Case Law updates

Smith Family Law Update: Week of May 1, 2017

Posted by Roy Smith on May 05th 2017

Robinson v. Robinson: Fla 1st DCA, May 5, 2017:
Husband’s argument that trial court should have reduced support more than it did was mooted by the heavier burden resting upon a movant seeking reduction when the parties agreed upon original agreement. However, trial court erred in requiring payments be made through State Disbursement Unit when neither party requested such relief.

Gotro v. Gotro: Fla 1st DCA, May 5, 2017:
In general, it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceeding unless a party’s misconduct during the proceedings resulted in dissipation. This must be supported by a specific finding of intentional misconduct such as use for a party’s own benefit unrelated to the marriage. In this case, the trial court erred by essentially punishing Husband even though the money utilized was for marital expenses including wife’s temporary alimony, temporary fees and a majority of the marital expenses. As equitable distribution had to be recalculated, alimony had to be recalculated (although court noted that the 39 year marriage created a presumption for permanent alimony). Further, trail court has discretion to order life insurance to secure alimony but needs to list the special circumstances supporting such insurance.

Hua v. Tsung: Fla 4th DCA, May 3, 2017:
Trial court erred by not making an explicit finding as to Husband’s ability to pay alimony and failing to note or address the presumption of permanent alimony in this long term marriage and indicating why it was not awarded. Trial court was directed that if it still ordered conditional alimony the trial court would still need to set forth an alternative alimony option if the condition was not met. Trial court also erred in classifying business shares as non-marital. Husband’s Father converted ownership of his shares in a company to Husband during the marriage. Husband’s Father intended to bequeath the shares to son upon his death, but transferred ownership during life to avoid taxes. Their wish to circumvent foreign tax obligations by placing ownership of the stock in Husband’s name, yet circumvent Florida’s equitable distribution scheme by arguing the assets were actually still Husband’s Father’s was not persuasive. Trial court also erred in ordering that the proceeds from the sale of property would be split after a loan was repaid from the proceeds of the sale. Even though the loan was for the purposes of buying the property, the court could not convert an unsecured creditor to the status of a secured creditor.

Isnord v. Isnord: Fla. 4th DCA, May 3, 2017:
Trial court did not abuse discretion in dismissing paternity action due to petitioner’s failure to serve a petition for paternity within 120 days of filing. While service by publication could be utilized where the whereabouts of the other party are not known, the petitioner did not attempt to do so before the expiration of the 120 day period.


Smith Family Law Update: Week of April 24, 2017

Posted by Roy Smith on Apr 28th 2017

Strawitch v. Strawitch: Fla 1st DCA, April 24, 2017:
Though granting of modification of child support was appropriate, when calculating the amount of father’s resulting overpayment, court erred in accepting father’s counsel’s figure for overpayment without evidence to support it.

Ziruolo v. Ziruolo: Fla 1st DCA, April 28, 2017:
Trial court erred in providing one parent with ultimate decision making authority with regards to health needs, school matters and other activities without providing a basis for this determination. Trial court erred by requiring one party to take on a marital debt due to his higher income. While an inequitable distribution can occur, the court must consider the factors under Florida Statutes 61.075(1)(a)-(j). Trial court also erred by not calculating child support pursuant to child support guidelines. Finally, due to the myriad of errors above, the attorney fee award had to be remanded for additional calculation with guidance that a critical factor for a trial court to consider in awarding fees is the financial situation of the parties after the dissolution proceeding has concluded.

Hanson v. Hanson: Fla 2nd DCA, April 28, 2017:
Trial court erred in basing alimony calculation on Husband’s gross income as opposed to his net income. However, 2nd DCA rejected Husband’s argument that the parties’ lifestyles had been considered inappropriately. Further, trial court did not abuse discretion in including SBP (Survivor Benefit Plan) coverage over and above her coverture amount in calculating her need for alimony. While the court could have determined that this was a voluntary expense incurred by the Wife, it was within the trial court’s discretion to consider the premium as part of Wife’s need. Finally, it was error to order Husband to pay additional attorney’s fees to Wife in addition to that which he already paid temporarily where the parties assets were equally divided and their incomes equalized through the alimony award.

Stephens v. Whittaker: Fla 5th DCA, April 28, 2017:
While it would have been preferred that the trial court explicitly listed the value of the marital home in the final judgment, as opposed to simply dividing the equity in the home, there was no error as calculation was correct. Further, while trial court erred in failing to place a value on the marital liability of the credit cards (and simply stated that the parties would take their respective credit card debt) Wife did not raise said issue on appeal. Finally, trial court did not err in denying alimony and attorney’s fees where the court noted that the parties agreed that there was no need and no ability for ongoing alimony payments or attorney’s fees.


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.