Smith Family Law Firm Blog

This blog provides brief summaries of the most recent family law appellate cases and statutes that may effect the issues our existing and prospective clients are facing. This is not an exhaustive list and do not automatically assume that if a case seems similar to your facts that the same result will be reached. We encourage individuals to secure counsel. These are very difficult issues to go through alone.

Smith Family Law Update: Week of April 17, 2017: 5th DCA Case of First Impression!!

Posted by Roy Smith on Apr 21st 2017

C.J.I-R v. C.M.: Fla 2nd DCA, April 19, 2017:
Trial court erred in a paternity case by using an improper figure for Father’s net income when calculating child support (the guideline used a tax liability which was not supported by any evidence provided).

Frezza v. Frezza: Fla. 2nd DCA, April 19, 2017:
Trial court’s decision was affirmed as there was no transcript and former wife, who brought appeal, failed to submit a statement of the evidence. However, case was remanded for clarification of attorney fee provision as one section called for fees to be paid by Wife but a separate section provided for the parties to pay their own fees. Otherwise, the judgment met all requirements under Rowe.

Wayne v. Einspar: Fla. 5th DCA, April 21, 2017:
Trial court should have listed, as marital liabilities in equitable distribution, the student loan of the parties’ child and a car loan for a vehicle belonging for the child as both were cosigned for by the parties prior to the petition for dissolution being filed. Further, the matter was remanded to determine credits for temporary alimony made during the pendency of the case.

Wilkerson v. Wilkerson: Fla. 5th DCA, April 21, 2017: FIRST IMPRESSION!!
Husband was not “blindsided” by Wife’s claim for child support. While Wife’s petition for dissolution did not include a claim for child support, her pretrial statement addressed the issue and Husband likewise responded to said claim. In a case of first impression, the 5th DCA held that a court can set an initial child support obligation by imputing income to an incarcerated parent. (aligning with the 4th DCA in McCall and conflicting with the 1st DCA in Llamas). The 5th DCA noted that an individual’s actions that lead to incarceration are voluntary for purposes of Florida Statutes 61.30 and that “[i]t would be inconsistent to allow an incarcerated parent’s child support obligation, which was set before incarceration, to continue to accrue until the parent’s release from prison, and yet not allow the trial court to initially set a minimum amount of child support for an individual already incarcerated.”
Interesting dissent by Justice Palmer.


Smith Family Law Update: April 3 through April 14, 2017

Posted by Roy Smith on Apr 14th 2017

Martinez v. Martinez: Fla. 2nd DCA, April 5, 2017:
Where evidence that Wife’s need (in a 30 year marriage) exceeded the trial court’s award of alimony where Husband had ability to pay the articulated need, it was error to award less than the need as evidenced by Wife. It was improper to impute to Wife some additional form of income which was only speculative.

Sciame v. Sciame: Fla. 2nd DCA, April 5, 2017:
Trail court erred in ordering Former Husband to elect survivor benefits to secure the award of a portion of his pension to Wife. Adding such a provision in an enforcement proceeding was an effective modification of equitable distribution without authority.

Cook v. Cook: Fla. 2nd DCA, April 5, 2017:
Trial court erred by deny permanent alimony in 18 year marriage without including the statutory findings of facts to support the denial of alimony. Statement that”[t]here was no competent substantial evidence to support the wife’s request for alimony. The Court has reviewed the Wife’s alimony claim in accordance with Florida Statute 61.08” was insufficient.

Rodriguez v. Lorenzo: Fla. 3rd DCA, April 5, 2017:
Trial court’s ruling denying Wife of a short term marriage alimony was upheld. Further, Wife’s claim for “psychological damages” for acts which occurred after the entry of the final judgment were improper and court did not have jurisdiction to entertain such claims.

Fawcett v. Gainey: Fla 5th DCA, April 7, 2017:
Trial court erred in including Wife’s engagement ring in value of jewelry for equitable distribution as engagement rings a pre-marital property.

Noe v. Noe: Fla. 1st DCA, April 13, 2017:
Trial court did not err in denying a motion to dissolve and injunction for domestic violence. While Father may have demonstrated that the scenario underlying the injunction no longer existed, it did not mean that the Mother could not show that she reasonably maintained a fear of becoming a victim of domestic violence.
***Facts are horrible on this one. Click link to learn more.

Regan v. Regan: Fla. 4th DCA, April 12, 2017:
Husband, on appeal claimed that the reduction of his alimony from $9,000.00 (which was previously agreed to) a month to $7,800.00 a month was insufficient. He claimed that Wife should have had minimum wage imputed to her and that she be required to withdraw from her retirement to reduce alimony obligation. Trial court found that Wife’s steps to decrease her monthly need (by downsizing) was a basis for a reduction in alimony. However, trial court did not have to impute minimum wage to Wife when such earnings were not contemplated by the Marital Settlement Agreement. Further the Marital Settlement Agreement did not contemplate the use of retirement funds or income which could be derived from such funds a source of income for modification.

Brussot v. Brussot: Fla. 4th DCA, April 12, 2017:
Trial court erred in awarding property without providing written findings determining whether the property was a marital asset and making written findings valuing and equitably distributing the property.

Aranda v. Padilla: Fla. 4th DCA, April 12, 2017:
Trial court erred in paternity case by 1) awarding the mother sole parental responsibility without finding that shared parental responsibility would be detrimental to the child; 2) failing to address timesharing on holidays, special occasions, and school breaks; and 3) failing to consider the parties’ financial positions when denying father’s request that travel expenses be shared.


Smith Family Law Update: Week of March 27, 2017

Posted by Roy Smith on Mar 31st 2017

Hooker v. Hooker: Fla Sup Ct, March 30, 2017:
Fourth DCA erred by not deferring to the trial court’s findings as to whether there had been donative intent (converting non-marital property to marital property). The 4th DCA should have only focused on whether the finding was sufficiently supported by the record as would have been appropriate under the “competent, substantial evidence” standard. The 4th DCA made the error of substituting its own judgment and findings of fact regarding whether the interspousal gift existed by improperly reevaluating the evidence to determine if it satisfied the preponderance of the evidence standard (which is applicable at trial, not on appeal).

***Interesting facts in the underlying case at the trial level as the parties had a prenuptial agreement indicating that the parties would keep their premarital assets and any appreciation of those assets. The two properties at issue were indeed premarital and neither were converted to Wife’s name in whole or in part. Wife argued that there was still an interspousal gift (elements being a) donative intent, b) delivery or possession of the gift, and c) surrender of dominion and control of the gift). Husband used non-marital funds to build on the properties and pay for expenses on the properties. The properties were used as the family’s summer homes. However, the trial court found that there was donative intent stating that “In contrast to the evidence presented at the Final Hearing regarding the way the Husband exclusively handled his other real property, assets and investments, [the subject properties] were treated as the joint family property of the Wife.”

Patel v. Shah: Fla 3rd DCA, March 29, 2017:
Trial court erred in finding that Wife had not filed a counter-petition and therefore had not raised a need for alimony. The Wife’s responsive pleading, though titled “Reply,” was functionally a counter-petition as it a) contested the Husband’s claim that there was no marital property, b) identified Husband’s property, c) described Husband’s income, and d) described Wife’s non-marital belongings. Wife’s “Reply” also included thirty “Prayers” including requests for the equivalent of alimony and equitable distribution. Trial court’s failure to accept the “Reply” as a counter-petition led to several additional errors such as failing to require Husband to comply with mandatory disclosure as well as the finding that Wife had waived a claim for alimony.

Rorrer v. Orban: Fla 3rd DCA, March 29, 2017:
Trial court erred in several ways by applying its own calculation when awarding attorney’s fees based upon its belief that the parties should share in the expense of attorney’s fees. The court wrongfully combined the attorney’s fees and costs of the parties and then awarded Wife only a portion of that total based on a comparison of the parties’ incomes rather than on a determination of need and ability to pay. The court further erred by not considering Husband’s documented improper litigious behavior which ran contrary to the court’s own stated goal of encouraging litigant to economize legal expenses. Finally, Husband’s argument that the post-judgment fees should not have been considered as the Court had not retained jurisdiction was rejected.

Riddle v. Riddle: Fla. 4th DCA, March 29, 2017:
A court does not need to find a substantial change in circumstances to modify a temporary time sharing (custody) order. Such a finding is only necessary when modifying a final decree. The trial court need only not abuse its discretion in entering such a modification.