Selected Family Law Appellate Update for week ending 11/10/17

Lancaster v. Lancaster (First DCA)

The husband and wife entered into a settlement agreement that provided that neither would owe child support to the other.  The wife appealed that trial court’s ratification of this agreement in its final judgment.

The First District reiterated that parents may not contract away or waive the rights of their child for support and that, therefore, the trial court has an “independent duty” to determine the appropriateness of child support provisions in a marital settlement agreement before incorporating them into a final judgment.”  The District Court explained that the starting point for the trial court’s analysis should be the statutory child support guidelines, but that in certain situations it is appropriate for the court to deviate from the guidelines if doing so is in the child’s best interests.

Here, the final judgment stated that it was in “the children’s best interests,” but neither it nor the parties’ settlement agreement addressed the needs of the children or the financial circumstances of the parties.  Lacking this, the District Court was unable to assess whether the trial court “discharged its independent obligation to assess whether the parties’ agreement serves the best interests of the children.”  The Court therefore reverses the judgment and remanded it for additional findings and/or proceedings.


Selected Family Law Appellate Update for week ending 10/13/17

Broga v. Broga (First DCA)

The trial court imputed the husband an income of $80,000 per year on the assumption that he could secure a job as a corporate pilot.  The court based the husband’s child support and an award of attorney’s fees on this amount.  The District Court reversed.

The husband was currently working as a disability examiner earning $35,000.  He had not worked as a pilot since 2013, and the evidence showed that he could not work as a commercial pilot without undergoing and expenses re-certification process.  The husband testified further that he had tried without success to obtain a position as a corporate pilot.  Moreover, the wife’s expert testified that he was not aware of any corporate pilot positions in the area for which the husband could qualify and which would allow him to exercise his 50/50 timesharing with the parties’ children.  Because of this, the District Court held that the trial court improperly imputed the husband with income and reversed the child support and attorney’s fees award.

Even though it was reversing the attorney’s fees award for the reasons stated above, the District Court noted that the trial court should be cautious before awarding fees in the future based on the husband’s “inappropriate litigiousness.”  The Court warned that such awards should be “rare” and require that the trial court include highly specific findings of fact.  It added that the trial court must make a finding that the husband has the ability to pay any such award.


Dukes v. Griffin (First DCA)

In a post-judgment modification action, the trial court changed the schedule so that the mother, who previously had majority timesharing, would now have only every-other weekend with the children.  On appeal, the mother argued that the trial court was required to set out the steps that she could take to regain majority custody.

The First District Court disagreed, observing that nothing in the statutes required that a final judgment of modification provide the steps necessary for one parent to return to more satisfactory timesharing.  In so doing, the Court noted that other districts have required that trial courts include such steps in modification judgments (including the 2d DCA and the 4th DCA).  Because it could find no statutory basis for such a requirement, however, the First District affirmed the trial court’s order and certified conflict.


Betts v. Betts (Second DCA)

During the marriage, the husband had paid $350 per month toward the mortgage on the wife’s non-marital property.  The trial court awarded the husband a dollar-for-dollar credit on these payments in equitable distribution.  The Second District reversed, holding that the credit could be based only on the amount of funds paid that actually “reduced the indebtedness on the property.”

Selected Family Law Appellate Update for week ending 10/6/17

Perkins v. Simmonds (Fourth DCA)

Perkins filed a petition to establish paternity, which the trial court dismissed for lack of standing after finding that the child in question was born to an intact marriage.  Perkins appealed and the Fourth DCA reversed.

At hearing, the trial court found that Perkins had been involved in this child’s life since birth and that fairness would dictate that the Perkins be allowed to have continuing involvement in the child’s life.  Nevertheless, the trial judge found that the law prevented a putative father from seeking to establish parental rights over a child born to an intact marriage.

The Fourth DCA observed that a paternity petition can be brought only when paternity has not already been established by law.  It noted further that the law “presumes that the husband of the biological mother of a child is the child’s legal father.”  However, although some districts (namely the First District) have held that this presumption is essentially irrefutable, the Fourth District emphasized that the presumption—while difficult to rebut—is only a presumption.

The Fourth DCA quoted language from its earlier opinion in M.L. v. DCF, wherein it stated that the presumption may be overcome in rare circumstances where “common sense and reason are outraged” by applying the presumption.  Here, where Perkins had been part of the child’s life since birth, had financially supported the child, and where the child had Perkins’ last name, the District Court held that applying the presumption of legitimacy “at the cost of the child’s established relationship with her father” would not be in the child’s best interests.


Nevilile v. McKibben (First DCA)

In a paternity case, the mother challenged several aspects of the trial court’s award.  The First District reversed in part and affirmed in part.

The trial court awarded the father ultimate decision-making authority over “all matters pertaining to the child.”  The District Court reversed, starting from the premise that trial courts must order shared parental responsibility until they find that doing so would be detrimental to the child.  If it is in the child’s best interests, a court may award ultimate decision-making authority to one parent over specific aspects of a child’s welfare.  However, a “blanket, nonspecific award of ultimate responsibility is contrary to the statutory concept of shared parental responsibility.”  Here, the trial court failed to find that any of the mother’s decisions were dangerous to the child; according, the award of blanket ultimate decision-making authority was erroneous.

Next, the trial court awarded the parents 50/50 timesharing.  Mother asserted that the trial court erred by not explicitly making a finding that such schedule was in the child’s best interests.  The District Court disagreed, explaining that a plain reading of the final judgment showed that the court had considered each of the 61.13 statutory “best interest” factors.  Although the trial court did not use the magic words “best interests,” it was not required to do so under the law.  Thus, the District Court affirmed this aspect of the judgment.

Third, the trial court changed the child’s last name to the father’s solely based on the father’s testimony that he wanted to “carry on” his family name and the court’s finding that it would be more “convenient” for the child to have his father’s last name.  The District Court reversed, holding that this reasoning was insufficient to justify a name change over the mother’s objection.

Finally, the District Court held that the trial court erred by failing to address the mother’s claim that the father had not paid his daycare and medical expense obligations in accordance with the trial court’s temporary order.  Noting that the temporary order would no longer be enforceable once the final judgment was entered, the District Court remanded the issue to the trial court for resolution and inclusion in the final judgment.



Frost v. Frost, Jr. (First DCA)

The trial court entered a post-judgment order restricting the former wife to supervised visitation with the child.  The order did not set forth the steps that the former wife needed to take to restore her unsupervised visitation, and the former wife appealed.

The District Court refused to address the merits of the former wife’s argument, finding that she had not properly preserved the issue for review.  Specifically, the former wife failed to explicitly request that the trial court include the steps that she could take within its final order, even after she had received the order and should have noticed that the steps were not included.  The District Court explained that because the former wife had not preserved this issue, and because leaving these steps out of the final order was not “fundamental error,” the Court could not address the former wife’s arguments.

Selected Family Law Appellate Update for week ending 9/29/17

Lukacs v. Ice (First DCA)

The trial judge in this paternity case had also presided over the father’s recent divorce.  While hearing evidence relating to the father’s propensity for violence, the judge referenced similar accusations in the father’s discover case.  The father argued that the judge should have been disqualified as a result thereof.  The Fifth DCA disagreed.

First, the District Court noted that the father’s motion was untimely and therefore procedurally inadequate.  It went on, however, to address the merits of the father’s assertions, holding that the judge’s negative comments about the father in this case were not grounds for disqualification because they related to the matters in front of the judge at the time.  The District Court observed that where a judge makes negative comments about a litigant while hearing an unrelated issue, such comments may require disqualification.  Here, however, the judge’s comments were relevant to the issue at hand and therefore the disqualification motion was properly denied.

Selected Family Law Appellate Update for week ending 9/22/17

Carson v. Carson (Fifth DCA)

The father sought to hold the mother in contempt for denying his timesharing.  The trial court granted the father’s motion and ordered make-up timesharing, but it also ordered that both parties complete an 8-week parenting and divorce court.  The father appealed the portion of the order requiring that he submit to this course.

The District Court reversed, noting first that neither party had pled for such relief.  It observed that section 61.21 allows the court to require both parties to take a parenting course if it modifies a final judgment, and that section 61.13(4)(c) allows the court to require any party found to be in violation of a timesharing order to take such a course, but that neither section could apply to the father under the facts of this situation.  Accordingly, the trial court lacked the authority to require the father to attend a parenting class.  (Incidentally, the District Court affirmed the requirement that the mother attend a parenting class.)


Ortiz v. Ortiz (Third DCA)

During the parties’ divorce, they entered into a partial settlement agreement resolving child support and providing that both parties would be responsible for their own attorney’s fees.  The trial court concluded that this did not preclude it from awarding the wife prejudgment attorney’s fees.  The Third District agreed, noting that longstanding precedent prevents parties from agreeing by contract to “waive temporary support [or] attorney’s fees before a final judgment is entered.”

The District Court reversed the trial court’s attorney’s fees award, however, because the judgment did not include factual findings as to the reasonableness of the fee.  In a partially dissenting opinion, Judge Rothenberg argued that because the appellant/husband had failed to include a transcript of the final hearing, the District Court should have presumed that the trial judge made the requisite findings on the record and that, as a result, the award should have been affirmed.


Adkins v. Sotolongo (Third DCA)

The Third DCA granted certiorari and struck a trial court’s order that conditioned the mother taking a deposition of the guardian ad litem (GAL) on the mother paying the GAL in advance for her time.  The only remaining issue in the parties’ underlying paternity case was the amount of fees to which the court-appointed GAL was entitled and how such fees should be apportioned between the parties.  The mother, who was deemed indigent, sought to depose the GAL who obtained a protective order from the trial court that prevented the mother from obtaining the deposition unless or until she pre-paid the GAL for her time.

The Third DCA granted the mother’s petition for certiorari and reversed the trial court’s order, noting its prior precedent that a trial court’s order preventing the deposition of a material witness was the type of “irreparable harm” necessary to invoke the District Court’s certiorari jurisdiction.  Because the mother was indigent, and because the trial court had not yet found that had the ability to pay the guardian’s fees, it’s discovery order effectively—and inappropriately—barred the mother from taking the GAL’s deposition.

Selected Family Law Appellate Update for week ending 9/6/17

Pulkkinen v. Pulkkinen (First DCA)

The parties were originally divorced in Michigan.  That original decree provided that if certain criteria were met, the mother (who received child support from the father) would need to give the father a credit toward his future child support obligations.  The mother ultimately refused to do so, and the father brought enforcement proceedings in Florida.

The trial court agreed with the mother that this provision was counter to Florida public policy because it would deprive the child of support.  The First DCA reversed, citing the Supreme Court’s recent decision in LeDoux-Nottingham v. Downs, 210 So. 3d 1217 (Fla. 2017).  There, the Supreme Court held that Florida cannot “elevate its public policy over the policy behind another state’s judgment.”  Because there was no evidence that the original divorce decree violated Michigan public policy, a Florida could not void the relevant provision simply because it violated Florida public policy.

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


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