman v. Steinman, 191 So. 3d 954 4th DCAMay 11, 2016Mom not in contempt for exposing kids on her time to Orthodox Jewish activities.SteinmanContempt
Feliciano v. Munoz-Feliciano, 190 So. 3d 2324th DCAMay 04, 2016Plain meaning of marital settlement agreement governs interpretation.FelicianoMarital Settlement Agreements
State Department of Revenue v. Hartsell,189 So. 3d 363 1st DCAApr 29, 2016Disestablishing paternity, good cause requirement for ordering genetic testing. DOR v. HartsellPaternity
Mills v. Mills, 192 So. 3d 515 5th DCAApr 29, 2016Husband forged wife's name on home equity loan. She didn't ratify it. Debt his sole, nonmarital debt.MillsEquitable Distribution
State Department of Revenue v. Ceasar, 188 So. 3d 989 1st DCAApr 25, 2016If paternity isn't in controversy, it's wrong to order dad and adult son to submit to genetic testing. DOR v. CaesarPaternity
Felice v. Felice, 194 So. 3d 1037 2d DCAMar 30, 2016Broad language of prenuptial agreement - wife waived all rights to appreciation in premarital home. Court follows Florida Supreme Court in Hahamovitch v. Hahamovitch, 174 So. 3d 983 (Fla. 2015) FelicePrenuptial & Postnuptial Agreements
Palmer v. Palmer, 199 So. 3d 919 5th DCAMar 24, 2016Trial court's decision not to restrict allergic child's exposure to dogs reversed. No dogs allowed for allergic child!PalmerParenting Plans
Abramovic v. Abramovic, 188 So. 3d 614th DCAMar 23, 2016Error to force spouse to make lump sum equalizing payment she couldn't afford.AbramovicEquitable Distribution
Neiditch v. Neiditch, 187 So. 3d 374 5th DCAMar 18, 2016Spouse may testify to premarital balance of thrift savings plan.NeiditchEquitable Distribution
Rautenberg v. Falz, 193 So. 3d 924 2d DCAMar 11, 2016Insufficient allegations of specific or general personal jurisdiction under long arm statute. Plaintiff fails to allege defendant committed tortious act within FL. No specific jurisdiction.RautenbergJurisdiction
Lentz v. Community Bank of Florida, Inc., 189 So. 3d 8823d DCAMar 09, 2016Florida's strong policy is to promote settlement, enforce mediated settlement agreements.LentzMarital Settlement Agreements
State Department of Revenue v. Haughton, 188 So. 3d 32 3d DCAMar 09, 2016No notice to DOR, interested party, violated its due process - void order terminating child support arrears.DOR v. HaughtonChild Support
Marquez v. Lopez, 187 So. 3d 335 4th DCAMar 09, 2016Trial Court failed to provide for equal timesharing w/o finding that to be in children's best interest.MarquezTimesharing
Farghali v. Farghali, 187 So. 3d 338 4th DCAMar 09, 2016Preserve alleged errors! Move for rehearing or risk losing appeal. Must alert the trial court to failure-to-make-findings issue in a motion for rehearing.FarghaliFamily Law Procedure
Magdziak v. Sullivan, 185 So. 3d 1292 5th DCAFeb 26, 2016Parenting plan legally insufficient under FS 61.13(2)(b). Too general, vague.MagdziakParenting Plans
Mata v. Mata, 185 So. 3d 1271 3d DCAFeb 24, 2016Once court appoints magistrate to take testimony, make findings, it can't substitute its judgment.MataFamily Law Procedure
Preudhomme v. Bailey, 204 So. 3d 91 4th DCAFeb 24, 2016Trial court may clarify parenting plan.PreudhommeParenting Plans
Loebs v. Loebs,185 So. 3d 721 2d DCAFeb 19, 2016Can't delegate decisions to kids; gratify their wishes at expense of parent's rights.LoebsParenting Plans
Dennis v. Dennis, 184 So. 3d 656 1st DCAFeb 10, 2016Exclude from alimony need amounts spent on adult child. Parent's support of adult child is an improper consideration in determining alimony need.DennisAlimony
Gomez v. Fuenmayor, 812 F. 3d 1005 11th CircuitFeb 05, 2016Hague Convention "grave risk" of harm defense. Grave risk - significant threats and violence by mom. Grave risk - Dad's girlfriend shot, mother's car vandalized, drugs planted. Dad flees for US with daughter. 11th Circuit upholds of grave risk of harm defense to wrongful removal claim. Serious threats and violence against child's parent can pose a grave risk of harm to child.GomezHague Convention
Ebanks v. Ebanks, 198 So. 3d 712 2d DCAJan 29, 2016Former spouse dies - 3 Cayman Island properties pass to surviving former wife. Decedent made will on date he filed for divorce - left property to his "survivor." Marital Settlement Agreement did not address Cayman Islands properties if 1 spouse predeceased other. Former wife wins.EbanksMarital Settlement Agreements
Tzynder v. Edelsburg, 184 So. 3d 583 3d DCAJan 27, 2016Final judgement fails to identify steps to reestablish unsupervised timesharing with child.TzynderTimesharing
Brennan v. Brennan, 184 So. 3d 583 4th DCAJan 27, 2016Trial court exceeds scope of remand; revisited value of assets, liabilities. Trial court improperly revisited value of dental practice, reduced duration of alimony. But trial court may hear evidence regarding parties' current income if support obligations still in play on remand. BrennanEquitable Distribution
David v. Textor, 189 So. 3d 871 4th DCAJan 20, 2016That retweets or other online postings may be embarrassing, doesn't mean it's cyberstalking. Michael Jackson holograms - patent infringement opponents. 1 sues for cyberstalking. For injunction against cyberstalking, conduct must cause substantial emotional distress. Trial court can't prohibit postings about a party or order removal of already posted materials. Prior restraints on speech are most serious, least tolerable infringement 1st Amendment rights. Heated rhetoric between warring businessmen isn't cyberstalking.DavidDomestic Violence
JP v. Florida Department of Children and Families, 183 So. 3d 1198 2d DCAJan 15, 2016There were grounds for TPR, the least restrictive means, & in child's manifest best interest. Child with nephrotic syndrome couldn't be safely reunited with mom because of her actions and inactions. Mom didn't support child's dietary restrictions, fed child pizza + potato chips, hopitalized many times. Dad sexually abused 1 of 3 daughters, youngest child a son, gave up rights to all 4 kids. Mom's continuing involvement w/ 3 kids not abused threatens their well-being, mental health. Upheld TPR. Courts take care in applying statute w/ nexus requirement in 39.806(1)(f) gone. Law amended 7/1/14: Proving nexus between parent's bad conduct to 1 child & harm to sibling not required. Courts be prudent: allow DCF to present evidence of nexus until constitutionality of 39.806(1)(f) can be resolved.JPDependency
In re SARD, 182 So. 3d 897 3d DCAJan 13, 2016Dismiss 17-year old Honduran's private petition for dependency. Honduran teen crosses border between Mexico & US, 9 days before age 18. Honduran teen claims dad abandoned & mom neglected him. Sought Special Immigrant Juvenile status visa. SIJ provision of Immigration Act protect abused, neglected, abandoned kids who illegally entered US. Special Immigrant Juveniles may seek special status to say in US, but only after state ct finds child dependent. SIJ status allows child in US illegally to jump to front of the line of those wanting to immigrate lawfully. What is in the child's best interest? What is in the country's best interest? Ch. 39 is not a gateway to citizenship for children here illegally, searching for better life.SARDDependency
Reed v. Reed,182 So. 3d 837 4th DCAJan 06, 2016No modification just because dad stabilized life & wanted more time with child. 5 yrs after settlement agreement, dad wanted 50/50 time, after sporadically exercising rights before then.ReedTimesharing
Jaeger v. Jaeger, 182 So. 3d 697 4th DCADec 20, 2015Attorney's charging lien may not apply against award of undifferentiated temporary support. Temporary undifferentiated support provides for needs and necessities of life of spouse, children. JaegerAttorney Fees
In re AW, 184 So. 3d 11792d DCADec 18, 2015Wrong to apply retroactively potential harm to sibling" amendment - 39.806(1)(f). violence between girlfriends, one abused the other's daughter but not her own. They all lived together. 2014 amendmt 39.806(1)(f) "sibling" includes child residing with or cared for by parent, even if unrelated.AWDependency
Portalp International SAS v. Zuloaga, 198 So. 3d 669 2d DCADec 18, 2015Hague Convention permits service of process by mail, FEDEX. PortalpFamily Law Procedure
Taylor v. Taylor, 183 So. 3d 1121 5th DCADec 18, 2015Latent ambiguity in Marital Settlement Agreement - division of City of Orlando Police Pension. City of Orlando Police Dept rejected using QDRO to enforce distribution of husband's pension as parties agreed. Extrinsic fact or extraneous circumstance altered parties' understanding of means of payment, duties. On remand, court must take evidence to clarify means for payment of pension and Husband's duties. TaylorMarital Settlement Agreements
Theodorides v. Theodorides, 201 So. 3d 141 3rd DCADec 16, 2015Rule 12.540 wrong avenue for review of substance of order changing child support.Theodorides Child Support
Gossett v. Gossett, 182 So. 3d 694 4th DCADec 16, 2015Equitable doctrine of renunciation / invalidating trusts. Son's renounced interests in allegedly invalid trusts - not required to return $$$ he'd received. Under any version of the trust, the son would have received more than what he'd already gotten. Trust settlor died the same day he and surviving spouse were in a divorce settlement meeting. What if they had pursued collaborative resolution? GossettTrust & Estates
Gustafasson v. Levine, 186 So. 3d 562 4th DCADec 02, 2015Mom fails to show grounds for personal jurisdiction over Swedish dad.GustafassonJurisdiction
Addie v. Coale, 179 So. 3d 534 4th DCANov 25, 2015Error not to consider all 10 alimony factors & rely on unsworn statements.AddieAlimony
Brown v. Brown, 180 So. 3d 1070 1st DCANov 23, 2015Improper to modify parenting plan absent changed circumstances. Income used for business purposes isn't considered income for child support.BrownParenting Plans
In re Estate of Murphy, 184 So. 3d 1221 2d DCANov 06, 2015What is "dependent relative revocation"? 107-year old woman, Virginia Murphy had $12 mm estate. no extended family. Trial court looked at her last 6 wills. Held most of her $$$ would pass to intestate heirs - yet unknown. 4 years of litigation later"¦48 heirs found. 44 never appeared in Virginia Murphy's 6 prior wills. 2d cousin alleges & court finds undue influence by lawyer, former FBI agent, military veteran. Second cousin gets residuary of estate as the last remaining devisee. Dependent relative revocation" presumes a testator would prefer a prior will be effected than die intestate. Is present will sufficiently similar to former will? If so, presume she would've preferred prior will. Any facts to overcome presumption? If not, which prior will or residuary devise reflects true intent? When there's undue influence, court would incline towards broader definition of "similarity". Court should start with documents, then look to outside evidence of intent prior to taint of undue influence. Pall of case cast long shadow over exemplary professional reputation of undue influencer. MurphyTrusts & Estates
McLane v. Automotive Resource Network Holdings, 178 So. 3d 5254th DCANov 04, 2015Affidavits critical for personal jurisdiction arguments!McLaneJurisdiction
Lippens v. Powers, 179 So. 3d 374 5th DCAOct 30, 2015No evidence to support stalking injunction against ex same sex partner who helped raise daughter. Daughter, conceived through Assisted Reproductive Technology (ART), hyphenated last name, had "familial relationship" with nonbiological mom. Text messages served legitimate purposes given familial relationship between nonbiological mom & daughter.LippensDomestic Violence - LGBTQ Issues
Noormohamed v. Noormohamed, 179 So. 3d 3795th DCAOct 30, 2015Court lacks jurisdiction to order wife to return jewelry to ex mother-in-law, not a party.NoormohamedJurisdiction
Vinsand v. Vinsand, 179 So. 3d 366 2d DCAOct 28, 2015County couple last resided together? Where does defending spouse now reside? Final judgment set aside after parents of autistic child spent a fortune and after great personal cost.VinsandFamily Law Procedure
RREF SNV-FL SSL, LLC v. Shamrock Storage, LLC, 178 So. 3d 90 1st DCAOct 26, 2015Husband transferred all shares in hotel to wife for $0. He, not his creditor, had burden to prove no fraud. RREFProperty
Teva Pharmaceutical Industries v. Ruiz, 181 So. 3d 5132d DCAOct 15, 2015Long arm jurisdiction, specific & general jurisdiction, minimum contacts, due process. See article: Corporate Challenges to Service of Process and Jurisdiction (2015). Sampson Collaborative Law Blog Corporate and Trust Challenges to Service of Process and JurisdictionTeva PharmaceuticalJurisdiction
Russell v. Pasik, 178 So. 3d 55 2d DCAOct 14, 2015Same Sex couple. 2 moms; bio half-siblings. Standing is the issue. Non-bio mom lacks standing to seek visitation w/ half-siblings not biologically connected to her. Bio-mom's children viewed other "mom" a parent from birth. Both women helped raise the children. Events preceded Obergefell v. Hodges (2015) and Brenner v. Scott (2014). RussellTimesharing - LGBTQ Issues
Gromet v. Jensen, 201 So. 3d 132 3d DCAOct 14, 2015Accounts husband funded with inheritance all nonmarital. No enhancement: They dropped in value.GrometEquitable Distribution
State Department of Revenue v. Pare, 177 So. 3d 663 1st DCAOct 12, 2015Admitted bio dad can seek child support from mom, even with no prior paternity order.DOR v. PareChild Support
JL-B v. Department of Children and Families, 175 So. 3d 944 1st DCAOct 12, 2015Order ok finding mom's 7 kids dependent, but adjudicating as to only 2 in phys altercation with her. JL-BDependency
Hutchinson v. Hutchinson, 185 So. 3d 5281st DCAOct 02, 2015Final judgment left parties in same financial positions, equally able to pay fees and costs.HutchinsonAttorney Fees
Wells v. Whitfield, 175 So. 3d 926 1st DCASep 30, 2015No findings of amount of S-corp's retained earnings to exclude from income for child support.WellsChild Support
BL v. Department of Children and Families, 174 So. 3d 1125 4th DCASep 30, 2015Reverse dependency adjudication. Evidence all hearsay: mom's statements to domestic violence investigating officers.BLDependency
Bailey v. Bailey, 176 So. 3d 344 4th DCASep 20, 2015Dad must submit to psychosocial & substance abuse evaluation. Was Baker Acted.BaileyTimesharing
Hahamovitch v. Hahamovitch, 174 So. 3d 983 Supreme Court of FloridaSep 10, 2015Important prenuptial agreement case! Prenuptial agreement: each spouse shall be sole owner of property titled in his/her name. Prenuptial agreement: Each spouse waived & released rights to property titled in other's name. Prenuptial agreement: - Waiver bars any claim to share assets titled in other spouse's name. Prenup:Makes no difference if assets were acquired in the marriage due to parties' marital efforts. Prenuptial agreement -Makes no difference if assets grew in value due to parties' marital efforts.HahamovitchPrenuptial & Postnuptial Agreements
Airsman v. Airsman, 179 So. 3d 342 2d DCASep 09, 2015Mom can't change daughter's surname from dad's last name. No competent, substantial evidence name change was in child's best interest or necessary. AirsmanParenting Plans
Temares v. Temares, 201 So. 3d 646 3d DCASep 02, 2015Quash order for psychiatric exam. No showing mental health "in controversy" or "good cause" for exam. TemaresTimesharing
Berg v. Young, 175 So. 3d 8634th DCASep 02, 2015Prenuptial agreement bars claim to equitable distribution of family business. Court bifurcated proceedings. Round 1: premarital agreement valid. Round 2: Prenuptial agreement: Appellate court takes fresh [de novo] look. "Title presumption" controls. Prenup: title presumption: any property titled in 1 name is that person's separate property. Title presumption barred claim to enhancement, even if due to marital earnings or labor. Prenuptial agreement entitled Husband to attorney fees from wife he spent to defend her failed challenge to agreement. BergPrenuptial & Postnuptial Agreements
Niekamp v. Niekamp, 173 So. 3d 1106 2d DCAAug 26, 2015Depressed dad not granted so much as a weekly phone call with kids. Trial court failed to set a schedule or benchmarks for dad to reestablish parenting. Error to distribute nonexistent or depleted asset used to pay for support, living, or litigation. Inconsistent to deny alimony, find dad incapable of parenting yet able to become gainfully employed. NiekampTImesharing
Kyriacou v. Kyriacou, 173 So. 3d 11112d DCAAug 26, 2015Reverse unequal distribution. Court failed to consider 10 unequal distribution factors.Kyriacou Equitable Distribution
Hooker v. Hooker, 174 So. 3d 507 4th DCAAug 26, 2015Prenuptial agreement; assets; interspousal gifts. Gift requires: 1. donative intent, 2. delivery or possession, 3. surrender of dominion & control of property. Was there intent to divest sole owner of all dominion and control over a 1/2 interest in the property? No testimony husband otherwise affirmatively acknowledged wife had an interest in property; she just believed that. Husband's non-actions in regards to property and wife's contributions to property don't change the analysis - no gift! Including spouse's name in sale docs solely to establish she had no homestead interest doesn't show donative intent. By including spouse's name in sale docs, husband was ensuring the buyer of unburdened title. HookerPrenuptial & Postnuptial Agreements
Blevins v. Blevins, 172 So. 3d 568 5th DCAAug 21, 2015No basis for modification of timesharing. No modification: Location of parties homes known at time of final judgment. No modification: Parents' inability to communicate doesn't satisfy substantial change requirement.BlevinsTimesharing
Weaver v. Weaver, 174 So. 3d 482 4th DCAAug 19, 2015No justification for unequal distribution of equity in marital property.WeaverEquitable Distribution
Floyd v. Walker-Gray, 174 So. 3d 1034 1st DCAAug 14, 2015Evidence established dating violence. Mom gets injunction for 14-year old. 8th graders' relationship more significant than mere acquaintances. Injunction sticks.FloydDomestic Violence
Kemp v. Kemp, 171 So. 3d 243 1st DCAAug 14, 2015Court effectively made improper interim equitable distribution of bank accounts.KempEquitable Distribution
Stoltzfus v. Stoltzfus, 172 So. 3d 526 2d DCAAug 12, 2015For alimony, interest on 401(k)s and equalizing payment wife received are income.StolzfusAlimony
Toribio v. City of West Palm Beach, 171 So. 3d 813 4th DCAAug 12, 2015Substituted service of process on ex-girlfriend quashed. But she'd stabbed him, he wasn't living with her. Default judgment void.ToribioFamily Law Procedure
Hall v. Hall, 171 So. 3d 817 4th DCAAug 12, 20152-page handwritten Marital Settlement Agreement valid as to matters covered. Court could resolve matters on which Marital Settlement Agreement was silent: child support, alimony, timesharing, attorney fees.HallMarital Settlement Agreement
Lopez v. Lopez,190 So. 3d 117 4th DCAAug 05, 2015Motion for rehearing nonfinal order unauthorized, doesn't toll time for appeal. LopezFamily Law Procedure
Somasca v. Somasca, 171 So. 3d 780 2d DCAJul 31, 2015Error not to treat as marital property the reduction in mortgage on nonmarital property using marital funds. Distinguish between appreciation in overall value of asset and paydown of mortgage that causes increase in equity.SomascaEquitable Distribution
Larwa v. Department of Revenue Ex Rel Roush, 169 So. 3d 1285 5th DCAJul 31, 2015Parent's child support obligation ends when child turns 18, except if dependent is incapacitated. When child is emancipated, trial ct loses subject matter jurisdiction to modify or extend support. But dependent adult may bring separate action for support under Florida Rule of Civil P. 1.210(b). LarwaChild Support
Statewide Guardian Ad Litem Program v. AA, 171 So. 3d 174 5th DCAJul 27, 2015Trial court should have granted DCFs petition to terminate mom and dad's parental rights. Clear & convincing evidence of abuse and in children's manifest best interest to terminate rights. Court erred by concluding TPR wasn't "least restrictive means" of protecting kids. Children entitled to permanency. Mom's boozing & drug taking bf battered her when she was drunk and her son who tried to help. Mom lived in squalor; lied; failed to complete case plan; took no steps to protect 4 children from abuser. "Least restrictive means" test for TPR doesn't mean there are no available alternatives. Test means must use measures short of termination if they'll permit safe reestablishment of parent-child bond.GALDependency
Harrell v. Badger, 171 So. 3d 764 5th DCAJul 24, 2015Trustee breach fiduciary duty improperly invaded principal of trust. Trustee failed to give 60 days' notice of intent to invade principal. Decantation of assets from original trust into 2d trust was invalid.HarrellTrusts & Estates
Tucker v. Tucker, 171 So. 3d 158 4th DCAJul 22, 2015Stock valuation - error to "split the difference" average experts' opinions. Stock valuation - error to rely on attorney's unsworn statement re value. TuckerEquitable Distribution
OICL v. Department of Children and Families, 169 So. 3d 1244 4th DCAJul 22, 2015Deny petition for dependency to help child get a Special Immigration Juvenile Status visa. With SIJS visa, child could apply for green card and fast track to US citizenship. When evaluating private dependency petitions, trial courts should consider five factors: (1) the nature, severity and frequency of the abuse, neglect or abandonment; (2) the time that has elapsed between the abuse, neglect or abandonment and the filing of the petition; (3) is child presently at a continued, but not necessarily imminent, risk of harm before turning 18; (4) availability of a caregiver capable of providing both supervision and care; and (5) any other health dependency statutes as worded present a situation ripe for potential misuse to bypass immigration laws. Trial judge doesn't set immigration policy or make humanitarian gestures to let alien minor stay in US.OICLDependency
Dickson v. Dickson, 169 So. 3d 287 5th DCAJul 17, 2015Shared parental responsibility on school. Parents must confer, agree. If impasse, present dispute to court. Court must then determine child's best interests. No evidence returning child to former school & changing schedule would promote his best interests. Unsworn arguments and statements about factual matters don't constitute evidence. If modification is in child's best interests because of parents' inability to agree on school, court may adjust schedule.DicksonParenting Plans
Dravis v. Dravis, 170 So. 3d 849 2d DCAJul 15, 2015Marital funds commingled with nonmarital cash gifts made account marital. Depleted acct included in distribution. Even though there was evidence misconduct caused depletion, the trial judge made no specific finding to that effect.DravisEquitable Distribution
Fosshage v. Fosshage, 167 So. 3d 525 3d DCAJul 15, 2015Reverses order allowing relocation of child from Florida Keys to Wisconsin. Mom's new boyfriend interfered w/ dad's timesharing. Modification & relocation different standards. Dad can't avoid relocation requirements by shoehorning relo petition into modification statute.FosshageTimesharing - Relocation
Sikora v. Sikora, 173 So. 3d 1028 2d DCAJul 10, 2015No need for alimony to maintain "two home lifestyle" while market rebounded. No evidence to support 3.5% as reasonable rate of return for income on retirement accounts. On rate of return on retirement accts, no agreement by experts and no evidence of historical rate.SikoraAlimony
JB v. Florida Department of Children and Families, 170 So. 3d 780Supreme Court of FloridaJul 09, 2015TPR case - denied mom's claims trial attorney ineffective; Florida Supreme Court answers certified questions. Calls for new procedure in TPR cases to raise claims of ineffective assistance of counsel when not apparent from record.JB v. DCFDependency
JB v. Florida Department of Children and Families, 170 So. 3d 780Supreme Court of FloridaJul 09, 2015Criminal standard of ineffective assistance of counsel doesn't apply in TPR cases. Indigent's right to counsel in termination of parental rights proceedings is to effective assistance. Florida Supreme Ct establishes standard for determining if attorney assistance in TPR was constitutionally ineffective.
Temporary procedure for bringing claims in TPR proceedings counsel's assistance was ineffective. Constitutional right to effective assistance of counsel derives from due process clause of article I, Section IX of Fla Constitution. Interest in finality is heightened in TPR context by child's interest in reaching permanency. Standard for effective assistance: strong presumption atty represent'g parent provided professional assistance. Parent must id specific errors of commission or omission evidencing a deficiency in exercise of reasonable, professional judgment. Parent must show deficient representation so prejudiced TPR proceeding that, but for it, parent's rights wouldn't have been terminated. If parent meets test, vacate order terminating parental rights and return case to circuit court.
Stantchev v. Stantcheva, 168 So. 3d 313 5th DCAJul 02, 2015Wife should bear half loss in value of funds husband transferred to Bulgaria. When husband transferred US $100,000 to Bulgaria, husband didn't know wife was going to seek divorce.StantchevaEquitable Distribution
Richeson v. Richeson,170 So. 3d 842 5th DCAJul 02, 2015Trial court erred in ordering sale of property with no pleading for partition.RichesonEquitable Distribution
Suleiman v. Yunis,168 So. 3d 319 5th DCAJul 02, 2015Vacate ex parte emergency order that kids live with dad. Mom moved from Orange to Polk County w/o dad's consent, but no evidence of Gielchinsky emergency. Once mom contested initial ex parte order, dad had burden to show evidence supported issuing it. Decision to change temporary timesharing must be based on child's best interest, not as a sanction. SuleimanTimesharing
MM v. Department of Children & Family Services,170 So. 3d 8403d DCAJul 01, 2015Florida Rule of Juvenile Procedure 8.345(b) - request for termination of supervision. Court should not have left dad's future contact with teenage kids solely up to them. Dad had unqualified ability to return to ct to seek modif., elimination of visitation restrictions. MMDependency
Carroll v. Israelson,169 So. 3d 239 4th DCAJul 01, 2015Man fails to change will after divorcing wife; dies a month after divorce. FS 732.507(2) protects divorced persons from inattention to estate planning. 732.507(2), provisions of wills affecting surviving ex spouse: void upon divorce or annulment.CarrollTrusts & Estates
San Pedro v. Law Office of Paul Burkhart,168 So. 3d 299 4th DCAJul 01, 2015Charging lien - attorney must prove up amount by testimony or fee expert.San PedroAttorney Fees
Elias v. Elias, 168 So. 3d 301 4th DCAJul 01, 2015Before deviating, trial court must determine child support guidelines.EliasChild Support
Drouin v. Stuber,168 So. 3d 3054th DCAJul 01, 2015Mom can't get Rule 1.540 relief from default paternity judgment. Mom alleged violation of nonparty "legal father's" (ex-husband's) due process. Mom's ex husband's constitutional rights are personal; she could not assert them vicariously. Mom alleged child born during marriage to her ex was presumed his and he was indispensable party. Mom alleged failure to join presumptive legal dad establishing bio dad's parental rights rendered paternity judgment void.DrouinFamily Law Procedure
Sowell v. McConnell, 167 So. 3d 521 5th DCAJun 29, 2015Husband must reimburse wife for portion of medical bills paid during separation.SowellChild Support
Dottaviano v. Dottaviano, 170 So. 3d 98 5th DCAJun 26, 2015No findings wife was voluntarily unemployed to impute income to her. Woman diligently trying to find a job. Husband had burden to show she was employable + jobs were available. Court should have partitioned home. Special circumstances - no other significant marital assets.DottavianoAlimony
Banks v. Banks, 168 So. 3d 273 2d DCAJun 24, 2015Reverses award of 2-year durational alimony in 33-year marriage.BanksAlimony
Goldman v. Estate of Goldman,166 So. 3d 927 3d DCAJun 17, 2015Inherent authority sanction bad faith award Moakley v. Smallwood attorney fees. Moakley v. Smallwood sanctions: need detailed findings of bad faith acts causing extra fees.GoldmanAttorney Fees
Martinez v. Izquierdo,166 So. 3d 947 4th DCAJun 17, 2015Domestic Violence Court may limit in personal use of guns by law enforcement officer.MartinezDomestic Violence
Carmouche v. Tamborlee Management, Inc., 789 F. 3d 1201 11th Circuit Court of AppealsJun 15, 2015No general personal jurisdiction in Florida. Jurisdictional discovery showed def's limited FL activities rendered it not "at home" in FL. No general personal jurisdiction in FL over Panamian excursion operator in Belize. Fla Stat Section 48.193(2). In contract between def & cruise line, def listed PO Box in Key West as principal place of business. Contract's forum selection clause specified SD of FL IF Carnival were a party; but it wasn't a party here. Declaration of Def's co-founder said PO Box in Key West a mistake. No continuous, systematic connections with FL to render d "essentially at home" in FL.
In only "exceptional" cases will foreign corp's connections render it "at home" other than place of incorp'n or princ. place of business. Maintaining US bank accounts alone aren't enough to create general personal jurisdiction. Foreign corporation can't be subject to general jurisdiction here unless its activities here closely approximate activities that ordinarily characterize a corporation's place of incorporation or principal place of business.
Department of Revenue v. ANJ, 165 So. 3d 846 2d DCAJun 10, 2015Failure to file child support guidelines worksheet. Worksheet is mandatory. Error to credit dad for support of a child he did not actually pay. Abuse of discretion to fail to award support retroactive to 24 months before support petition filed.ANJChild Support
Kingland Estates, Ltd. v. Davis 3d DCAJun 10, 2015Barbados defendant's dismissed from RICO case. No long arm personal jurisdiction. Sales of shares in family owned company to hold Barbados property. Ms. Knox sued Barbados def's + 2 relatives: They forced me to sell shares for less than fair market value. Alleged FL conduct: (1) Posted anonymous threats on blog, (2) delivered false records in FL. (3) lied in Miami court proceeding, (4) tampered with Miami potential witness. Alleged crimes, torts committed in FL created basis for long arm jurisdiction. Long arm jurisdiction if tortious acts committed within FL. Plaintiffs met neither prong of Venetian Salami test for personal jurisdiction. Unrefuted affidavits by Barbados defendants: We weren't involved in alleged internet blog! Plaintiffs spent years trying, but failed to tie blog posts to anyone, including those they sued. After years of trying, plaintiffs failed to ID posters of offending statements on blog.Kingland EstatesJurisdiction
Bisel v. Bisel, 165 So. 3d 833 4th DCAJun 06, 2015Hearing notice fails to notify former wife court would rule on request to increase child support.BiselFamily Law Procedure
Shaw v. Shaw, 177 So. 3d 977 2d DCAMay 29, 2015Reverses trial court's refusal to divorce same sex couple married in MA. 2d District follows Brandon-Thomas v. Brandon-Thomas. Prior Shaw opinion in August 2014: 2d DCA Trial court refused to grant dissolution and incorporate collaborative agreement.ShawCollaborative Practice - LGBTQ Issues
Haywald v. Fougere,164 So. 3d 786 1st DCAMay 28, 2015Must deduct alimony, child support before determining ability to pay attorney fees. HaywaldAttorney Fees
Tucker v. Tucker,165 So. 3d 798 4th DCAMay 27, 2015Charging lien can't be used to secure time to enforce, adjudicate lien. Must determine if enforcing charging lien on alimony would deprive ex-wife of daily sustenance or minimal necessities of life.TuckerAlimony
Edgar v. Firuta,165 So. 3d 758 3d DCAMay 20, 2015Court should have allowed NC mom to testify by phone. New Fla. Rule Civ. Pro. 1.451. Rule 1.451 effective 1/1/14 allows trial ct discretion to permit testimony by phone for good cause, even if dad objected.EdgarEvidence
Bronstein v. Bronstein,167 So. 3d 462 3d DCAMay 20, 2015Quashing order depriving mom of contact with 6-year old son for 4 months. Quashed order allowing 6-year old boy to live in CO with dad. He alleged mom committed fraud. Order entered w/o proof or hearing, on dad's unsworn motion attaching private investigator's report mom was w/ ex-boyfriend.BronsteinTimesharing
Badgley v. Sanchez, 165 So. 3d 742 4th DCAMay 20, 2015Unequal distribution reversed. Must begin with equal distribution. For other than equal distribution, court must consider, make fact findings regarding 9 factors. 61.075(1)(a)-(j), (3). BadgleyEquitable Distribution
Corona v. Harris,164 So. 3d 159 1st DCAMay 15, 2015Error to use best interest standard until nonrelative 1st shows natural mom unfit. No best interest analysis unless and until proof of unfitness or substantial threat of harm to child.CoronaPaternity
Fowler v. Fowler,166 So. 3d 188 1st DCAMay 15, 2015Premature appeal - reserved jurisdiction to determine child support, parental responsibility.FowlerFamily Law Procedure
Brooks v. Brooks,164 So. 3d 162 2d DCAMay 15, 2015Nothing requires trial court to hold person in contempt for violating timesharing plan. No error to compel non-majority time-sharing parent to seek court permission to relocate, even after move. No error to compel dad to file petition to relocate, even after he already had moved. BrooksContempt
Jamin v. Marchandise, 164 So. 3d 7343d DCAMay 13, 2015Upheld order approving parents' emails establishing temporary parenting plan. Temporary order continues until court enters final order with parenting plan, support & timesharing schedule.JaminParenting Plans
Robertson v. Robertson, 164 So. 3d 87 4th DCAMay 06, 2015Uninvited ex shines flashlight in ex-wife's window three nights constituting stalking.RobertsonDomestic Violence
JBJ Investment of South Florida, Inc. v. Maslanka,163 So. 3d 726 5th DCAMay 01, 2015Reformation - lis pendens on omitted property continues; court may require bond.JBJProperty
Gilroy v. Gilroy,163 So. 3d 674 2d DCAApr 29, 2015Trial court failed to continue hearing - ex wife late filed financial affidavit. Family Rule 12.285(e)(1) requires updated financial affidavit. Nonwaivable; mandatory.GilroyFamily Law Procedure
Beckstrom v. Beckstrom,183 So. 3d 1067 4th DCAApr 29, 2015If court orders payment of fees over time, must justify specific plan selected.BeckstromAttorney Fees
Sisca v. Sisca,165 So. 3d 689 4th DCAApr 24, 2015Abuse discretion to make wife pay husband's attorney fees; he earned 3X what she did.SiscaAttorney Fees
Brandon'Thomas v. Brandon'Thomas,163 So. 3d 644 2d DCAApr 24, 2015FL court must honor valid Mass. same-sex marriage & grant FL divorce. No legit govt interest served by precluding FL ct from exercising jurisdiction for dissolution of same-sex marriage.Brandon-ThomasMarriage
Gilliard v. Gilliard,162 So. 3d 1147 5th DCAApr 24, 2015Reversing judgment awarding permanent periodic alimony, based on improper imputation of income & incorrectly using gross rather than net income; and reversing unequal distribution of marital assets without sufficient findings. GilliardEquitable Distribution
Brandon'Thomas v. Brandon'Thomas, 163 So. 3d 644 2d DCAApr 24, 2015FL court must honor valid Mass. same-sex marriage and grant Florida divorce.Brandon-ThomasMarriage
Megiel-Rollo v. Megiel,162 So. 3d 1088 2d DCAApr 17, 2015Reform trust (736.0415) to correct drafting error and add list of benefits.Megiel-RolloTrusts & Estates
CD v. Department of Children and Families, 171 So. 3d 7341st DCAApr 17, 2015TPR order does not pass the least restrictive means test. Prospective adoptive aunt would allow contact with mom. Kids wouldn't be harmed; would be safe if supervised visitation. No termination of parental rights, even if "little or no bond" between child and mom. CDDependency
Broga v. Broga, 166 So. 3d 183 1st DCAApr 15, 2015Past work history alone is insufficient to impute income. No specific findings re qualifications & relevant employment community to impute income. Prevailing income in community, not from a relocation, is to be used in imputing income. BrogaChild Support
Morgan Stanley Smith Barney, LLC v. Gibraltar Private Bank & Trust Co., 162 So. 3d 10583d DCAApr 15, 2015Service on hourly employee quashed - not valid service on corp 48.081.Morgan StanleyJurisdiction
BK v. Department of Children and Families, 166 So. 3d 866 4th DCAApr 15, 2015Affirming termination of parental rights of incarcerated dad.BKDependency
Liberatore v. Liberatore, 200 So. 3d 76 5th DCAApr 10, 2015Court's function in implementing appellate mandate purely ministerial. When court errs in valuing or distributing marital assets, entire distribution plan must be reversed. Each distribution of marital asset/liability interrelated; forms overall scheme fair to both parties. Liberatore Equitable Distribution
Maestrales v. Flaherty, 183 So. 3d 1036 - 5th DCAApr 10, 2015GIVE THE DOG BACK!! Sanctions on stepson and attoney - frivolous appeal.MaestralesAttorney Fees
In re YV, 160 So. 3d 576 1st DCAApr 09, 2015Child emigrates alone from Honduras. Private petition for dependency may proceed. Dependency statute does not require events occurred in FL. Parens patriae interest to protect child within jurisdiction. FL has jurisdiction unless/until child is in custody of Sec of Health and Human Services.YVDependency
Horowitz v. Horowitz,160 So. 3d 530 2d DCAApr 01, 2015Reversing domestic violence injunction - no cyberstalking by accused's posting to own Facebook.HorowitzDomestic Violence
Law v. Law, 163 So. 3d 553 3d DCAApr 01, 2015Law firm subject to 57.105 fee award. No basis for seeking lien against homestead. Proceeds from homestead exempt from law firm's claim to attorney fees owed.LawAttorney Fees
AS v. Department of Children and Families,162 So. 3d 335 4th DCAApr 01, 2015Father did not abandon child: parental rights hadn't yet been established. TPR reversed. Prospective parent can't "abandon" child. Consider acts only after paternity is established.AS v. DCFDependency
In re RT (KK v. Department of Children and Families), 164 So. 3d 112d DCAMar 20, 2015Quashing court-ordered assessments of stepsons imposed condition without notice to parties. Requiring stepsons to undergo therapeutic assessments was not even remotely related to reasons for initial no-contact order. Required assessments was not meaningfully designed to address circumstances that brought children into care. Required assessments was not the least intrusive means possible to protect the children.RTDependency
Kobe v. Kobe,159 So. 3d 986 1st DCAMar 18, 2015Amount of alimony awarded and income imputed to former wife exceeded her stated need.KobeAlimony
Martinez v. Guardian of Smith, 159 So. 3d 394 4th DCAMar 18, 2015Court failed to find appointment of health care surrogate and preneed guardian was contrary to ward's best interests. Rebuttable presumption designated preneed guardian entitled to serve. Presumption could only be overcome by specific, factually-supportable finding appointing person was contrary to ward's best interests. Trial court failed to honor health care surrogate designation. No shown abuse of proxy's powers. MartinezGuardianship
Rollet v. Gwenaelle,159 So. 3d 351 3d DCAMar 11, 2015Dismissed French wife's complaint for lack of personal jurisdiction. Wife sued French husband for equitable rescission of assignment of contract to buy Miami condo. Wife alleged husband fraudulently or with undue influence assigned contract to foreign entity without her consent. Husband & wife, French citizens, lived in Dubai. Wife failed to rebut husband's affidavit of no connection to FL. No allegation alleged fraudulent assignment took place in Florida; no sworn proof from plaintiff to support jurisdiction. With no counter-affidavit rebutting challenge to personal jurisdiction, Husband's affidavit stood unrebutted.RolletJurisdiction
Purin v. Purin,158 So. 3d 752 2d DCAFeb 25, 2015Obligor's retirement doesn't mandate termination of alimony. Retirement merely allows trial court to revisit parties' respective needs and ability to pay.PurinAlimony
Kelly v. Spain,160 So. 3d 78 4th DCAFeb 25, 2015Homestead exemption husband alone got inures to wife's benefit after his death. Homestead application filed by one spouse inures to other spouse, if both permanently resided at homestead. Transfer of homestead property between wife and husband through survivorship constitutes no change of ownership triggering reassessment. KellyTrusts & Estates
Butler v. Prine,158 So. 3d 748 2d DCAFeb 20, 2015Court didn't adequately consider reasonableness of legal work underlying $93,000 fee award. ButlerAttorney Fees
Haeberli v. Haeberli, 157 So. 3d 489 5th DCAFeb 13, 2015Contempt reversed - motions not noticed for hearing: no due process.HaeberliContempt
Baker v. Baker, 157 So. 3d 491 5th DCAFeb 13, 2015Temporary change in timesharing reversed - failure to plead, prove substancial change circ.BakerTimesharing
Juchnowicz v. Juchnowicz,157 So. 3d 497 2d DCAFeb 13, 2015Alimony: Court must specify expenses Wife claimed & the Court rejected and say why.JuchnowiczAlimony
Jonas v. Jonas, 155 So. 3d 12894th DCAFeb 11, 2015Florida's taking jurisdiction would interfere with NJ exercise of jurisdiction. FL may have subj matter jurisd to adjudicate collateral attack on domesticated judgment IF extrinsic fraud. But claims re management of constructive trust in discharge of ex-H's obligations weren't in the same category. Former husband wasn't challenging validity of NJ judgment. Comity, priority made NJ appropriate forum.JonasJurisdiction
Jonas v. Jonas, 155 So. 3d 1289 4th DCAFeb 11, 201512 years of litigation enough! Dad must litigate in NJ, not FL.JonasJurisdiction
Atkinson v. Atkinson, 157 So. 3d 473 2d DCAFeb 11, 2015When is living with a man not "cohabitation with a male"? Tenant, John Doe, had no intimate, supportive relationship with former wife. They never line danced together! Having male tenant wasn't "cohabitation with a male" triggering termination of ex-wife's alimony. Finding "cohabitation" sufficient to cut off alimony requires more than mere presence of another person under recipient's roof. John Doe was not a cohabitant; he was just a lodger. Ex wife and he shared a roof, but not their lives.AtkinsonMarital Settlement Agreements
Card v. Card,160 So. 3d 469 2d DCAJan 30, 2015Ex wife invited error she complained about on appeal, ie, cap on her temporary attorney fees. CardFamily Law Procedure
SDS-IC v. Florida Concentrates International, LLC,157 So. 3d 389 2d DCAJan 30, 2015Failure to comply with Hague Conv. on Service Abroad invalidated service of process. Service of process void in Hong Kong for failing to comply with Hague and FL law.SDS-ICFamily Law Procedure
JAI v. BR,160 So. 3d 473 2d DCAJan 30, 2015Paternity established 60 days after man's signed voluntary ackn, without fraud, duress. JAIPaternity
Patel v. Patel,162 So. 3d 165 5th DCAJan 30, 2015Home awarded to husband; court should have directed he try to refinance the home in his own name.PatelEquitable Distribution
Spreng v. Spreng, 162 So. 3d 168 5th DCAJan 30, 2015Attorney fee order lacked findings, but without motion for rehearing, error not preserved. SprengAttorney Fees
Rudnick v. Harman,162 So. 3d 116 4th DCAJan 28, 2015Spike in dad's income wouldn't recur; error to use higher income for child support.RudnickChild Support
Perez v. Fay,160 So. 3d 4592d DCAJan 23, 2015Reverses ruling mom must speak English only and no Spanish to daughter.PerezParenting Plans
Panopoulos v. Panopoulos, 155 So. 3d 12302d DCAJan 23, 2015Appeal dismissed. Notice filed too late. Count days from initial not corrected order.PanopolousFamily Law Procedure
In re Amendments to Florida Family Law Rules of ProcedureSupreme Court of FloridaJan 22, 2015New Florida family law rule allows court to take testimony by audio or video for good cause.RulesFamily Law Procedure
Florida Dept. of Financial Services v. O'Connor, 155 So. 3d 479 1st DCAJan 20, 2015Amounts owed under divorce judgment enables claim to debtor's unclaimed property. Ex-wife can garnish ex-husband's unclaimed accounts held by Dept of Financial Services; no sovereign immunity. State just a custodian of property.FDFS v. O'ConnorChild Support
Jarrard v. Jarrard,157 So. 3d 332 2d DCAJan 07, 2015Downward modification alimony. FH established substantial change in circumstances. Alimony should have been modified downward. 60+-year old Former Husband's income dropped > 50%. Whether a proven change is substantial and sufficient, material, permanent, & involuntary - legal conclusions reviewed de novo. "Mixed" standard of review - sequence of 2 or more reviews. Presumption trial court's legal conclusions from facts are correct. Reviewing trial court's decision party has not met burden of proof & persuasion. #1: Does comp subst evid support movant's claim? #2:Defer to trial ct on matters of credibility. Accept disputed evidence, reasonable inferences in light most favorable to upholding ruling. #3: In this deferential light, was the trial ct, in light of the evidence, required to conclude movant established burden on legal issues?JarrardAlimony
Wiesenthal v. Wiesenthal,154 So. 3d 484 4th DCAJan 07, 2015For civil contempt,must find present ability to comply with purge & ID source of payment. Finding a party got rid of assets doesn't substitute for finding present ability to pay.WiesenthalContempt
Nucci v. Target Corporation, 162 So. 3d 146 4th DCAJan 07, 2015Order compelling discovery of Facebook photos upheld. Photos plaintiff posted on social media sites highly relevant. Limited privacy interest if any, in posted pictures. Generally, pictures posted on social networks are not privileged or protected by right of privacy, despite user's privacy settings. NucciEvidence
Winder v. Winder,152 So. 3d 836 1st DCADec 12, 2014Improper to assign dissipated accounts used for living. No misconduct.WinderEquitable Distribution
Brummer v. Brummer,153 So. 3d 338 5th DCADec 12, 2014Court made no finding psychological evaluation, counseling in children's best interest. Court must also find father had ability to pay for evaluation.BrummerTImesharing
Diaz v. Diaz,152 So. 3d 743 3rd DCADec 03, 2014Term of durational alimony can't exceed duration of marriage.DiazAlimony
Elias v. Elias, 152 So. 3d 749 4th DCADec 03, 2014Trial court's threshold determination prenuptial agreement was unambigous wrong. Prenup was ambiguous, rationally susceptible to more than one construction.EliasPrenuptial & Postnuptial Agreements
RC v. Department of Children and Families,150 So. 3d 12773d DCANov 26, 2014Reversing order directing mom to submit to pregnancy test with no due process. Patently obvious trial judge acted for reasons of her own rather than any rule of law. Constitutional right to refuse medical treatment unless there is a compelling state interest great enough to override right. Quoting Hamilton, court finds judge made no pretense of following any legislative directives or intentions.RCDependency
Rudolph v. Rosecan,154 So. 3d 381 4th DCANov 26, 2014Mom of 22-year old autistic man not an "interested person" for guardianship. Autistic son's dad was plenary guardian. Order incorporated parenting & timesharing plan. Dad had ultimate decision making authority if, after conferring, parties disagreed, on major decisions. Mother not an "interested person" for purposes of annual accounting & guardianship financial matters. Parenting plan gave mother no right to or interest in financial decisions guardian made for son. She had no standing.RudolphParenting Plans
Gillislee v. Florida Department of Revenue, 150 So. 3d 2941st DCANov 20, 2014Fundamental error goes to case's foundation or merits of action. DOR failed to credit dad's child support payments in calculating retroactive constitutes fundamental error.GillisleeChild Support
Albu v. Albu,150 So. 3d 1226 4th DCANov 19, 2014Providing support to needy wife by dividing his Social Security income not abuse of discretion.AlbuAlimony
Moore v. Kelso-Moore, 152 So. 3d 681 4th DCANov 19, 2014Temporary attorney fees - Insufficient findings of reasonableness of hours. Block billing made findings impossible. Excessive hand holding. Award inconsistent with ct's pronouncements. Wife's attorney hours (500.3) unreasonable for "about the same work" H's attys spent 154.35 hours. Comparison allowed. Court implies discovery of other side's hours spent on similar tasks is relevant. MooreAttorney Fees
Castillo v. Castillo,150 So. 3d 1255 4th DCANov 19, 2014Grants writ of prohibition. Court failed to allow Husband due process. Court failed to allow husband to present argument, evidence prior to ruling. Abrupt ruling would place reasonably prudent person in fear of not receiving fair hearing.CastilloFamily Law Procedure
Gerber v. Gerber,153 So. 3d 3042d DCANov 14, 2014Ok to clarify partial settlement agreement - make mechanism for medical reimbursement clearer. Clarifying agreement didn't grant former wife new benefit, but merely enumerated method for recovering former husband's half of kids' medical expenses.GerberMarital Settlement Agreements
Citrus Cty Hosp Bd v. Citrus Mem Health Foundation, 150 So. 3d 1102 Supreme Court of FloridaNov 13, 2014Special law impaired foundation's contracts.County Hospital BdAgreements
Phillips v. Phillips,151 So. 3d 58 2d DCANov 07, 2014Vacates expired domestic violation injunction entered without legally sufficient basis because of unintended collateral consequences.PhillipsDomestic Violence
Giddins v. Giddins, 151 So. 3d 54 1st DCANov 06, 2014Court errs by adopting Marital Settlement Agreement without first giving wife opportunity to be heard on her objections.GiddensMarital Settlement Agreements
Spaulding v. Shane,150 So. 3d 852 2d DCANov 05, 2014Prison sentence constitutes a change in circumstances, which eliminated the purpose for injunction. SpauldingDomestic Violence
Krift v. Obenour,152 So. 3d 645 4th DCANov 05, 2014Revolving rotating timesharing - a material departure from plan parties requested.KriftTimesharing
Seilkop v. Barker,148 So. 3d 865 1st DCAOct 29, 2014Chapter 751 temporary custody terminates once fit mom can meet child's needs. "Fit parent" means one who hasn't "abused", "abandoned", "neglected" child. "poor parental judgment" is not neglect. Underage drinking, poor romantic choices isn't neglect. Makar, concurring: Bad, or even terrible, childrearing does not render one unfit parent.SeilkopDependency
Hawthorne v. Butler, 151 So. 3d 23 4th DCAOct 16, 2014Injunction despite sex offender's probation condition of no contact. Victim could still pursue sexual violence injunction under 784.046 upon sex offender's release from prison.HawthorneDomestic Violence
CB v. Department of Children and Families, 148 So. 3d 8335th DCAOct 16, 2014Evidence insufficient father needs anger management counseling. - 8.410(b)(4).CBDependency
Wyandt v. Voccio,148 So. 3d 543 2d DCAOct 15, 2014Requirements for stalking injunction under section 784.0485, Florida Statutes. WyandtDomestic Violence
Pashtenko v. Pashtenko,148 So. 3d 545 2d DCAOct 15, 2014Failure to state legal grounds to deny stalking injunction petition 784.0485(5)(b), Fla. Stat. 784.0485 sets forth required form & substance of petition for an injunction against stalking.PashtenkoDomestic Violence
Nordt v. Nordt,159 So. 3d 133 3d DCAOct 15, 2014Husband and attorney sanctioned with 57.105 fees for frivolous appeal devoid of merit.NordtAttorney Fees
Frazier v. Goszczynski, 161 So. 3d 542 5th DCAOct 10, 2014Twisted, distorted view of law of adverse possession. Color of title refers to "a claim of title exclusive of any other right" founded on a written instrument of conveyance. Color of title requires grantee accepts deed in good faith & with belief it's a legitimate conveyance of title. Nonsense: asserting valid consideration of conveyance from oneself to oneself is love & affection one has for oneself. Adverse possession law wasn't enacted to give legitimacy to actions of fortune hunters and mischievous interlopers.FrazierProperty
Ayra v. Ayra,148 So. 3d 1422d DCAOct 01, 2014Wife's alimony need - earning $5,000/month as police officer not a viable option. AyraAlimony
Herbst v. Herbst,153 So. 3d 290 2d DCAOct 01, 2014Marital Settlement Agreement required payment of nonmodifiable alimony to former wife continuing beyond her remarriage. Provision in MSA obligating the former husband to pay nonmodifiable alimony for life of former wife controlled over Fla Stat 61.08. Parties may enter into divorce settlement agreements imposing obligations trial court couldn't otherwise impose.HerbstMarital Settlement Agreements
Kohl v. Kohl, 149 So. 3d 127 4th DCAOct 01, 2014Negligent transmission STD may be asserted on common law negligence principles. Former wife asserted count against Former Husband for assault from transmission of HPV, failure to warn or take precautions. Suit for negligent transmission of STD need not be predicated on violation of statute - FS 384.24. Did person know or have constructive knowledge he or she harbors the disease? Court declines to open Pandora's box by imposing a duty in negligence for engaging in "high risk" sex. Tort for negligent transmission HPV can be based only actual knowledge person carries disease, not on constructive knowledge. KohlNegligence
Clark v. Clark,147 So. 3d 655 5th DCASep 19, 2014Unpled issues tried when a party doesn't appear aren't tried by consent. Improper to try unpled issues in absentia. Alimony and fee awards reversed.ClarkFamily Law Procedure
Valente v. Barion,146 So. 3d 1247 2d DCASep 12, 2014Durational or permanent alimony in 12-year marriage? Court must find clear and convincing evidence permanent more appropriate than durational alimony.ValenteAlimony
EH v. Department of Children and Families, 147 So. 3d 6164th DCASep 10, 2014Dependency of newborn. Mother has an untreated mood disorder with a violent component towards a child. Look at nexus between parent's mental disorder and risk of danger to child. Trial court need not wait idly until abuse occurs before adjudicating dependency.EH v. DCFDependency
Shaw v. Shaw,166 So. 3d 892 2d DCAAug 27, 2014Collaborative law - same sex married Massachusetts couple. Trial court refuses to grant dissolution and incorporate collaborative agreement. Court certifies to FL Supreme Court issue for immediate resolution re: same sex marriage. Questions of great public importance: Does FL law prohibit dissolution of same-sex marriages other states allow? Does Florida's ban on same-sex marriages, refusal to recognize them unconstitutionally limit constitutional guaranties? Constitutional guaranties include: full faith and credit, access to courts, equal protection, right to travel. ShawCollaborative Practice - LGBTQ Issues
VCB v. Shakir, 145 So. 3d 9674th DCAAug 27, 2014Reversing denial of grandparents' adoption & TPR of dad. Dad's abandonment of child harmed child to point dad forfeited liberty interest & privacy right to raise child. Child's right to a stable home environment provided by grandparents must prevail.VCBDependency
McGee v. McGee,145 So. 3d 955 1st DCAAug 26, 2014Reversing order transferring venue, no finding substantial inconvenience or undue expense. Case could not be transferred to county where proceeding couldn't have been brought initially. McGeeFamily Law Procedure
Anderson v. Durham,162 So. 3d 65 1st DCAAug 20, 2014Reasonableness of an alimony-obligor's retirement is but 1 factor in deciding whether to lower alimony.AndersonAlimony
Chadbourne v. Chadbourne, 146 So. 3d 75 1st DCAAug 18, 2014Reversed denial of atty fees. Husband left 26-year marriage with $17 m, W < $1 mm. Requiring wife to pay remaining $200 K in atty fees would inequitably diminish her equitable dist award.ChadbourneAttorney Fees
Pierson v. Pierson, 143 So. 3d 1201 1st DCAAug 18, 2014Trial court abused discretion granting mom ultimate authority over children's religious upbringing. Citing Wisconsin v. Yoder, court finds no clear affirmative showing religious activities will harm child. Wrong to restrict noncustodial parent's right to expose child to religious beliefs. No evidence children were harmed by exposure to dad's religious beliefs or activities as Jehovah's Witness.PiersonParenting Plans
Ballard v. Ballard,158 So. 3d 641 1st DCAAug 07, 2014Trial court misapplied Kaaa v. Kaaa to exclude pay down of mortgage as marital. Kaaa, 58 So. 2d 867 (Fla. 2011) held passive appreciation in nonmarital property by market forces alone constitutes a marital asset. Court abused discretion by including a diminished account in equitable distribution without finding improper spending of funds. Sums diminished during dissolution for purposes related to marriage should be excluded in equitable distribution scheme. Exception: one spouse intentionally dissipates assets for his/her own benefit & for a purpose unrelated to marriage. To included diminished account, Court must specifically find intentional misconduct. BallardEquitable DIstribution
Rolison v. Rolison, 144 So. 3d 6101st DCAAug 01, 2014Mom moved from FL to GA before dad filed for diss'n. Relocation statute did not apply.RolisonTimesharing - Relocation
Wiggins v. Tigrent, Inc., 147 So. 3d 762d DCAJul 30, 2014Void versus voidable judgments - Default judgment v. nonresident void for lack of personal jurisdiction. No waiver of objection to personal jurisdiction by waiting until after entry of default. De novo review on whether judgment by default is void for lack of personal jurisdiction. Judgment entered against one over whom court lacks personal jurisdiction is void. No time limitation on setting aside void judgment. If void, trial court must vacate it. No discretion. Looking to similar federal rules, ct concludes defaulted party may challenge judgment as void even after default. Looking to affidavits, ct finds them sufficient to invoke long arm statute, but not to support general personal jurisd. No substantial and not isolated activity in FL arising from defendant's contacts in FL unrelated to the litigation. No specific personal jurisdiction: insufficient minimum contacts with Florida to satisfy due process. No "connexity" between alleged wrongful acts and Florida. Acts of corporate employee performed in corporate capacity don't form basis for personal jurisdiction over him.WigginsJurisdiction
Mills v. Johnson,147 So. 3d 1023 2d DCAJul 25, 2014Court erred in accepting, adopting timesharing schedule that did not address holidays. MillsParenting Plans
Pryor v. Pryor,141 So. 3d 1279 1st DCAJul 22, 2014Vacating temp domestic violence injunction and order extending it.PryorDomestic Violence
In re AR, 143 So. 3d 449 2d DCAJul 18, 2014Failure to find termination was least restrictive means of preventing harm to child. For TPR under section 39.806(1)(d)(1), ct must consider (1) length of parent's incarceration, if termination is least restrictive means to protect child from harm and if termination of parental rights is in child's manifest best interests.In re ARDependency
Peterson v. Lundin,148 So. 3d 784 2d DCAJul 18, 2014Reversing order allowing replevin of dog. Fact dispute re whether parties entered into revocable license or were to co-own Krystal, Bedlington Terrier. Order directing return of possession of dog should have been stayed pending appeal and posting $20,000 bond.PetersonFamily Law Procedure
Biden v. Lord,147 So. 3d 632 1st DCAJul 16, 2014Delaware Attorney General can't intervene re purpose for DuPont's Nemours Foundation. Intervention by the Delaware Attorney General would injure original litigants and interests of justice would not be served.BidenFamily Law Procedure
In re IB,142 So. 3d 919 5th DCAJul 11, 2014Insufficient evidence to revoke mother's consent to adoption - no duress. Trial court must determine if mother's consent should be struck on another basis under Fla Stat Section 63.2325.In re IBAdoption
Maddox v. Bullard,141 So. 3d 1264 5th DCAJul 11, 2014Order for Rule 1.360 psychological examination must specify condition, scope of exam. Order giving psychologist "carte blanche" to perform any psychological inquiry, testing analysis improper.MaddoxFamily Law Procedure
Futernick v. Trushina, 146 So. 3d 63 3rd DCAJul 09, 2014Parties must perform contract for sale of marital residence. Contract for sale failed to refer to former husband's right of first refusal.FuternickMarital Settlement Agreements
In re Amendments to Florida Family Law Rules of Procedure, 142 So. 3d 831Supreme Court of FloridaJul 03, 2014New rules for parenting coordinators. Amends Family Law Rule 12.742 and forms. New Rules for Qualified and Court-Appointed Parenting Coordinators. Rules 15.000 - 15.210. New Florida parenting coordinator forms.RulesFamily Law Procedure
In re Amendments to Florida Supreme Court Approved Family Law Forms, 142 So. 3d 856Supreme Court of FloridaJul 03, 2014New forms - injunction for protection against stalking, 784.0485, Florida StatutesFamily Law FormsFamily Law Procedure
Sorgen v. Sorgen, 162 So. 3d 45 4th DCAJul 02, 2014Commingled inherited asset in joint acount made it marital. Proceeds from sale of inherited home commingled with joint funds. Wife did not overcome presumption of gift of ½ of funds to husband.SorgenEquitable Distribution
Holland v. Holland,140 So. 3d 1155 1st DCAJun 30, 2014Error to modify agreed temporary timesharing schedule. No findings of substantial change in circumstances or re best interests of the children to modify timesharing.HollandTimesharing
Olson v. Robbie, 141 So. 3d 6364th DCAJun 18, 2014Joe Robbie's children - no personal jurisdiction over Minnesota resident. No specific jurisdiction under long arm statute. Terms of contract, not familial relationship between parties, determines if FL has jurisdiction over nonresident. Contract itself must require performance in FL in order to invoke FL jurisdiction under section 48.193(1)(g). Venetian Salami hearing - handful of visits to FL friends insufficient to establish gen'l long arm jurisdiction. Sister's status as co-trustee of Florida trust until its termination in 2011 insufficient to establish jurisdiction. Status as a director, filing annual rpts, or svc as trustee in now-defunct Florida trust, are insufficient.OlsonJurisdiction
Carnicella v. Carnicella,140 So. 3d 6975th DCAJun 13, 2014Reversing equitable distribution and ordering new trial. Court abdicated judicial responsibility, adopting almost verbatim 25-page proposed final judgment. Adopting proposed order verbatim is suspicious, suggesting court forgot or confused central issues. Husband should have received credit for mortgage payments between date of filing petition and trial. Obligations on Husband imposed by final judgment exceeded imputed income. Delayed ruling of 6 months unreasonable when other red flags were raised; but no bright line test. Facts reflected delay plus indication something was "seriously amiss on the merits." Court failed to attribute any premarital equity in home to husband's premarital contributions.CarnicellaEquitable Distribution
Lutz v. Rutherford,139 So. 3d 501 2d DCAJun 06, 2014Court reserved jurisdiction in final judgment to award attorney fees; could rule on charging lien.LutzAttorney Fees
Kilnapp v. Kilnapp,140 So. 3d 1051 4th DCAJun 04, 2014Temporary injunction freezing accounts reversed. Husband had no oppty to present evidence regarding removal of funds from frozen accounts. Court only heard from wife's witness, then ended hearing 2 hours early, before wife or husband's accountant could testify.KilnappFamily Law Procedure
Sanchez v. Suasti,140 So. 3d 658 3d DCAMay 28, 2014Hague Abduction Convention. Brazilian dad has a "right of custody". Hague Convention - mom can't change children's country of residence (Brazil) without dad's consent. Brazilian dad's right to prohibit mom from changing country of residence allowed him to force children's return.SanchezHague Convention
Adelberg v. Adelberg,142 So. 3d 895 4th DCAMay 28, 2014Court failed to impute income from employment and investments. Wife admitted she had no intent to look for a job; expert testified she was qualified.AdelbergAlimony
Sanchez v. Marin, 138 So. 3d 1165 3d DCAMay 21, 2014Failure to afford due process by allowing evidence of acts not specified in petition.SanchezDomestic Violence
Turnier v. Stockman, 139 So. 3d 397 3d DCAMay 21, 2014Affirming parenting plan ordering deaf child to live with dad most of school year. Deaf child to attend Florida School for the Deaf and the Blind FSDB. No expert testimony or GAL required. The trial court did not abuse its discretion in failing to appoint a GAL where not required by section 61.401.TurnierParenting Plans
Kozell v. Kozell,142 So. 3d 891 4th DCAMay 21, 2014Affirming denial of modification of child support. Dad's petition alleged only a decrease in income, but not unanticipated, involuntary, or permanent decrease. Evidence supported finding that dad controlled and could manipulate how much income he receives and when; decrease voluntary.KozellChild Support
Fichtel v. Fichtel,141 So. 3d 593 4th DCAMay 21, 2014Upholds denying wife permanent alimony and awarding durational alimony - long-term marriage.FichtelAlimony
Aquilina v. Aquilina,141 So. 3d 597 4th DCAMay 21, 2014Reversing award of alimony to former husband. Rejects argument court erred by allocating mortgage payment in alimony award, because mtge was to be paid off in near term. Order barring modification of alimony when mortgage and HELOC were paid, because such payoffs were anticipated, is "patently inequitable". By awarding alimony to cover mortgage & HELOC, court refused to consider likely reduced need once loans were paid. Court's award ignored probable future changes in circumstances; paradoxical to state court did anticipate such changes.AquilinaAlimony
In re Adoption of DPP v. CP, 158 So. 3d 633 5th DCAMay 21, 2014Reversing an order vacating final judgment of adoption. Reverses order terminating parent-child relationship between adoptive mom and parties' 5-year-old child. The circuit court had subject matter jurisdiction when it first granted the adoption. Other mom was estopped from challenging validity of the adoption judgment she helped procure. Trial court's focus on parties' status as two unmarried adults was misplaced. It would be unconscionable to allow one parent to invoke jurisdiction of court for the sole purpose of creating a parent-child relationship between other parent and child, then to allow her to destroy that relationship. Fifth District Court of Appeal reinstates final judgment of adoption; directs parenting plan. In re Adoption of DPPTimesharing & Parental Rights - LGBTQ Issues
McCord v. Cassady ex rel. Cassady, 138 So. 3d 1135 1st DCAMay 14, 2014Agreed "no contact" order lacked findings to support injunction against violence. No evidence within 6 months of filing motion for inj. 784.046, Florida Statutes.McCordDomestic Violence
Hardy v. State, 140 So. 3d 1016 1st DCAMay 14, 2014Error to admit info from computer database under hearsay exception - 90.803(17). Exception for market reports and commercial publications not applicable to EFORCSE database - not available to public. Canon of statutory interpretation ejusdem generis - interpret general phrase after specifics to include only similar items.HardyEvidence
Garvey v. Garvey,138 So. 3d 1115 4th DCAMay 14, 2014Knowledge of multiple sclerosis (MS) at time of settlement agreement does not preclude later modification. Former husband could not have contemplated what course MS would take. Initial alimony not based on consideration that MS would disable him. Knowledge of possibility alone isn't enough to preclude modification of alimony when the possibility comes to fruition.GarveyAlimony
Horowitz v. Horowitz, 139 So. 3d 929 4th DCAMay 14, 2014Fla Rule App P 9.600(c) - trial court has limited jurisdiction to consider petition to modify. Trial court may enter temporary order pending appeal of initial alimony award.HorowitzFamily Law Procedure
Cano v. Cano,140 So. 3d 651 3d DCAMay 07, 2014Error to order children to attend public school where dad did not seek such relief.CanoParenting Plans
LiFleur v. Webster,138 So. 3d 570 3d DCAMay 07, 2014Reversing order denying motion to terminate temporary custody and awarding temp custody to stepmom. Court improperly delegated custody/parental responsibility to stepmom and grandmother. Bipolar mom undergoing treatment had fundamental constitutional right to resume parental responsibility. No proof, let alone clear and convincing, that natural parent (mom) was unfit or abandoned child. Trial court improperly relied on "best interest of child" standard in denying mom custody.LiFleurParenting Plans
Brody v. Broward Sheriff's Office, 137 So. 3d 610 4th DCAMay 07, 2014Trial court lacks jurisdiction to entertain charging lien where it hasn't been filed. Charging lien must be timely perfected / filed before court loses jurisdiction through settlement, dismissal or final judgment. BrodyAttorney Fees
In re AK, 161 So. 3d 4312d DCAApr 30, 2014Court abused discretion placing children in permanent guardianship with grandparents. Conclusion reunification contrary to children's welfare not based on specific findings; not reasonably objective. DCF did not allege abandonment. Error to find dad failed to complete case plan for which he was given no tasks. Court must set forth plan for returning custody to nonoffending parent, not subject to an indep best int determination.In Re AKDependency
Helmich v. Wells Fargo Bank, 136 So. 3d 7631st DCAApr 23, 2014Inherent authority to reconsider nonfinal orders prior to judgment.HelmichJudiciary
Baricchi v. Barry, 137 So. 3d 1196 2d DCAApr 23, 2014Amended petition after clerk's default 'not entitled to strategic advantage. Improper after default to award relief not prayed for in initial petition.BaricchiFamily Law Procedure
Billie v. Stier, 141 So. 3d 584 3d DCAApr 23, 2014Circuit court, not Miccosukee tribal court, had jurisdiction to decide custody issues. Tribal Court did not substantially comply with the jurisdictional requirements of the UCCJEA. Under the UCCJEA the Miccosukee Tribe is treated as a state in the United States. Tribe's determinations were not made "in substantial conformity" with UCCJEA jurisdictional standards. Non Native American father did not receive notice or due process that allowed meaningful participation.BillieTimesharing
Puglisi v. Puglisi, 135 So. 3d 1146 5th DCAApr 17, 201457.105 award reversed. Court not bound by parents' agreement re child support, custody, visitation. Trial court's responsibility to child indisputably can't be abdicated to any parent or expert. Court's heavy responsibility mandates it is not bound by agreement between parents or by opinions of experts.
"Best interests" of child predominate over agreements between parents; court must independently determine best interests.
Wright v. Wright, 135 So. 3d 1142 5th DCAApr 17, 2014Final judgement must contain findings re specific, non-exhaustive alimony factors. Court should not leave former wife unable to meet basic needs, let alone enjoy standard of living, if she can show need plus former husband's ability to pay. WrightAlimony
Davis v. Lopez-Davis,162 So. 3d 19 4th DCAApr 09, 2014Reverses denial of timesharing to dad. Parent has constitutionally protected inherent right to meaningful relationship with his or her child. Dad's absence from FL and that he and child didn't know each other did not establish his contact would be detrimental to child. When restricting or denying visitation, court must clearly set forth steps parent must take to reestablish timesharing.DavisTimesharing
Taylor v. Lutz, 134 So. 3d 11461st DCAApr 07, 2014Court erred as a matter of law in denying former wife bridge-the-gap alimony. Parties can agree to obligations the trial ct couldn't otherwise order absent an agreement. It's not what alimony is called, but what it is in substance that fixes its legal status. Substance over form controls. Former husband's obligation to pay nonmodifiable bridge-the-gap alimony did not terminate on former wife's remarriage.TaylorAlimony
Albanese v. Albanese,135 So. 3d 532 5th DCAApr 04, 2014Reversing order allowing temporary relocation to NJ. No evidence in children's best interests to relocate to NJ to be with dad. Mom had close bond with sons.AlbaneseTimesharing - Relocation
Fritz v. Fritz, 161 So. 3d 425 2d DCAApr 04, 2014Error in coverture fraction to divide military pension. Wife entitled to one-half share of pension earned during term of marriage, not to postdissolution benefits. Numerator: number of months married while in plan / Denominator: number of months service on date of filing. Multiply by present value of plan. An oral agreement announced to court is a fully enforceable settlement agreement.FritzEquitable Distribution
Glaister v. Glaister,137 So. 3d 513 4th DCAApr 02, 2014Error for magistrate to substitute her own experience getting manicures for sworn testimony supporting imputation of income.GlaisterChild Support
Lafferty v. Lafferty, 134 So. 3d 1142 2d DCAMar 28, 2014Framework for imputing income and how to calculate amount is issue of law.LaffertyAlimony
State v. Roberts, 143 So. 3d 936 2d DCAMar 28, 2014Omission to perform duty imposed by FL law - obtain FL aunt's prior consent - subjected IN niece to jurisdiction. IN niece failed to obtain FL aunt's prior consent - using name and SS# - subjected her to jurisdiction in FL.RobertsFamily Law Procedure
Ehman v. Ehman,156 So. 3d 7 2d DCAMar 26, 2014LLC title owner of property was not a party, court had no power to transfer it. EhmanEquitable Distribution
Flores v. Sanchez, 137 So. 3d 1104 3d DCAMar 26, 2014Court failed to consider if good cause to order paternity testing of alleged bio dad. Trial court must also determine if paternity testing is in child's best interest.FloresPaternity
Kozell v. Kozell, 142 So. 3d 891 4th DCAMar 26, 2014Motion for rehearing untimely 'must be filed within 10 days of filing judgment. No extra five days for mailing - time for motion for rehearing runs from date of filing of judgment.KozellFamily Law Procedure
McNorton v. McNorton,135 So. 3d 482 2d DCAMar 21, 2014Expert accountant's testimony about Standard and Poor's index speculative. No evidence of the composition of retirement investments to show how funds actually invested. Husband's withdrawal of retirement funds to buy a new home and pay bills were applied for purpose unrelated to marriage.McNortonEquitable Distribution
JLB v. SJB,135 So. 3d 468 5th DCAMar 21, 2014Trial court had broad discretion to craft timesharing and visitation plan. Trial court granted unsupervised timesharing conditioned on mom's completing 3 supervised visits with Family Ties program.JLBTimesharing
Hardman v. Koslowski, 135 So. 3d 434 1st DCAMar 12, 2014Court lost subject matter jurisdiction to enforce visitation - adult incapacitated. Court has continuing jurisdiction to order support for adult incapacitated dependent, but no jurisdiction re visitation.HardmanTimesharing
Ingram v. Ingram,133 So. 3d 1205 2d DCAMar 12, 2014Court could determine, clarify dollar amount of pension described by percentage in final judgment.IngramEquitable Distribution
Sargeant v. Al'Saleh, 137 So. 3d 4324th DCAMar 05, 2014Court lacked jurisdiction to compel turn over of stock certificates. Proceedings supplementary - can't compel debtors to turn over stock certs located outside jurisdiction.SargeantFamily Law Procedure
Williams v. Williams, 133 So. 3d 6051st DCAMar 04, 2014Impossible to tell how trial court valued art collection for equitable distribution.WilliamsEquitable Distribution
SB v. Department of Children and Families, 132 So. 3d 12431st DCAMar 03, 2014TPR - DCF failed to prove dad's continued relationship with children would harm them.SBDependency
Walden v. Fiore, 134 S Ct 1115, 571 US 277 Supreme Court of the United StatesFeb 25, 2014Suit-related conduct must create substantial connection with forum state.WaldenJurisdiction
Broadway v. Broadway, 132 So. 3d 953 1st DCAFeb 21, 2014Camper purchased during separation. Fla. Stat. Section 61.075(7) - cutoff date for identifying marital assets is date petition filed, absent separation agrmnt. Court's allocation of asset as marital or nonmarital reviewed de novo.BroadwayEquitable Distribution
Motie v. Motie, 132 So. 3d 1210 5th DCAFeb 21, 2014Court abused discretion by awarding durational not permanent alimony.MotieAlimony
Knight v. Merhige, 133 So. 3d 1140 4th DCAFeb 19, 2014Negligence - no duty to warn other family of adult son's mental issues. Family members owe no heightened duty to protect other adult family members from each other. Depraved nature of killer's mind was unquestioned - killed other family members at Thanksgiving dinner. No allegations parents sufficiently controlled son's actions to place him within functional equivalent of their "legal custody."KnightAdult Children
Wagner v. Wagner, 136 So. 3d 718 2d DCAFeb 14, 2014Debts dad incurs for kid's college expenses before mom files petition are marital.WagnerEquitable Distribution
Hachenberger v. Hachenberger, 135 So. 3d 4135th DCAFeb 07, 2014Judge's Facebook friend request to party disqualifies her.HachenbergerJudiciary
Florida Department of Revenue v. Cody, 131 So. 3d 8231st DCAFeb 07, 2014Obligor gets no deduction unless prior court-ordered support actually paid.CodyChild Support
CG v. JR, 130 So. 3d 7762d DCAJan 31, 2014Undisputed bio dad not the legal dad of child born in intact marriage. Timesharing agreement providing both men with visitation unenforceable - created dual paternity. Court distinguishes and limits TMH v. DMT (two mothers) and Greenfield v. Daniels (two fathers).CGPaternity
Matura v. Griffith, 135 So. 3d 377 5th DCAJan 31, 2014Trial court overlooked 61.13(2)(c)2 presumption of detriment to child. Presumption of detriment arises when parent is convicted of misdemeanor battery - domestic violence. Court errs by ordering monetary bond to ensure dad's return of children from Jamaica -not a signatory to Hague Convention. No evidence mom could gain return of the children from Jamaica, no matter how high the bond.MaturaTimesharing
Vyfvinkel v. Vyfvinkel, 135 So. 3d 384 5th DCAJan 31, 2014Alimony recipient entitled to cumulative CPI adjustment of alimony.Vyfvinkel Alimony
Byrne v. Byrne, 133 So. 3d 1082 4th DCAJan 29, 2014Former husband - no standing to seek appointment of receiver to collect rent. Former husband had no interest in former marital home after entry of Final Judgment of Dissolution.ByrneFamily Law Procedure
Chace v. Loisel, 170 So. 3d 802 5th DCAJan 24, 2014Court grants writ of prohibition. Wife's motion to disqualify trial judge. Wife alleged judge retaliated when she ignored judge's Facebook "friend" request. Friend request placed party between rock & hard place: ex parte communication or risk offending judge? A Facebook friendship does not necessarily signify the existence of a close relationship. Other than public nature of the internet, no difference between a FB "friend" and any other friendship.ChaceJudiciary
Passamondi v. Passamondi, 130 So. 3d 7362d DCAJan 22, 2014Bifurcated divorce - terminally ill husband. Family judge had jurisdiction to hear and determine former wife's claims to undetermined interests in marital property.PassamondiFamily Law Procedure
Herrera-Frias v. Frias, 130 So. 3d 733 2d DCAJan 22, 2014Trial court may award sole responsibility to parent complying with court orders. Other parent (mom) willfully violated order prohibiting removal of children from jurisdiction.Herrera-FriasParenting Plans
TNL v. Department of Children and Families, 132 So. 3d 319 4th DCAJan 22, 2014Amended F.S. 39.522 - reunification - best interests. Amended F.S. 39.522'allows a court to deny reunification based solely on best interest of child. If not in child's best interest to reunify, court may deny reunification of child who is with non-offending parent. No longer requires evidence reunification would endanger child. TNLDependency
Weissman v. Braman, 132 So. 3d 327 4th DCAJan 22, 2014Reverses order requiring law firm to disgorge liquid assets being held. Order directed firm disgorge marital liquid funds to pay wife's temporary attorney fees. Lack of sufficient notice to firm violates due process. If competent substantial evidence shows misappropriation of escrowed funds, court may exercise inherent power to sanction attorneys. Court, with fair notice and on competent, substantial evidence, may order disgorging of funds.WeissmanContempt
Amendments to Florida Rules of Judicial Administration, 132 So. 3d 1114Supreme Court of FloridaJan 16, 2014Florida Rules of Judicial Administration & Family Law. New Rules emphasize managing and coordinating cases through unified family court model. Amended family law rules.RulesFamily Law Procedure
Russo v. Russo, 129 So. 3d 507 2d DCAJan 10, 2014Final judgment can't order contempt to enforce equitable distribution of retirement benefit.RussoContempt
Hahamovitch v. Hahamovitch, 133 So. 3d 1008, 1020, 1062 4th DCAJan 08, 2014Reversing award of attorney fees for travel time of lawyer. Affirm award to wife of some costs not within Statewide Uniform Guidelines for Taxation of Costs in Civil Action. "Suit money" authority under 61.16 contemplates broader range of expenses than ordinarily taxable in other cases. wife failed to show prenuptial agreement invalid for fraud, misrep. Prenuptial agreement was fair when entered into. Affirms denial of wife's claim for enhancement. Prenup specific and broad enough to waive wife's right to enhancement of asset titled in husband's name. Wife could petition to modify alimony because prenuptial agreement was silent on right to modification.HahamovitchPrenuptial & Postnuptial Agreements
Wilcoxon v. Moller, 132 So. 3d 281 4th DCAJan 08, 2014Marital Settlement Agreement - contempt. Reverses contempt finding - order fails to specify nature of contempt court intended to impose. A court cannot base contempt upon noncompliance with something an order does not say. Contempt order failed whether treated as one for criminal or indirect civil contempt.Wilcoxon v. MollerContempt
Tannenbaum v. Shea, 133 So. 3d 1056 4th DCAJan 08, 2014Reverses order issued under Fla. Rule Civ P 1.540(b) vacating agreed order. No legal basis under 1.540(b) to grant relief. Agreed judgment was not "void" but was merely "voidable." Distinguishes between "void" and "voidable" judgments. TannenbaumFamily Law Procedure
Wing v. Wing, 129 So. 3d 1116 1st DCADec 20, 2013Reversing order permitting relocation to Italy. No relocation because mother failed to comply strictly with relocation statute Florida Statutes 61.13001.WingTimesharing - Relocation
Flaherty v. Flaherty, 128 So. 3d 920 2d DCADec 20, 2013Ratification and laches do not validate void prenuptial agreement. Spouse was not required to seek setting aside prenup during intact marriage.FlahertyPrenuptial & Postnuptial Agreements
Gregory v. Gregory, 128 So. 3d 926 5th DCADec 20, 2013Former wife found to be in supportive relationship. Ex wife in supportive relationship bore burden of proof of continued need for alimony. Former wife's alimony terminated - evidence of her inheritance, support of roommate, gifts she made, and enhanced lifestyle.GregoryAlimony
Hodge v. Hodge, 120 So. 3d 441 5th DCADec 20, 2013Trial court failed to deduct ordinary, reasonable expenses from rental income. Trial court failed to attribute investment income from property distributed to former wife. 5th DCA follows 5 step analysis in Kaaa v. Kaaa, 58 So.3d 867 (Fla. 2010) for calculating passive appreciation - nonmarital property.HodgeEquitable Distribution
Garrett v. Pratt, 128 So. 3d 928 5th DCADec 20, 2013Inmate denied opportunity to testify by phone.GarrettFamily Law Procedure
Cole v. Cole, 159 So. 3d 1243d DCADec 18, 2013Improper to grant mother "sole custody" w/o giving dad opp'ty to present evidence.ColeTimesharing
Grant v. Grant1st DCADec 17, 2013Proposals for settlement not appropriate in family law. Fla Fam Rule 12.442.GrantFamily Law Procedure
Naylor v. Naylor, 127 So. 3d 1288 1st DCADec 17, 2013$20,000 valuation of tools unsupported opinion. NaylorEquitable Distribution
Stone v. Stone, 128 So. 3d 239 4th DCADec 11, 2013Reverses domestic violence injunction. Insufficient evidence to establish fear of imminent danger. Even though expired, domestic violence injunction vacated "due to the collateral consequences such an injunction might cause."StoneDomestic Violence
Pierce v. Pierce, 128 So. 3d 204 1st DCADec 10, 2013Following Casto to uphold mediated agreement between sisters in bitter will contest. Probate proceeding -Emotion not sufficient grounds to set aside otherwise duly executed property settlement agreement.PiercePrenuptial & Postnuptial Agreements
Madson v. Madson, 128 So. 3d 207 1st DCADec 10, 2013Wife's Coca Cola stock given by her son not commingled = her nonmarital asset.MadsonEquitable Distribution
Riethmiller v. Riethmiller, 133 So. 3d 926 Supreme Court of FloridaDec 05, 2013Court sanctions ex wife for numerous frivolous filings.RiethmillerContempt
Hoffman v. Hoffman, 127 So. 3d 8632d DCADec 04, 2013Temporary support and fees ate up 80% of husband's monthly net income - order reversed.HoffmanAlimony
Arias v. Arias, 123 So. 3d 533 2d DCANov 27, 2013Former husband who failed to try to get a job properly held in contempt. Reversed incarceration where there was no evidence former husband had present ability to pay purge amount.AriasContempt
Driggers v. Driggers, 127 So. 3d 762 2d DCANov 27, 2013Court abused discretion. Failed to modify alimony; Contempt order reversed. 40% drop in business was an uncontemplated substantial change in circumstances that was not voluntary or temporary. No money available to former husband from business. He lacked substantial assets to liquidate. His job expectations were grim.DriggersAlimony
Hirsch v. Hirsch, 136 So. 3d 622 2d DCAOct 25, 2013Subject matter jurisdiction Servicemembers' Group Life Insurance Act. Trial court has no subject matter jurisdiction to order beneficiary designation protected by SGLIA to be changed.HirschBeneficiary Designations
Defanti v. Russell, 126 So. 3d 377 4th DCAOct 23, 2013No entitlement under 61.075(5) to interim partial distribution. Former wife did not show extraordinary circumstances required an interim partial distribution.DefantiEquitable Distribution
Wade v. Wade, 123 So. 3d 697 3d DCAOct 23, 2013Writ prohibition -Judge failed to give mother opportunity to present evidence. Order that mother submit to psychological evaluation caused her to fear she would not get a fair hearing.WadeFamily Law Procedure
C.B. v. M.A., 124 So. 3d 366 2d DCAOct 18, 2013Trial court failed to determine time-sharing schedule for holidays, summer.CB v. MATimesharing
Hedstrom v. Hedstrom, 123 So. 3d 150 5th DCAOct 18, 2013Temporary modification or reduction of alimony. Reducing alimony is appropriate where payor has suffered a reduction in income. Through no fault of his or her own and is acting in good faith to return income to its previous level. A payor's complete inability to pay requires cessation of arrearage accrual, not mere abatement of payment. Court should applying reduced amount of alimony retroactively to date income was first reduced.HedstromAlimony
Watson v. Watson, 124 So. 3d 340 1st DCAOct 16, 2013Final Judgement failed to address all mandatory factors listed in 61.075(1). "Equity and justice" is not the only factor, nor does it carry more weight than the factors in 61.075(1).WatsonEquitable Distribution
Schoenlank v. Schoenlank3rd DCAOct 16, 2013Upholds trial court's denial attorney fees to either party under MSA. Both parties prevailed on significant issues; neither party was the prevailing party under marital settlement agreement. Claims litigated may be "inextricably intertwined" involving a "common core of facts."SchoenlankAttorney Fees
Brennan v. Brennan, 122 So. 3d 923 4th DCAOct 02, 2013Partition - must divide property if no party contests requested partition. Remanded to revisit entire scheme of equitable division devised by court. Court may require payment for private school only if factors are established. Private school: (1) ability to pay for it, (2) expense w/in established st of liv, (3) attending is in child's best interests. Amount of life insurance, if ordered must not exceed support oblig.BrennanEquitable Distribution
Card v. Card, Case No. 2D11-6307 2d DCASep 20, 2013Attorney perfected charging lien by providing timely notice.CardAttorney Fees
Sirdevan v. Strand, Case No. 1D13-16491 st DCASep 19, 2013Man lacked standing to bring paternity case. Child was born to intact marriage.SirdevanPaternity
Emmenegger v. Emmenegger, 135 So. 3d 1103 2nd DCASep 18, 2013Parties intended visitation schedule would not affect child support. No reduction. Father did not explain how prior waiver of reduction now entitled him to reduction now.EmmeneggerChild Support
Austin v. Austin, Case No. 1D13-1766 1st DCASep 13, 2013Trial court can't order transfer of corporate assets without joining corporation. Court may value and distribute corporate stock that is a marital asset. Court may enjoin disposal of corporate assets over which spouse has control without joining corporation. Court abused discretion by ordering liquidation of assets for which Wife did not plead. Interim partial equitable distribution under 61.075(5), Fla. Stat. requires a sworn motion. Motion for partial distribution must identify & value marital, nonmarital assets and liabilities.AustinEquitable Distribution
Graham v. Graham, 123 So. 3d 625 1st DCASep 03, 2013Court erred in calculating wife's share of 401(k) and Army pension. "One-half" (1/2) of ownership of account meant something other than entitlement to a fixed sum. Former wife entitled to 1/2 the value, including gains and losses, of a fluctuating asset. Former wife held a property interest in her 1/2 of 401(k) account, including gains or losses attributable to assets.Graham Equitable Distribution
Kuchera v. Kuchera, 123 So. 3d 631 4th DCASep 03, 2013Former wife held a property interest in her 1/2 of 401(k) account, including gains or losses attributable to assets. Court must decide if nonmodifiable lump sum alimony payments under MSA would be deductible. Nonmodifiable lump sum alimony payments generally are not deductible.KucheraEquitable Distribution
McKee v. Mick, Case No. 1D12-4954 1st DCAAug 22, 2013Burial plot an interspousal gift, thus marital property; '99 Cadillac nonmarital.McKee Equitable Distribution
Lopez v. Lopez, 135 So. 3d 326 5th DCAAug 16, 2013Trial court improperly allocated full value of depleted asset to husband. Reverses equit distribution. Former husband liquidated 401(k) to pay attorney fees for both parties, taxes, and home repairs. Only funds depleted on girlfriend should have been allocated to former husband.LopezEquitable Distribution
Touchet v. Jones, 135 So. 3d 5235th DCAAug 16, 2013Domestic violence - same sex couple lived together as family. Reverses provision of domestic violence injunction requiring victim and son to obtain psychological evaluations. Court has no authority to order a victim of dom violence to get a psych eval and counseling.Touchet Domestic Violence - LGBTQ Issues
Butler v. Hall, Case No. 1D13-250 1st DCAAug 15, 2013Trial court must conform written judgment to oral pronouncement on timesharing.Butler Timesharing
KH v. Children's Home Society, Case No. 4D13-15094th DCAAug 14, 2013Bio father was failed to comply with statute 63.062(2) to preserve rights as father. Putative father served with Notice of Adoption failed to file in 30 days necessary paperwork. Father lost rights by not complying with requirements of 63.062(2).KHAdoption
Parris v. Cummins Power South, Case No. 1D13-01231st DCAAug 13, 2013Concurring opinion. J. Makar on use of archaic Latin phrases. Not all Latin that lawyers use is "chanting unknown terms from a dead language," as plaintiff argued.Parris Marital Settlement Agreements
JDC v. MEH, Case No. 2D12-7192d DCAAug 07, 2013Social investigation statute entitles parents to due process. Parents may review social investigation reports, to introduce evidence that might rebut conclusions in them. Parents have an opportunity to challenge findings and recommendations in social investigation reports. Court erred by punishing dad for exercising right to challenge social investigation report - 61.20 Fla Statutes.JDCFamily Law Procedure
Shiba v. Gabay, 120 So. 3d 80 4th DCAAug 07, 2013Paternity; temporary time'sharing. Affirms order to return child to FL from Illinois. Case not strictly relocation case, but factors 61.13001(7) should be considered re best interests Section 61.13.Shiba Timesharing - Relocation
Burno v. Burno, 135 So. 3d 323 5th DCAAug 02, 2013Remanding for findings regarding mom's violation of contact schedule, unilateral decisions. Trial court's findings supported conclusion mom's improper parenting warranted modification.Burno Parenting Plans
Caryi v. Caryi, 119 So. 3d 508 5th DCAAug 02, 2013No waiver of attorney fees in settlement agreement. MSA must contain specific language waiving attorney's fees in future enforcement or modification proceedings.CaryiMarital Settlement Agreements
MDC v. BNMJ, 117 So. 3d 489 1st DCAJul 24, 2013Trial court erred by dismissing petition for TPR and for adoption of adult. Trial court incorrectly found strict language of 63.042(2)(c) Florida Statutes did not authorize adoption. No exception to the statutory mandate would be required to allow adoption to move forward. At least, the adoption should have proceeded to an evidentiary hearing. Petitioner could try to show good cause why his present spouse did not join the adoption petition. Petitioner could show that adoption was in the adult child's best interest. If so, adoption may proceed. De novo review - bio dad, who remarried, could adopt despite prior termination of his parental rights. Dad's current spouse did not join petition for adoption, because bio mom would continue to fulfill role of legal mother.MDC Adoption
Nassirou v. Nassirou, 117 So. 3d 451 1st DCAJul 15, 2013Reverses award of 401(k) to former wife as punishment for domestic violence.Nassirou Contempt
Schmidt v. Schmidt, Case No. 4D11-3379 4th DCAJul 10, 2013Reverses business valuation. Wife's expert opinion incorrectly allocated "personal goodwill" and "enterprise goodwill." Valuation assumed and required husband to sign a non-compete agreement and transitional consulting agreement.Schmidt Equitable Distribution
Amendments to Family Law Rules, 121 So. 3d 505Supreme Court of FloridaJul 03, 2013New Income Withholding form.RulesFamily Law Procedure
Busciglio v. Busciglio, Case No. 2D11-64812d DCAJul 03, 2013Charter school is not "private school". Final judgement must specify circumstances justifying life insurance obligation to secure support.Busciglio Child Support
Wrieden v. Wrieden, 117 So. 3d 8424th DCAJul 03, 2013Error to order former husband to pay rent at address different from the one the MSA specified.Wrieden Marital Settlement Agreements
Hollingsworth v. Perry, 133 S. Ct. 2652, 570 US 693, 186 L. Ed. 2d 768 - Defense of Marriage Act US Supreme CourtJun 26, 2013US Supreme Court Strikes down Defense of Marriage Act (DOMA).DOMAMarriage
Sacket v. Sacket, Case No. 4D12-1872 4th DCAJun 19, 2013Attorney fee provision in settlement agreement if party "defaults" is not a prevailing party provision. Attorney fee provision in MSA - "defaulting party".SacketMarital Settlement Agreements
Lilly v. Lilly, 113 So. 3d 155 5th DCAMay 24, 2013Trial court improperly converted rehabilitative to permanent alimony. Wife failed to present evidence she made reasonable, diligent efforts to comply with rehabilitative plan.LillyAlimony
Parra de Rey v. Rey, 114 So. 3d 371 3d DCAMay 22, 2013Wife insisted on signing settlement agreement without full financial disclosure, despite advice not to do so. Failed to plead fraud with specificity. No duress shown.ReyMarital Settlement Agreements
Florida Legislature Passes CS/CS/SB 718:Florida SenateApr 18, 2013Family Law Bill - alimony reform 50-50 time-sharing.2013 Alimony BillAlimony Reform
Rudel v. Rudel, 111 So. 3d 285 4th DCAApr 17, 2013Dissolution; jurisdiction; domestic violence.RudelDomestic Violence
Fernandez v. Wright, 111 So. 3d 2292d DCAApr 10, 2013Written order different from oral pronouncement. Domestic violence statute section 741.30 does not provide for award of attorney fees.FernandezDomestic Violence
Kunsman v. Wall, 125 So. 3d 868 4th DCAApr 10, 2013Failed to plead entitlement attorney fees under marital settlement agreement.KunsmanAttorney Fees
Rivero v. Rivero, 111 So. 3d 233 4th DCAApr 10, 2013Failure to verify timely pleadings not a jurisdictional defect.RiveroFamily Law Procedure
DM v. Elizabeth R Berkowitz , P.A., 112 So. 3d 5754th DCAApr 10, 2013Biological dad entitled to access to adoption records. Confidentiality provisions of 63.089(8), 63.162(2) and 63.162(4) do not require parent establish good cause.DMAdoption
Conway v. Conway, 111 So. 3d 9251st DCAApr 03, 2013Error to deny prejudgment interest on unpaid alimony. Parol evidence to construe latent ambiguity in MSA re: ex-wife's share of "bonuses" "received" by ex-husband.ConwayAlimony
Centeno v. Centeno, 109 So. 3d 1259 2d DCAApr 03, 2013Reversing denial of petition to modify alimony. Marital settlement agreement did not clearly and plainly limit modification of alimony to one set of facts.CentenoAlimony
Bak v. Bak, 110 So. 3d 523 4th DCAApr 03, 2013Appeal of nonfinal order untimely. Motion for rehearing did not suspend rendition of non-final order. Rehearing not authorized for non-final orders.BakFamily Law Procedure
Amendments to Florida Rule of Judicial Administration 2.420, 124 So. 3d 819 Supreme Court of FloridaMar 28, 2013Privacy - public access to confid court records. Extensive changes.RJA 2.420Family Law Procedure
Capote v. Capote2d DCAMar 27, 2013Nonmarital portion business lost separate character. Consistent use of operating account to pay personal expenses - business loses nonmarital character.CapoteEquitable Distribution
Goodman v. Goodman, 126 So. 3d 2103d DCAMar 27, 2013Reversing judgment allowing man to adopt his 42 year old girlfriend. DUI manslaughter convict could not adopt girlfriend to make her his child under a trust. Other children's interests in trust were directly, immediately and financially threatened by allowing adoption. Failure to give other children notice of adoption under Fla. Stat. 63.182(2)(a) rendered adoption decree void.GoodmanAdoption
Oliver v. Oliver, 112 So. 3d 538 5th DCAMar 15, 2013Responsibility for non-elective reasonable necessary medical expenses. Not responsible for elective medical expenses for children unless the parties expressly agree or the court so orders.OliverChild Support
Dybalski v. Dybalski5th DCAMar 08, 2013Attorney fee award reversed. No fees for vexatious litigation. Former husband's conduct (withdrawing motions he filed) was not sufficiently vexatious.DybalskiAttorney Fees
Fazzaro v. Fazzaro, 110 So. 3d 492d DCAMar 08, 2013Reversing award ultimate responsibility for all decisions affecting child.FazzaroParenting Plans
Schecter v. Schecter, 109 So. 3d 833 3d DCAMar 06, 2013Error to terminate temporary attorney fees. 18 year romantic relationship. Prenuptial agreement. Upholds court's decision to terminate temporary alimony. Wile an agreement concerning payment of temporary attorney's fees need not be deemed controlling, it also should not be ignored.SchecterAttorney Fees
George v. George, 113 So. 3d 972 2d DCAMar 01, 2013No jurisdiction modify pension. Trial court had no jurisdiction to modify property rights (Chrysler pension) after they've been adjudicated in final judgment.GeorgeEquitable Distribution
Hardman v. Koslowski, 107 So. 3d 12461st DCAFeb 27, 2013Reversing contempt order. No specific provision violated. No purge - improper criminal contempt. No specific provision that wife provide "normal and usual routine contact" to support contempt.HardmanContempt
Eckert v. Eckert, 107 So. 3d 1235 4th DCAFeb 27, 2013Trial court abused discretion by allowing relocation from Broward County to Vero Beach. Court must apply relocation factors in Fla. Stat. 61.13001. Mom's desire to move isn't enough.EckertTimesharing - Relocation
Quintero v. Rodriguez, 113 So. 3d 956 5th DCAFeb 15, 2013Error to deny award of temporary attorney fees. Even with imputed income, wife's negligible monthly surplus not enough to pay attorney's fees.QuinteroAttorney Fees
Chafin v. Chafin, 133 S. Ct. 1017 Supreme Court of the United StatesFeb 13, 2013Hague -return of child to Scotland habitual residence does not moot appeal of order.ChafinHague Convention
Hickman v. Milsap, 106 So. 3d 513 5th DCAFeb 08, 2013Man not child's father disestablished paternity must pay back child support.HickmanPaternity
Neuman v. Harper, 106 So. 3d 974 5th DCAFeb 08, 2013Mother's deception thwarted relationship between dad, child - majority of time given to dad in Mississippi.NeumanTimesharing
Davis v. Davis, 108 So. 3d 6605th DCAFeb 08, 2013Former husband failed to prove entitlement enhancement of nonmarital asset. Error to admit DCF investigative summaries containing hearsay. Husband failed to call authors of DCF reports to testify or establish predicate for admission, but no harmless error.DavisEquitable Distribution
Doganiero v. Doganiero, 106 So. 3d 752d DCAFeb 06, 2013$100/month alimony woefully insufficient and beyond the pale where husband makes $52,000/year. DoganieroAlimony
Toussaint v. Toussaint, 107 So. 3d 474 1st DCAJan 24, 2013Plain language prenuptial agreement did not entitle husband to appreciation.ToussaintPrenuptial & Postnuptial Agreements
Zvida v. Zvida, 103 So. 3d 1052 4th DCAJan 09, 2013Error to include depleted asset in equitable distribution.ZvidaEquitable Distribution
Giorlando v. Giorlando, 103 So. 3d 2474th DCADec 19, 2012Must consider imputed income from MSA. Because former wife sought to modify support, she bore the burden of establishing imputed income should no longer apply.GiorlandoMarital Settlement Agreements
US Bank Nat. Ass'n v. Quadomain Condo Ass'n, 103 So. 3d 977 4th DCADec 19, 2012Lis pendens - intervention. Must timely intervene in the suit creating the lis pendens, to enforce unrecorded property interest.US BankFamily Law Procedure
Amendments to Florida Rules, 104 So. 3d 1043Supreme Court of FloridaDec 06, 2012Mediation rule change - Rule 12.740 amended.RulesFamily Law Procedure
Amendments to Florida Family Law Rules, 104 So. 3d 1043 Supreme Court of FloridaDec 06, 2012Florida Supreme Court deletes 10-days for objections when attorney not at mediation and agreement is reached from the MSA must be taken into account in determining whether to award temporary fees.RulesFamily Law Procedure
Strawcutter v. Strawcutter, 101 So. 3d 417 5th DCANov 30, 2012Disqualification of counsel. Wife accessed husband's computer. No evidence wife's attorney became privy to privileged communication or obtained an unfair advantage.StrawcutterFamily Law Procedure
Blackburn v. Blackburn, 103 So. 3d 941 2nd DCANov 30, 2012Modification of 50-50 time-sharing. Cannot dispense with the substantial change in circumstances standard for modifying time-sharing.BlackburnTimesharing
Gottlieb v. Gottlieb, 127 So. 3d 575 4th DCANov 28, 2012Florida Appellate Rule 9.130(f). Court lacked jurisdiction to render final judgment while appeal from nonfinal order was pending in same case.GottliebFamily Law Procedure
Florida Department of Revenue v. Wilson, 100 So. 3d 1283 1st DCANov 26, 2012No deviation from guidelines for shared parenting without approved parenting plan.WilsonChild Support
Miller v. Miller, 107 So. 3d 430 4th DCANov 21, 2012No attorney fees to prevailing party. Prevailing party attorney fees only applied to action to "enforce" agreement, not for "modification" action. Claim modification petition was "inextricably intertwined" with contempt proceedings was without merit. Issues are intertwined when "work for one claim cannot be distinguished from work on other claims" - Franzen.MillerAttorney Fees
Scott v. Scott, 109 So. 3d 804 5th DCANov 16, 2012Error not to lower alimony after two heart attacks .ScottAlimony
Hernandez v. Hernandez, 109 So. 3d 806 5th DCANov 16, 2012Error to base alimony and child support on old financial affidavit.HernandezAlimony
Margaretten v. Miller, 101 So. 3d 395 1st DCANov 16, 2012Permanent alimony. Findings required. Trial court must determine if permanent alimony is the most fair and reasonable type and make findings.MargarettenAlimony
Amendments to Family Law Rules of Procedure, 104 So. 3d 314Supreme Court of FloridaNov 15, 2012Form amendments. Disclosures from non-lawyers who help fill out forms.RulesFamily Law Procedure
Weiss v. Weiss, 100 So. 3d 12202d DCANov 14, 2012Full Faith and Credit. Contempt to enforce property settlement. Court must enforce contempt feature of IL money judgment as to property settlement, unlike FL law.WeissContempt
Perez v. Perez, 100 So. 3d 769 2d DCANov 09, 2012$200,000 attorney fee award lacked necessary findings. Must set forth specific findings to justify the amount awarded and justifying payment plan selected. Court may not simply choose arbitrary figure to do some esoteric type of equity. Specific findings required for award of fees as a sanction, including Rosen reduction or enhancement factors. PerezAttorney Fees
DOR v. Cessford, 100 So. 3d 1199 2d DCANov 09, 2012Affirms order that DOR return tax refund intercepted. Taxpayer was not in arrears or delinquent in paying child support to warrant interception of tax refund. Retroactive support does mean delinquency or arrears. State court has authority to determine delinquency. Court order that DOR pay attorney fees was justified under section 57.105(1), Florida Statutes.DOR v. CessfordChild Support
Edgar v. Firuta, 100 So. 3d 255 3d DCANov 07, 2012Mother fled to NC in violation of FL court order. Court found mom violated section 787.03, Florida Statutes. Interference with lawful custody of a minor child. NC court never addressed child custody in initial dissolution of marriage proceedings. NC Court was never advised of Monroe County, FL order prohibiting relocation - no jurisdiction under UCCJEA. Trial court properly struck mom's pleadings, but failed to assess the 20 "best interest of the child" factors. Upholds sanctions for mom's precipitous actions, but remands for consideration of best interest of children. EdgarContempt
Bosh v. Mathis, 99 So. 3d 631 5th DCAOct 26, 2012Improper "status conference" rulings violated due process. Reversing rulings not noticed, not sought and not based on presentation of evidence. Violated due process.BoshFamily Law Procedure
Symonette v. State, 100 So. 3d 180 4th DCAOct 24, 2012Photos of text messages authenticated.SymonetteEvidence
Garvin v. Tidwell, 126 So. 3d 1224 4th DCAOct 24, 2012Rescission mediated settlement agreement. Party violated discovery obligations. Did not disclose relevant material responsive to discovery requests.GarvinMarital Settlement Agreements
Johns v. Johns, 101 So. 3d 377 1st DCAOct 10, 2012Mom denied chance to present evidence before entry domestic violence injunctionJohnsDomestic Violence
Wright v. Milner1st DCAOct 08, 2012Reversed order denying petition to relocate to Virginia.WrightTimesharing
Fonderson v. Lairap, 98 So. 3d 7152d DCAOct 05, 2012"Matching" fee award reversed. No evidence of work actually performed by W's attorneys to justify ordering H to pay them what he paid his attorneys. FondersonAttorney Fees
New Family Law Rules, 101 So. 3d 360Supreme Court of FloridaOct 04, 2012Inadvertent disclosure of privileged materials.RulesFamily Law Procedure
New Family Law Rules, 101 So. 3d 360Supreme Court of FloridaOct 04, 2012May serve fewer than standard interrogatories.RulesFamily Law Procedure
New Family Law Rules, 101 So. 3d 360Supreme Court of FloridaOct 04, 2012Proposals for settlement do not apply in family law matters.RulesFamily Law Procedure
Amos v. Amos, 99 So. 3d 979 1st DCAOct 03, 2012Court may consider remote dissipation of marital assets, following Beers v. Beers.AmosEquitable Distribution
Hitchcock v. Hitchcock, 126 So. 3d 1184 4th DCAOct 03, 2012Attorney fees - equal ability to pay. Trial court erred in reimbursing wife for only half of husband's fees she previously paid, after equal distribution.HitchcockAttorney Fees
Hoff v. Hoff, 100 So. 3d 1164 4th DCAOct 03, 2012Temporary attorney fees - ability to pay. Court may consider factors other than parties' relative financial resources, such as access to assets. Detailed findings not required for temporary timesharing determinations. Must have competent substantial evidence.HoffAttorney Fees
Domville v. State, 103 So. 3d 184 4th DCASep 05, 2012Disqualification - prosecutor, judge Facebook friends.DomvilleJudiciary
Holtz v. Holtz, 95 So. 3d 457 4th DCAAug 22, 2012Reverses contempt order nonpayment equitable distribution payment.HoltzContempt
Wiesenfeld v. Wiesenfeld, 95 So. 3d 959 1st DCAAug 15, 2012Revoking past alimony error without finding former wife's capable self-support. Receipt of inheritance a substantial change in circumstances allowing alimony recipient to become self-supportingWiesenfeldAlimony
McCord v. McCord, 94 So. 3d 719 2d DCAAug 15, 2012MSA did not establish personal service obligation. Former husband not required under MSA to pilot around former wife.McCordMarital Settlement Agreements
Maher v. Maher, 94 So. 3d 719 4th DCAAug 15, 2012Modification of child support - entrepreneur. Income of self-employed "entrepreneur" not involuntarily or permanently reduced to justify downward modification.LinkChild Support
Nousari v. Nousari, 94 So. 3d 704 4th DCAAug 15, 2012Durational alimony upheld - moderate term. 2011 changes to alimony statute require findings to award permanent alimony that no other form is fair and reasonable. 2011 changes for award of permanent alimony moderate term marriage, prove factors by clear, convincing evidence.NousariAlimony
Cook v. Cook, 94 So. 3d 683 4th DCAAug 15, 2012Waiver right to seek modification alimony in MSA. Waiver right to seek modification alimony in marital settlement agreement must be clearly and unambiguously expressed.CookMarital Settlement Agreements
Cole v. Cole, 95 So. 3d 369 3d DCAAug 01, 2012Court approved marital settlement agreement is a contract; court will not rewrite terms. Enforcement of "creeping" financial obligations. Resolve under terms of MSA or by seeking modification of obligations.ColeMarital Settlement Agreements
Connell v. Connell, 93 So. 3d 1140 2d DCAAug 01, 2012Prenuptial agreement - men's jewelry separate property. Premarital agreement provision regarding joint funds did not make husband's Rolex joint property although acquired with joint funds.ConnellPrenuptial & Postnuptial Agreements
Jackson v. Jackson, 98 So. 3d 112 2d DCAJul 18, 2012Temporary attorney fees and temporary support. On certiorari, court quashes order denying contempt for husband's failure to pay temporary attorney fees and support. Husband, sole shareholder, controlled, had access to corporation's accounts and IRA as sources to pay temp support.JacksonAttorney Fees
Rules of Judicial Administration, 95 So. 3d 96Supreme Court of FloridaJul 16, 2012New Rule of Judicial Administration 2.514 (Computing and Extending Time). Effective 10/1/2012.RJAFamily Law Procedure
Fazzini v. Davis, 98 So. 3d 98 2d DCAJul 13, 2012Domestication of foreign visitation consent judgment. Surviving dad's privacy rights prevail over maternal grandmother's visitation rights under Virginia consent decree. No "involuntariness" element for modification of time sharing. Change may be voluntary, yet meet Wade v. Hirschman test. Parent's fundamental privacy right to raise child trumps grandp's claims, even if he originally agreed, absent demonstrable harm.FazziniTimesharing
Amendments to Florida Family Law Rules of ProcedureSupreme Court of FloridaJul 12, 2012Family Law Rules amended for injunctions for protection against stalkingRulesFamily Law Procedure
Blossman v. Blossman, 92 So. 3d 878 4th DCAJul 11, 2012Error for court to "split the difference" between two stock valuations.BlossmanEquitable Distribution
Le v. Nguyen, 98 So. 3d 600 5th DCAJul 06, 2012Parenting plan may be modified prior to incorporation in final judgment if not in the best interests of the child - substantial change test does not apply. Parenting plan may be modified prior to final judgement if not in best interests of child. Substantial change in circumstances does not apply to modification of parenting plan prior to incorporation in final judgmnt.Le v. NguyenParenting Plans
Overton v. Overton, 92 So. 3d 253 1st DCAJun 14, 2012Modification alimony - Trial court has discretion to find need for alimony persists despite recipient's supportive relationship.OvertonAlimony
Amendments to Approved Family Law Forms, 96 So. 3d 217 Supreme Court of FloridaMay 24, 2012Amended for changes to alimony and child support.FamilyFormsFamily Law Procedure
Gilbert v. Cole, 107 So. 3d 4261st DCAMay 18, 2012Support award in divorce decree allocated each child half until emancipation.GilbertChild Support
In re KC, 87 So. 3d 827 2nd DCAMay 16, 2012Reversed finding dependency. DCF failed to prove mom would fail to protect kids from dad's drinking.
Bellamy v. Langfitt, 86 So. 3d 11703d DCAApr 25, 2012Court erred by judicially modifying irrevocable trust contrary to settlor's intent.BellamyTrusts & Estates
King v. King, 82 So. 3d 1124 2d DCAMar 07, 2012Supportive relationship pre-divorce - can't cut alimony.KingAlimony
Swergold v. Swergold, 82 So. 3d 1148 4th DCAMar 07, 2012Credits under 61.077, Florida Statutes. Error to fail to address entitlement to credits for expenses of marital home during former wife's exclusive possession.SwergoldEquitable Distribution
Simon v. Simon, 83 So. 3d 927 4th DCAMar 07, 2012Prenuptial agreements and temporary fees. Court errored by limiting temporary support, attorney fees upon prenuptial agreement. Must apply need and ability test 61.16.SimonPrenuptial & Postnuptial Agreements
Gulledge v. Gulledge, 82 So. 3d 11132d DCAFeb 29, 2012Failure to set date for sale or refinancing residence.GulledgeEquitable Distribution
Palewsky v. Florida DOR, 81 So. 3d 584 3d DCAFeb 29, 2012Mandatory financial affidavit cannot be waived - no harmless error.PalewskyChild Support
Hallac v. Hallac, 88 So. 3d 253 4th DCAFeb 29, 2012Court may consider results obtained in case. Court may weigh failure to accept offer to settle a divorce case in denying attorney fees. Error to award attorney fees to a spouse who has no need for fees against a spouse who has lesser ability to pay. Vexatious litigation practices do not abrogate a determination of ability to pay to justify an award of attorney fees. There must be vexatious conduct or bad faith litigation to award attorney fees under the court's inherent authority.HallacAttorney Fees
Slover v. Meyer, 80 So. 3d 453 2d DCAFeb 24, 2012Substantial change in circumstances test did not apply. Modification of custody. Dispute between natural parent and 3d party. Deny custody to natural parent only when detrimental to child.SloverTimesharing
Preudhomme v. Bailey, 82 So. 3d 138 4th DCAFeb 22, 2012Reversing supervised visitation. Trial court errored restricted angry mom to 4 hrs/week supervised contact and prohibited modification until completion 1½ yrs therapy.PreudhommeTimesharing
MacLeod v. MacLeod, 82 So. 3d 147 4th DCAFeb 22, 2012Plain meaning of postnuptial agreement. Clear postnuptial agreement. Character of nonmarital cottage remained separate property. Never was converted to tangible asset.MacLeodPrenuptial & Postnuptial Agreements
Drdek v. Drdek, 79 So. 3d 216 4th DCAFeb 15, 2012Magistrate invoked "manifest injustice". Magistrate has no authority to overrule prior order of a circuit judge based on "manifest injustice."DrdekMarital Settlement Agreements
Sauriol v. Sauriol, 79 So. 3d 204 2nd DCAFeb 10, 2012Confusing civil contempt order. Order a "repackaged effort" at unauthorized indirect criminal contempt order to punish husband for email in violation of no contact order.SauriolDomestic Violence
Stoothoff v. Hobdy, 79 So. 3d 198 5th DCAFeb 10, 2012No binding settlement - parenting plan agreement. All aspects of parenting plan had not been reduced to writing, as contemplated by Florida Statutes Section 61.046(14).StoothoffParenting Plan
McClune v. McClune, 79 So. 3d 194 5th DCAFeb 10, 2012Latent ambiguity in MSA regarding division of IRA - evidentiary hearing required.McCluneMarital Settlement Agreements
DiNardo v. DiNardo, 82 So. 3d 1102 2nd DCAFeb 08, 2012Failure to consider consistent history of bonuses.DiNardoAttorney Fees
Robertson v. Robertson, 78 So. 3d 76 5th DCAJan 20, 2012Primary asset of marriage - enhanced value of premarital website. Error to deny motion to continue to allow expert to testify to enhanced value of website - domain name registered pre-marriage.RobertsonEquitable Distribution
Byrne v. Byrne, 128 So. 3d 23d DCAJan 18, 2012Negative equity in real property - assigning all to one party error. Improper unequal distribution by assuming surrender of property to bank would erase marital deficiency debt. Error not to adjust for husband's spending after separation of wife's funds from joint brokerage account.ByrneEquitable Distribution
Middleton v. Middleton, 79 So. 3d 8365th DCAJan 06, 2012Standard for imputing income. Court should have considered wife's work history, occupational qualifications, prevailing earnings in community for class of available jobs.MiddletonAlimony
Saewitz v. Saewitz, 79 So. 3d 8313d DCAJan 04, 2012Tortious interference with expected inheritance. No proof stepmother's acts caused them damages with reasonable degree of certainty.SaewitzTrusts & Estates
Koslowski v. Koslowski, 78 So. 3d 642 1st DCADec 30, 20111st DCA Award of respite nursing care adult dependent child justified. Respite care from Registered Nurse (RN) ordered - adult dependent child with acute epileptic condition (Lennox-Gastaut Syndrome). Sec 61.30(11) Fla Stat allows upward adjustment in child support for extraordinary medical, psychological, educational or dental expenses. Adult dependent child's condition and constant need for medical care justified award of respite care.KoslowskiChild Support
Galligar v. Galligar, 77 So. 3d 8081st DCADec 30, 2011Reversing order reducing alimony still beyond former husband's ability to pay.GalligarAlimony
Zambuto v. Zambuto, 76 So. 3d 1044 2d DCADec 16, 2011Court cannot charge husband's share of equitable distribution w gambling losses during intact marriage.ZambutoEquitable Distribution
Buhler v. Buhler, 83 So. 3d 7905th DCADec 02, 2011Fla. Stat. Section 61.30(11)(b) mandatory. Failure to spend substantial time with child. Mandatory forfeiture of right to reduction in child support. Modification retroactive to the date noncustodial parent first failed to regularly exercise visitation, not later date of filing.BuhlerChild Support
PG v. EW, 75 So. 3d 777 2d DCANov 30, 2011Single spank constituted reasonable and non-excessive parental corporal discipline and, as a matter of law, was not domestic violence. DNA test results former husband learned of since initial paternity determination proved he was not bio dad. Trial ct should have granted petition to disestablish paternity based on newly discovered evidence. Certifies conflict with Oct 6 2011 1st DCA case Hooks v. Quaintance. Certifies conflict with First District's opinion in Hooks v. Quaintance, 36 Fla. L. Weekly D2214 (Fla. 1st DCA Oct. 6, 2011).PGPaternity
Kerzner v. Kerzner, 77 So. 3d 2143rd DCANov 30, 2011Proceeds from sale of marital home were subject to homestead protection. Marital settlement agreement with wife #2 did not specifically call for payment of ex-wife's claims for back support with proceeds from sale of home.KerznerHomestead
Jurasek v. Jurasek, 67 So. 3d 1210 3rd DCAAug 31, 2011Claim for unequal distribution not proven. How funds were received or how much each party contributed to buy jointly titled property are irrelevant to disprove gift.JurasekEquitable Distribution
Bush v. Bush, 65 So. 3d 1101 2d DCAJul 27, 2011Error to include in equitable distribution depleted marital account when money is spent for needs during case.BushEquitable Distribution
Morenberg v. Morenberg, 65 So. 3d 1199 4th DCAJul 27, 2011Error to award spouse future royalties from grammar book written after the date of filing divorce petition.MorenbergEquitable Distribution
Wigley v. Hares, 82 So. 3d 932 4th DCAJul 27, 2011Hague Convention and International Child Abduction Remedies Act (ICARA). Mom who wrongfully removed child from St. Kitts proved by clear and convincing evidence that return of child to dad would put child at grave risk of harm. Failed to prove child was in a settled environment after one year. Proved claims of physical violence with testimony dad was abusive and threatened to kill child to punish mom. Mother not required to prove country of habitual residence would not or could not protect the child.WigleyHague Convention
Taylor v. Taylor, 67 So. 3d 359 4th DCAJul 20, 2011Final judgment set aside under Fla. Rule Civ P 1.540 where husband, by affidavits, established no notice to him of final hearing. Wife's lawyer's unsworn statements wife lulled husband into false belief she was not pursuing case.TaylorFinality of Judgments
In the Interest of MM v. DCF , 62 So. 3d 12892d DCAJun 24, 2011Order suspending contact with children departed from the requirements of law - failure to find visitation not in children's best interest.MMTimesharing
Bachman v. McLinn, 65 So. 3d 71 2d DCAJun 10, 2011Retroactive application of section 61.13 as amended in 2008 was improper to "custody" and "visitation" issues - must apply law in effect at time of final judgment. BachmanTimesharing
Horton v. Horton, 62 So. 3d 689 2d DCAJun 10, 2011Coverture fraction.HortonEquitable Distribution
Crawford v. Barker, 64 So. 3d 1246 Supreme Court of FloridaJun 09, 2011Absent MSA providing who is or is not to receive death benefits or specifying beneficiary, the designation on policy, plan, or account controls.CrawfordBeneficiary Designations
Poe v. Poe, 63 So. 3d 842 5th DCAMay 20, 2011Upholds not imputing income to spouse based on temporary loans from parents not to be continuing.PoeChild Support
Slowinski v. Sweeney, 64 So. 3d 128 1st DCAMay 18, 2011Child born to intact marriage cannot be subject of paternity action brought by biological dad.SlowinskiPaternity
Fuentes v. Fuentes, 59 So. 3d 12042d DCAApr 27, 2011Unequal distribution requires findings. Error to include funds paid for living expenses.FuentesEquitable DIstribution
Fortune v. Fortune, 61 So. 3d 441 2d DCAApr 27, 2011Affidavits are inadmissible hearsay - can't prove facts at an evidentiary hearing re loan. Award of dependency exemption must be conditioned on being current in payment of child support.FortuneEquitable Distribution
Grillo v. Clay, 59 So. 3d 337 4th DCAApr 27, 2011Visitation can't be conditioned on payment of parent's financial obligations, including child support.GrilloTimesharing
Paiz v. Castellanos, Case No. 06-22046-CIV, 2006 WL 2578807Southern District of FloridaAug 28, 2006The Inter-American Convention's provisions regarding service of process neither mandatory nor exclusive.PaizFamily Law Procedure
Beers v. Beers, 724 So. 2d 109, 1155th DCAOct 23, 1998Trial court may consider remote (greater than 2 years) dissipation of marital assets.BeersEquitable DIstribution
Armao v. McKenney, 218 So. 3d 4814th DCAJan 01, 1970Trial court rejected Lenore's claims Patti, during premarital cohabitation, promised her premarital retirement earnings would fund parties' golden years & parties pooled assets.
Armao v. McKenney, 218 So. 3d 481, 485 (Fla. 4th DCA 2017) held unmarried cohabitants may agree to enforceable contract that establishes rights & responsibilities as long as there's valid, lawful consideration separate from any express or implied agreement re sexual relations.
Parties could have considered written domestic partner agreement. For overview & more discussion, see Sampson Collaborative Blog Domesitc Partnership Agreements
ArmaoPrenuptial & Postnuptial Agreements
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