Selected Family Law Appellate Update for week ending 4/21/17

C.J.I.-R. v. C.M. (Second DCA, April 19, 2017)

At trial the mother introduced the father’s financial affidavit which showed, among other things, his gross income and monthly tax liability.  The father testified that the affidavit was accurate and the mother did not cross examine nor put on contradictory evidence regarding the father’s income.  Despite this, the trial court calculated the father’s net income for child support purposes using a different monthly tax figure than stated in the affidavit.  The Second DCA reversed because the record evidence did not support the trial court’s deviation from the numbers set forth in the father’s financial affidavit.


Frezza v. Frezza (Second DCA, April 19, 2017)

The wife challenged, among other things, an award of attorney’s fees against her in the trial court’s divorce decree.  The order stated that the wife had caused unnecessary litigation that led to seven additional hours of attorney time at the reasonable rate of $300 per hour.  The wife argued that these findings were inadequate.

The wife first argued that the final judgment did not contain findings as to need and ability to pay.  The Second DCA noted this, but explained that although such findings are mandatory, they may be made in the judgment itself or at the hearing.  Because no transcript of the hearing existed, the DCA was required to presume that these findings had been made at the hearing.

Second, the wife argued that the final judgment did not contain the proper Rowe findings necessary to support an award of attorney’s fees.  The District Court agreed that such findings were mandatory and that these findings needed to appear in the judgment itself.  However, the Court concluded that this requirement was satisfied by the trial court’s explicit finding that the hours expended and the rate charged by the husband’s attorney were “reasonable.”

Accordingly, the Court affirmed the final order (but remanded with instructions to correct a scrivener’s error).


Wayne v. Einspar-Wayne (Fifth DCA, April 21, 2107)

The trial court erred by failing to include certain debts in its equitable distribution scheme.  The father cosigned with the parties’ son on his student loans, and the mother cosigned with the son on his vehicle loan.  Because there constituted financial obligations incurred during the marriage, the trial court was required to treat them as marital debts and distribute them accordingly.


Wilkerson v. Wilkerson (Fifth DCA, April 21, 2017)

The trial court ordered that the father pay child support in an initial divorce case based on an imputed income even though the father was incarcerated at the time.  The father appealed.

The Fifth DCA began its analysis by recognizing that the Supreme Court does not allow for an automatic reduction to an existing child support obligation when the payor becomes incarcerated.  The District Court explained that the Fourth District interprets this ruling to allow imputation of income to an incarcerated spouse.  Accordingly, the Fourth District has held that income “should be imputed” and child support established in an initial child support determination where the payor is incarcerated and that “arrearages [should] accumulate.”  Conversely, the First District has held that the law does not allow imputation of income to an incarcerated spouse in an initial child support determination.

The Fifth District ultimately agreed with the reasoning of the Fourth District and held that income could be imputed to an incarcerated spouse because incarceration is essentially a type of “voluntary” unemployment.

Selected Family Law Appellate Update for week ending 4/14/17

Aranda v. Padilla (Fourth DCA, April 12, 2017)

(1) The trial court erred by awarding the motion sole parental decision making authority without an explicit finding—in the judgment or on the record—that shared parental responsibly would be “determinantal” to the child.  The District Court noted that the trial court justified its award based on the fact that the parents where high conflict and had an “unhealthy” relationship.  However, the Court explained that this finding was “in the vein of a best interest finding” and failed to “rise to the level of a finding of detriment to the child.

(2) The trial court erred by failing to award the father any holiday timesharing without making findings against such an award.  The District Court held that holiday visitation has become “so routine and necessary that to deny it requires factual findings justifying that decision.”

Family Law Appellate Update for week ending 3/31/17

Zarzaur v. Zarzaur, Jr. (First DCA, March 27, 2017

The trial court permitted the husband to obtain all of the wife’s mental health and other medical records.  The First District granted certiorari review and quashed the bulk of the order.

Initially, the District Court observed that mental health records are typically protected by the psychotherapist-patient privilege.  Thus, the wife’s records would be private unless the privilege was waived or inapplicable.  The husband made several arguments in favor of this conclusion, each of which was rejected.  First, the District Court held that the wife had not inadvertently waived her privilege.  The Court acknowledged that where a “calamitous event” occurs during a custody case, a trial court may find an implicit waiver of the statutory privilege.  However, in the instant case there was no evidence that such an event had occurred.  The District Court noted that the trial court could reconsider this conclusion if the husband was able to put on evidence of such a calamitous event at a future evidentiary hearing.  Second, the District Court held that the wife had not intentionally waived her privilege by agreeing to submit to a psychological evaluation under section 61.20.  Although the parties would have waived the privilege with respect to any records that they voluntarily presented to the evaluator because the parties agreed that such records would be discoverable, records beyond the scope of that agreement remained protected by the psychotherapist privilege.

Finally, the District Court concluded that the trial court had erred by ordering production that the wife produce her medical records directly to the husband without first requiring that they be subject to in-camera review.  The Court explained that a trial court must require in-camera review of such sensitive records to first determine whether they are relevant and non-privileged before permitting their release to the opposing party.  Failure to implement such safeguards is reversible error.

In a partial dissenting opinion, Judge Makar opined that the record contained ample evidence to support a conclusion that a “calamitous event” had occurred and that the wife had therefor waived her psychotherapist-patient privilege


Patel v. Shah (Third DCA, March 29, 2017)

The trial court denied the wife’s request for alimony at a final hearing because it found that the wife, pro se, had failed to file a counter-petition seeking such relief.  The Third District reversed, holding that the trial court should have treated the wife’s “Reply” to the husband’s divorce petition as an answer and counter-petition.  Because the wife’s Reply had, among other things, made allegations regarding the husband’s income and the wife’s need for support until remarriage, the trial court should have looked beyond the title of the pleading to the “content” and the “substance” of the document.


Rorrer v. Orban (Third DCA, March 29, 2017)

In a post-judgment case, the trial judge fashioned an attorney’s fees award to the former wife by adding the parties’ total attorney’s fees and pro-rating that total based on the parties’ respective incomes.  At the same time, the trial court noted that the former husband had engaged in improper litigation tactics and had caused the parties to incur more fees than would otherwise have been necessary.  The Third District reversed, holding that the trial court improperly created its own formula (which the trial court stated was meant to dissuade future litigation on both sides) instead of basing its award solely on the statutory factors, primarily need and ability to pay.  The District Court also observed that although the trial court found that the former husband was to blame for the high costs of the litigation, it did not appear to have based its award on this this finding.  As a result, the former wife was forced to bear at least some of the costs for the former husband’s behavior.  According, the District Court reversed the fees order for the trial court to reconsider it based on the appropriate statutory factors, including Rosen.

Although moot, the Court wrote additionally to explain that the trial court could rule on fees even with respect to prior orders that did not expressly reserve jurisdiction to adjudicate fees.  In so ruling, the Court observed that these orders were all part of a general post-judgment litigation and that no inequity would be done by allowing the trial court to fashion a fees award that included litigation related to these orders.

Family Law Appellate Update for week ending 3/10/17

McClure v. Beck, Jr. (Fourth DCA, March 8, 2017)

In a modification proceeding, the trial court modified the parties’ shared parental responsibly to provide that if the parties are unable to agree on major decisions affecting the minor child, that the father would have ultimate decision-making authority.  The trial court stated that major decisions “include, but are not limited to, decisions about the children’s education, healthcare, and other responsibilities unique this family.”  The mother appealed this provision and the Fourth DCA reversed.

The District Court noted that a court may award shared parental responsibly while granting one parent ultimate decision making authority, but that it may do so only if it explicitly delineates the “specific aspects of the child’s welfare over which the parent shall have ultimate responsibly.”  In this case, the language of the trial court’s order was infinitely broad and therefore in violation of section 61.13(2)(b)(2)(a).  The District Court remanded this issue to the trial court solely for the purpose of identifying the specific areas over which the father would have final decision-making authority

Family Law Appellate Update for week ending 3/3/17

Conlin v. Conlin (Second DCA, March 1, 2017)

The Second District reversed a permanent alimony award because it found that the trial court erroneously calculated the husband’s ability to pay based on his gross, rather than his net, income.  The Second District inferred this from the fact that the final judgment contained an explicit finding as to the husband’s gross income but no such finding for his net.  Because the record did “not clearly demonstrate that the alimony award was based on the former husband’s net income, the Court reversed for additional findings.

The District Court also reversed and remanded the trial court’s equitable distribution scheme because the trial court failed to make a finding as to whether a certain debt was marital or non-marital.  Rather, it simply ignored the debt in its final judgment.  Thus, the trial court failed to comply with its statutory obligation to identify all assets and liabilities and to characterize them as marital or non-marital before effectuating equitable distribution.

Family Law Appellate Update for week ending 2/24/17

Pattison v. Pattison (First DCA, February 24, 2017)

In a post-judgment contempt case, the trial court held the former husband in willful contempt for failing to make his alimony payments.  As a sanction, the court: (1) sentence the former husband to eleven months and twenty-nine days incarceration; (2) ordered the former husband to make specified monthly payments going forward; and (3) suspended the sentence, stating that the sentence would automatically be reinstated if the former husband missed any future payments.  The former husband appealed and the District Court reversed.

The Court held that this arrangement violated the former husband’s due process in that it provided for an automatic future finding of contempt (and incarceration) if the former husband failed to comply.  This violated the well-settled rule that incarnation for civil contempt may be ordered only after a finding that the contemnor has the present ability to comply.  Thus, the trial court’s order deprived the former husband of the ability to defend a future contempt.


Landrum, Jr., v. Landrum (First DCA, February 24, 2017)

The husband owned a premarital parcel of land 50/50 with his sister.  During the marriage, the husband and wife gave the sister marital funds to pay for an unrelated debt.  In return, the sister deeded her half of the property to the husband.  Accordingly, at the time of the divorce the land was deeded 100% in the husband’s name.

The trial court found that the land was a marital asset and the husband appealed.  The First District reversed on this issue, explaining that one-half of the property remained the husband’s pre-marital asset, and that other half of the property was a joint marital asset.


Schafstall v. Schafstall (Third DCA, February 22, 2017)

In an initial divorce case, the trial court calculated the wife’s income for child support purposes by, among other things, including: (1) “in kind” income equal to the amount the husband was ordered to pay toward the home in which the wife was residing; (2) “in kind” income equal to what the wife’s mother was paying for the wife’s cell phone in exchange for the wife performing bookkeeping tasks for her mother’s business; and, (3) imputed income of about $500 based on what the wife could be earning if she worked part time.  The wife appealed and the District Court affirmed.

First, the District Court explained that the trial court was required to include the husband’s monthly mortgage payments as “in kind” income to the wife.  Because these payments reduced the wife’s living expenses, it was “mandatory” that the trial court include them pursuant to section 61.30(2)(a)(13).

Second, the trial court was correct to include the wife’s mother’s payments of the wife’s phone bill as income because the definition of income under section 61.046 includes “any form of payment to an individual . . . made by any person.”

Finally, the Court determined that it was appropriate to impute the wife with part-time income because: (1) she refused to work; (2) she admitted in a deposition that she could work part-time; and, (3) she conceded that she used to work twenty hours per week at $20 per hour even while suffering from the same “chronic fatigue syndrome” that she was presently claiming prevented her from working.  The Court noted that the trial court appropriately rejected the wife’s expert’s testimony that the wife could not work because the conclusion was based on the wife’s “self-reported condition, as opposed to an independent scientific and medical evaluation.”  From this, the trial court imputed the wife an income equal to 15 hours every other week at $15 per hour; a lower amount than she had been earning while employed.  Considering all of the circumstances, the District Court found this conclusion to be supported by the evidence.

Family Law Appellate Update for week ending 2/17/17

Ledoux-Nottingham v. Downs (Florida Supreme Court, February 16, 2017)

The mother and father divorced in Colorado in 2010 and soon after the father died.  The father’s parents (the “grandparents”) sought visitation with the children and the Colorado court granted their request.  The mother domesticated the Colorado order in Florida and asked to modify it based on longstanding Florida precedent that grandparents are not entitled to visitation rights and that granting such rights violates the privacy provisions of the Florida constitution.  The trial court held that the Colorado visitation order was enforceable under the Full Faith and Credit clause of the United States Constitution.  The mother appealed and the Fifth DCA affirmed, certifying conflict with a contrary holding out of the Fourth DCA.

The Florida Supreme Court affirmed.  First, the Court held that out-of-state custody orders are entitled to full faith and credit, and not merely comity, under the Parental Kidnaping Prevention Act of 1980 which requires, among other things, that each state enforce the custody and visitation determinations of other states.  The Court then determined that no public policy exception to the Full Faith and Credit Clause existed.  Although the Court agreed that statutes giving grandparents visitation rights in Florida are unconstitutional under Florida’s right of privacy, it explained that this was not the issue in the current case.  Instead, the question was merely whether Florida should enforce the duly entered Colorado judgment.  On that question, the Court answered in the affirmative.

Family Law Appellate Update for week ending 2/10/17

Hudson v. Hudson (First DCA, February 7, 2017)

During the divorce proceedings, the husband and wife entered into a partial settlement agreement giving the wife exclusive use and possession of the marital home.  Despite this, the husband continued to reside with her until trial.  At trial, the wife testified that husband had refused to leave, and she argued that she was entitled to past-due rent for his failure to do so.  The trial court agreed.

The First District reversed, observing that the wife had failed to plead a claim for past-due rent and that the issue had not been tried by consent.  In so doing, the District Court explained that the wife’s addition of this claim to her financial affidavit a week before trial did not substitute for the requirement to amend her petition and plead entitlement.  Likewise, although the fact that the husband remained in the home despite the language of the settlement agreement may have supported a civil claim for trespass damages, the wife had failed to plead for same and therefore was not entitled to such relief.


Garcia-Lawson v. Lawson (Fourth DCA, February 8, 2017)

In the parties’ divorce, the Court: (1) awarded the wife a portion of the husband’s retirement account; and, (2) ordered the wife to make an equalizing payment to the husband.  When the wife failed to make the equalizing payment, the trial court enforced its order by entering a qualified domestic relations order (QDRO) ordering that a portion of the retirement account that the wife had received in the divorce be transferred back to the husband.  The wife appealed and the Fourth District reversed.

The District Court emphasized once again that a party seeking enforcement of an equitable distribution award is entitled only to the same remedies that would be available to a normal creditor.  Pursuant to IRS regulations, retirement assets are generally not subject to creditors’ claims.  Accordingly, the trial court erred by effectively awarding the husband a portion of the wife’s retirement assets as a sanction for her failure to comply with the court’s equitable distribution order.


Garcia-Lawson v. Lawson (Fourth DCA, February 8, 2017)

The former wife filed her petition for divorce three years after the minor child turned 18.  Among other things, she requested retroactive child support.  The trial court denied her claim on summary judgment, holding that she lacked standing to seek retroactive support because the child was beyond the age of 18 and there was no showing that the child was otherwise legally dependent under Florida law.  The Fourth District affirmed.


Family Law Appellate Update for week ending 2/3/17

Munoz v. Munoz (Second DCA, February 3, 2017)

The trial court entered a final judgment that significantly restricted the father’s timesharing rights with the children by: (1) implementing a 3-tiered phase-in for the father’s daytime timesharing; and (2) failing to award the father any overnight visitation even after completion of the phase-in plan.  The father appealed and the Second District reversed.

Although the record lacked a transcript, the District Court was able to reverse based on errors on the face of the judgment.  First, the tiered phase-in plan was patently inappropriate given that the child’s therapist was in charge of determining whether the father could enter the second and third phases of the plan.  This arrangement constituted an improper delegation of the court’s authority to a third-party and therefore reversible error.

Second, the Court stressed that an order that restricts or denies meaningful visitation “must clearly set forth the steps the parent must take in order to reestablish time-sharing with the children.”  The order at issue violated this rule in that it failed to clearly provide a means by which the father could establish overnight timesharing.  Accordingly, the order was necessarily reversed and remanded.

Family Law Appellate Update for week ending 1/27/17

Beckford v. Drogan (Fourth DCA, January 27, 2017)

In this en banc decision, the District Court receded from its prior precedent which held that section 742.045, which authorizes attorney’s fees in paternity cases, did not allow for appellate fees related to paternity cases.  The Court noted that nothing in the statute prohibits such awards, and that it was therefore inappropriate to read such prohibition into the statutory language, as the Court had done previously in Gilberston v. Boggs.  The Court further noted that its holding expressly conflicts with the Fifth District’s contrary conclusion in Starkey v. Linn (as does the Second District’s holding in B.K. v. S.D.C.).


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