Family Law Updates

The Smith Family Law Florida Case Law Update: Week of April 23, 2018

Posted by Roy Smith on May 08th 2018

Preudhomme v. Preudhomme: Fla 1st DCA, May 3, 2018.

Trial court erred in ruling that timesharing would be rotating (50/50) until the child reached school age at which point the child would be with one parent the majority of the time (as the parents lived in different states).  Such a determination was prohibited prospective-based analysis.  The trial court was ordered to remove the portion of the order relating to the future events (starting of school).

Quillen v. Quillen: Fla 1st DCA, May 3, 2018.

Trial court erred in granting a motion to dismiss former wife’s petition for modification and motion for contempt.  First, it was improper to utilize a motion to dismiss as a vehicle to address the motion for contempt.  Second, there existed a latent ambiguity in the parties’ agreement with regards to alimony and child support set-off to require an evidentiary hearing and parol evidence to resolve the intent of the parties.

Morris v. Morris: Fla 1st DCA, April 30, 2018.

Trial court erred in using the best interest of the child standard to grant temporary custody to step-parent (widower) over father as preference to the natural parents prevails despite the fact third persons are capable and willing to provide better care unless there is sufficient proof to establish parental unfitness or substantial threat of significant and demonstrable harm to the child.  

De La Piedra v. De La Piedra: Fla 1st DCA, April 25, 2018.

Trial court erred in its determination of temporary alimony as there was not sufficient evidence to find an ability to pay.  Further, the temporary child support award did not take into consideration the award of temporary alimony or in-kind alimony.  Finally, the award of temporary attorney’s fees had to be revisited given that the alimony and child support calculations would ultimately impact need and ability to pay.

Overstreet v. Overstreet: Fla 1st DCA, April 25, 2018.  CASE OF FIRST IMPRESSION!!!

Florida Statutes 61.13002(2) which allows a military servicemember to designate a family member to exercise that parent’s time sharing while the servicemember is under temporary assignment orders to relocate away from the child does not apply to permanent change of station.  (1st DCA in case of first impression found that legislature used the term “temporarily assigned” to mean a duty assignment of up to six months away from the member’s permanent duty station that provides for the member’s next duty assignment, whether that be resuming duty at the former PDS, beginning duty at a new PDS, or further temporary duty.). **Note, the court did not need to address the issue of the constitutionality of the statute under the circumstances.



Posted by Roy Smith on Mar 30th 2018

The Smith Family Law Florida Case Law Update: Week of March 26, 2018.


Harris v. Harris: Fla 5th DCA, March 29, 2018:

A party cannot complain of inadequate findings on appeal unless the alleged defect was raised in a motion for rehearing.

Crespo v. Lebron: Fla 5th DCA, March 29, 2018:

While business loss (gross receipts minus ordinary and necessary expenses required to produce income) can be utilized to decrease income for calculation of support it cannot be based on conclusory testimony, but instead, must be established through competent, substantial evidence.

Zarudny v. Zarudny: Fla. 3rd DCA, March 28, 2018:

Trial court properly entered permanent injunction based on domestic violence.  Although separate findings as to each factor in section 61.13(3) are not required to sustain a temporary award of temporary timesharing, the record or the final judgment must reflect that the custody determination was made in the best interest of the child.  Here, the trial court’s award of temporary 100% timesharing with Mother (with supervised timesharing with Father) under the circumstances was supported.



Posted by Roy Smith on Mar 19th 2018

The Smith Family Law Florida Case Law Update: Week of March 12, 2018.


Erlinger v. Federico: Fla 1st DCA, March 15, 2018:

Detailed discussion of disqualification.  Wife’s request for disqualification of judge was properly denied even where court allegedly (1) interrupted cross examination and made comments such as “you do what you want”, (2) loudly sighed and shook head during testimony, (3) interrupted opposing counsel’s questioning of wife to question and comment on testimony of wife.  While a judge may not prejudge a case, a judge can form mental impressions and opinions during an evidentiary hearing.  Subjective fears regarding non-verbal expressions are not grounds for disqualification.  Adverse rulings without more are not legally sufficient grounds for disqualification.

Subramanian v. Subramanian: Fla 4th DCA, March 14, 2018:

While the trial court properly set forth the specific steps the former husband must take to reestablish timesharing and it was within its discretion to condition increased timesharing on the successful completion of parenting course and therapy, the trial court erred in delegating authority to determine visitation to therapists and the guardian ad litem.  Further, court erred in equitably distributing loans/liabilities incurred after the filing of the petition for dissolution.

Lamorte v. Testoni: Fla 4th DCA, March 14, 2018:

While Mother did not preserve the issue of child support continuing for special needs child past the age of majority for purposes of appeal, Mother has not waived this argument as Mother may seek a modification on the basis that Florida Statutes 743.07(2) applies.

Hedden v. Hedden: Fla 5th DCA, March 16, 2018:

Trial court erred in awarding permanent alimony of $1,000.00 a month and durational alimony of $2,700.00 a month until Wife reached age of sixty-two and received Social Security benefits.  While permanent periodic alimony and durational alimony may be awarded together if justified, here it was clear that permanent periodic alimony was justified and court erred in taking into consideration future Social Security benefits as alimony awards must be based on “current existing circumstances, and not on possibilities likely but as of yet unrealized.”

Carter v. Carter: Fla 5th DCA, March 16, 2018:

Former Husband was not entitled to relief from contempt order entered against him as the trial court held a simultaneous evidentiary hearing on Former Wife’s motion for contempt and Former Husband’s motion for temporary reduction or termination of alimony (which contained the same allegations and grounds included in his amended supplemental petition).  While trial court did mention Former Husband’s ability to use credit cards to pay purge amount, the trial court nevertheless did not err as it found that Former Husband had actual assets sufficient to pay the purge amount.  Former Husband’s argument that his due process rights were violated for failure of the notice of hearing to have language from Florida Family Law Rule of Procedure 12.615(b) was rejected as Former Husband attended the hearing and therefore no adverse effects were suffered.