Elbaum v. Elbaum, 37 Fla. L. Weekly D1129 (Fla. 4^th DCA 2012).  Trial Court reversed for requiring husband to secure alimony with life insurance without findings as to availability, cost, obligor’s ability to pay and special circumstances that warrant security.

Franks v. Franks, 37 Fla. L. Weekly D1095 (Fla. 1^st DCA 2012).   Trial Court reversed for granting 36 months of bridge-the-gap alimony.  Statute allows 24 months.

Appeals:

Hentze v. Hentze, 37 Fla. L. Weekly D1054 (Fla. 1^st DCA 2012).  “Law of the case doctrine” does not apply to trial orders.  Only applies to issues decided on appeal.

Attorneys’ Fees:

Giovanini v. Giovanini, 37 Fla. L. Weekly D1153 (Fla. 1^st DCA 2012).  Trial Court reversed for awarding attorneys’ fees without evidentiary hearing and appropriate findings of fact.

Franks v. Franks, 37 Fla. L. Weekly D1095 (Fla. 1^st DCA 2012).  Trial Court’s denial of attorneys’ fees affirmed when former wife only requested fees in pleadings and never asked Court for them at trial.

Robinson v. Robinson, 37 Fla. L. Weekly D1012 (Fla. 5^th DCA 2012).   Award of attorneys’ fees for time expended at trial and appellate levels for litigating parties’ violations of order affirmed.

Domestic Violence:

Ramirez v. Teutsh, 37 Fla. L. Weekly D1194 (Fla. 1^st DCA 2012).  Order summarily denying motion to dissolve DV injunction reversed and remanded for evidentiary hearing.

Enforcement:

Riera v. Riera, 37 Fla. L. Weekly D988 (Fla. 3^rd DCA 2012).  Agreement to pay adult child’s college tuition is NOT child support and therefore, not enforceable by contempt.  Agreement for both parties to equally pay cost of college tuition contained a latent ambiguity as it did not specifically include a private college.  Remanded to determine intent.

Equitable Distribution:

Franks v. Franks, 37 Fla. L. Weekly D1095 (Fla. 1^st DCA 2012).  Trial Court affirmed for directing former husband to name former wife beneficiary of a military Survivor Benefit Plan to protect her award of former husband’s retired Navy pay.  Trial Court has discretion to order a spouse to maintain an annuity for a former spouse under the Survivor Benefit Plan.

Robinson v. Robinson, 37 Fla. L. Weekly D1012 (Fla. 5^th DCA 2012).  Mathematical error resulting in unequal distribution shall be corrected on remand.

Imputation:

Hentze v. Hentze, 37 Fla. L. Weekly D1054 (Fla. 1^st DCA 2012).  Trial Court abused discretion by not imputing income after finding party voluntarily underemployed.

Miscellaneous:

DOR v. Holley, 37 Fla. L. Weekly D1057 (Fla. 1^st DCA 2012).  Mere delay in filing suit insufficient to establish the defense of latches.

Modification:

Mayo v. Mayo, 37 Fla. L. Weekly D118 (Fla. 2^nd DCA 2012).  Trial Court reversed for modifying time sharing schedule without addressing best interests of the children.

Silverman v. Silverman, 37 Fla. L. Weekly D1064 (Fla. 3^rd DCA 2012).  Trial Court erred in granting upward modification of alimony based solely upon reduction in the purchasing power of the dollar.  There must be a showing that the national problem of inflation impacts specifically upon the individual claiming inflation as basis for modification.

Procedure:

In re:  Amendments to Family Law Forms, 37 Fla. L. Weekly S386 (Fla. 2012) Amends many approved forms.

Cole v. Cole, 37 Fla. L. Weekly D1014 (Fla. 5^th DCA 2012).  Trial Court abused its discretion by allowing witness to testify over objection in contravention to Fl. Rule Judicial Admin. Rule 2.530(d)(1).

Relocation:

Tucker v. LiebKnecht, 37 Fla. L. Weekly D1088 (Fla. 5^th DCA 2012).  Trial Court reversed for enjoining wife from relocating 50 driving miles away.  Standard of measurement is straight line, as the crow flies, NOT driving mileage.

Guizzardi v. Guizzardi, 37 Fla. L. Weekly D1061 (Fla. 3^rd DCA 2012).  Trial Court’s order granting petition to relocate was reversed and remanded because there was a clause prohibiting relocation in divorce agreement and the Trial Court did not find a substantial change of circumstances.  Fact Trial Court utilized new relocation statute inappropriately did not deprive court of subject matter jurisdiction.  New law’s provisions encompassed all requirements of previous, properly applicable law.

Support:

Gilbert v. Cole, 37 Fla. L. Weekly D1195 (Fla. 1^st DCA 2012).  Trial Court reversed for not reducing child support after one child emancipated.  Child support is an allocated award and should be reduced retroactively to date of emancipation regardless if modification has been filed.

UCCJEA:

Johnson v. Johnson, 37 Fla. L. Weekly D1105 (Fla. 2^nd DCA 2012).  Trial Court reversed for depriving husband due process by holding UCCJEA hearing with New York judge to determine jurisdiction without providing husband opportunity to participate.  Trial Court further deprived husband due process by granting motion to dismiss without hearing or notice.

O’Shea v. O’Shea, 221 So. 223 (Fla. 4th DCA 1969).  The marriage itself is sufficient consideration for a premarital agreement.

Mulhern v. Mulhern, 446 So. 2d 1124 (Fla. 4th DCA 1984).  Prenuptial Agreements do not differ from other agreements and should be construed and interpreted in the same manner as any other contract.

 Barakat v. Broward County House. Authority, 771 So. 2d 1193 (Fla. 4th DCA 2000).  It is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties or to relieve a party from what turns out to be a bad bargain.

Herpich v. Estate of Herpich, 994 So. 2d 1195 (Fla. 5th DCA 2008).   Prenuptial agreement is subject to interpretation like any other contract.

 Ledea-Genaro v. Genaro, 963 So. 2d 749 (Fla. 4th DCA 2007).  Prenuptial Agreements shall be construed and interpreted in the same manner as other contracts with the court resorting to rules of construction and extrinsic evidence only where the contract language is ambiguous.

Chipman v. Chipman, 975 So. 2d 603 (Fla. 4th DCA 2008).  The trial court’s interpretation of a postnuptial agreement as a matter of law is subject to a de novo standard of review.

 Turchin v. Estate of Turchin, 16 So. 3d 1042 (Fla. 4th DCA 2009). Primary purpose of a prenuptial agreement is to modify or minimize the general discretion of a judge in doing equity between the parties. The agreement itself is intended to define the mutual equities, and the trial judge is not free to ignore its provisions or to render them ineffective.

 Crawford v. Barker, 64 So. 3d 1246 (Fla. 2011).  The standard for review of any marital settlement agreement is de novo, because interpretation of a marital agreement is as a matter of law.

Weymouth v. Weymouth, 37 Fla.L.Weekly D850 (Fla. 4th DCA 2012).  Trial Court affirmed for triggering penalty clause in prenuptial agreement based upon circumstantial evidence.  Because adultery usually takes place in secret or seclusion, proof in most cases is by circumstantial evidence, through showing desire by mutual affection, coupled with circumstances that would lead to a reasonable person would conclude adultery occurred.

Challenges to Validity:

*** Casto v. Casto, 508 So. 2d 330 (Fla. 1987).

There are two methods to challenge the validity of prenuptial and postnuptial agreements:

Direct Method: An agreement may be set aside or modified upon establishing that it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching.

Indirect Method: The challenging spouse must establish that the Agreement makes an unfair or unreasonable provision for that spouse, given the circumstances of the parties. Once unfairness is established, a presumption arises that there was either concealment or a presumed lack of knowledge of the defending spouse’s finances at the time the agreement was reached. The burden then shifts to the defending spouse. The presumption can be rebutted upon a showing that:

1.  the defending spouse made full, frank financial disclosure; or
2. the challenging spouse had a general knowledge of the character and extent of the other party’s assets and income.

The test in this regard is 1) the adequacy of the challenging spouse’s knowledge at the time of the agreement; and 2) whether the challenging spouse was prejudiced by the lack of information.

Grounds that are NOT sufficient to overturn an agreement:

1. A bad bargain, by itself, is not sufficient grounds to set an agreement aside;
2. A bad fiscal bargain that appears unreasonable can still be knowledgably entered into for reasons other than insufficient knowledge of assets and income; if an agreement that is unreasonable is nonetheless freely entered into, it is still enforceable; and
3. Lack of competent assistance of counsel is no basis to vacate an agreement.

Casey v. Cohen, 740 So. 2d 59 (Fla. 4th DCA 1999).  Where a party challenges that an agreement should be set aside due to fraud or misrepresentation, that party must demonstrate that the misrepresentation or concealed fact is material to the transaction.

Francavilla v. Francavilla, 969 So. 2d 522 (Fla. 4th DCA 2007), Establishes factors necessary to establish duress. It held that in order to set aside a prenuptial agreement based on duress:

1.         The agreement sought to be set aside had to be effected involuntarily and not as an exercise of free choice or will; and

2.         That this condition of mind was caused by some improper or coercive conduct of the other spouse. A spouse’s ultimatum that the marriage would not occur without a prenuptial agreement being signed does not constitute duress, because there is nothing improper about taking such a position.   Being seven months pregnant on the day of the wedding, the time the agreement was signed does not constitute duress.

Tanner v. Tanner, 975 So. 2d 1190 (Fla. 1st DCA 2008).  No overreaching found.  Facts supported nothing other than the Wife’s buyer’s remorse.

Waton v. Waton, 887 So. 2d 419 (Fla. 4th DCA 2004), Disclosure of ownership in insurance company with no value listed sufficient to give the Wife a general knowledge of the Husband’s assets, particularly when the Wife never sought clarification or requested any additional information.

Gordon v. Gordon, 25 So. 3d 615 (Fla. 4th DCA 2009).  Agreement upheld when Husband did not disclose airline pension.  The Husband had disclosed substantial assets, and the undisclosed pension plan constituted only a small fraction of his net worth.

 Uniform Premarital Agreement Act:

§61.079, Florida Statues:

1.   Requires a premarital agreement be in writing and signed by both parties.

2.   Allows the parties to address all substantive rights in the agreement.

3.   Provides that after marriage, a premarital agreement may only be amended, revoked or abandoned by a written agreement signed by both parties.

4.   Identifies the basis under which a premarital agreement is not enforceable:

The party did not execute the agreement voluntarily;

a)      The agreement was the product of fraud, duress, coercion, or overreaching;

b)      The agreement was unconscionable when it was executed and before execution of the agreement the complaining party:

(i)                 was not provided a fair and reasonable disclosure of the property or financial obligations of the other party,

(ii)               did not voluntarily and expressly waive in writing any right to disclosure of the property or financial obligations of the other party beyond the disclosure provided; and

(iii)             did not have or reasonably could not have had an adequate knowledge of the property or financial obligations of the other party.

Unenforceable Agreements:

McNamara v. McNamara, 40 So. 3d 78 (Fla. 5th DCA 2010). A contract is not void, as against public policy, unless it is injurious to the interest of the public, or contravenes some established interest in society

 Hoffman v. Boyd, 698 So. 2d 346 (Fla. 4th DCA 1997).  A married man’s written agreement to support a woman indefinitely if he did not marry her within a specified period of time was void and unenforceable based upon public policy and Florida Statutes.

Feliciano v. Feliciano, 674 So. 2d 937 (Fla. 4th DCA 1996). Casto, however, is not dispositive on child support, custody, and visitation, and a trial court may still set an agreement aside in regard to those issues if the agreement is not in the best interest of the children.

§61.079(4)(b), Florida Statutes. The right of a child to support may not be adversely affected by a premarital agreement.

§741.212, Florida Statutes.  Marriages between persons of the same sex states that  marriages between persons of the same sex entered into in any jurisdiction, whether within or outside the State of Florida, the United States, or any other jurisdiction, either domestic or foreign, or any other place or location, or relationships between persons of the same sex which are treated as marriages in any jurisdiction, whether within or outside the State of Florida, the United States or any other jurisdiction, either domestic or foreign, or any other place or location, are not recognized for any purpose in this state

 Temporary Support:

 Aguilar v. Montero, 992 So. 2d 872 (Fla. 3d DCA 2008).  Notwithstanding language in the prenuptial agreement to the contrary, the Wife was entitled to temporary support.

Belcher v. Belcher, 271 So. 2d 7 (Fla. 1972).  It is against the public policy to enforce any provisions waiving temporary support.

Lord v. Lord, 993 So. 2d 562, (Fla. 4th DCA 2008).  A provision in a premarital agreement that waives each party’s claim for attorney’s fees and costs cannot be applied to preclude an award of temporary attorney’s fees.

Higginbotham v. Higginbotham, 52 So. 3d 806 (Fla. 3d DCA 2011).  Wife was not limited to $5,000 cap on attorney’s fees as set forth in the parties’ prenuptial agreement, however, temporary fee award of $305,640.00 was excessive.

Attorneys’ Fees:

 Lashkajani v. Lashkajani, 911 So. 2d 1154 (Fla. 2005).  Provisions in prenuptial agreements that award attorney’s fees to the prevailing party in any action to enforce the agreement are enforceable.

Appreciation:

Worley v. Worley, 855 So. 2d 632 (Fla. 2d DCA 2003).  Agreement that provided in part “any property, either real or personal, acquired by either prospective spouse, before or after their marriage, shall be the separate property of the party owning or obtaining the property and the other party shall make no claim…” The court found that the agreement did not operate to waive the active appreciation.

Witowski v. Witowski, 758 So. 2d 1181 (Fla. 2d DCA 2000).  Husband had a vested interest in an United States Postal Service Retirement Fund, which he had fully disclosed. The prenuptial agreement provided that the Husband would retain all right, title and interest in and possession of whatever assets listed above which he may still own at the time of such dissolution of marriage. The court found that without a specific provision waiving the Husband’s salary, which in turn funded his retirement fund, the appreciation in the Husband’s retirement fund was marital subject to division.

Irwin v. Irwin, 857 So. 2d 247 (Fla. 2d DCA 2003).  The release of marital rights affected any property owned by Husband at any time, whether such property is acquired or held prior to or during the marriage, or whether held in his name alone or in both of their names, jointly or as tenants in common.  Agreement did not specifically waive Husband’s active appreciation.

Valdes v. Valdes, 894 So. 2d 264 (Fla. 3d DCA 2004).  Agreement was silent as to the enhanced value of non-marital properties and did not prevent Wife from seeking equitable distribution of the enhanced value of non-marital properties.

Doig v. Doig, 787 So. 2d 100 (Fla. 2d DCA 2001).  Agreement which stated “neither party shall make any claim or acquire any interest in the other party’s separate property if it increases in value during the marriage” only protects passive appreciation.  Appreciation resulting from marital labor was not protected.

Thanks again for subscribing!

-eddie stephens

Featherston v. Featherston, 37 Fla.L.Weekly D944 (Fla. 2nd DCA 2012).  Trial Court abused discretion by not awarding retroactive alimony because Wife had a non-marital asset available to her.

Galstyan v. Galstyan, 37 Fla.L.WeeklyD916 (Fla. 4th DCA 2012).  Trial Court reversed for awarding $5,000 per month in alimony to Wife without findings as to Husband’s ability to pay.  Trial Court also erred by setting arrearage payment without finding, as to ability, and requiring Husband to secure alimony with both life insurance and a bond.

Walker v. Walker, 37 Fla.L.Weekly D872 (Fla. 1st DCA 2012).  Trial Court reversed for awarding permanent alimony with no findings as to Wife’s needs.

Discovery:

White v. White, 37 Fla.L.Weekly D786 (Fla. 4th DCA 2012).  Order determining Wife waived attorney client privilege because her daughter and son in law attended 65% of attorney conferences reversed because disclosure to third parties was reasonably necessary for the transmission of communication.  Wife was 74, had short term memory loss, glaucoma, and could not read Hebrew (language financial documents were in).

Bushong v. Peel, 37 Fla.L.Weekly D726 (Fla. 2nd DCA 2012).  Trial Court’s order quashing Husband’s discovery requested target at marital business reversed as the records were needed to fashion equitable distribution.

Domestic Violence:

Shawver v. Scarvelli, 37 Fla.L.Weekly D807 (Fla. 5th DCA 2012).  Trial Court erred in entering injunction against repeat violence when only one act of violence was alleged and proven.

Enforcement:

Fernandes v. Fernandes, 37Fla.L.Weekly D931 (Fla. 5th DCA 2012).  Trial Court’s order of contempt reversed when final judgment failed to reference or incorporate mediated settlement agreement.  For a person to be held in contempt language must be clear and precise and conduct must clearly violate order.

Rojo v. Rojo, 37 Fla.L.Weekly D899 (Fla. 3rd DCA 2012).  Order holding Mother in contempt because child would not travel to Mexico to see Father and imposing $100 per day fine reversed when child became hysterical and refused to board plane and no findings to support economic sanction.

Ramirez v. Ramirez, 37 Fla.L.Weekly D787 (Fla. 4th DCA 2012).  Trial Court reversed for incarcerating Husband for failing to pay temporary support when order contained no findings of present ability or willfulness of act.

Equitable Distribution:

Kumar v. Kumar, 37 Fla.L.Weekly D725 (Fla. 2nd DCA 2012).  Error for Trial Court to defer equitable distribution until after mediation in final judgment.  Failure not to distribute all marital assets is error.  Trial Court also erred valuing CD’s at time of filing and not accounting for passive appreciation during pendency.  If Husband was a mere employee, he would not be entitled.  Standard of review is whether Trial Court departed from essential requirements of law and caused material injury leaving inadequate remedy on appeal.

Exceptions:

Ward v. Dones, 2012 WL 1315511 (Fla. 3rd DCA 2012).  Trial Court reversed for granting exceptions when evidence supported Magistrate’s report.  Here Trial Court reweighed evidence to make different findings as opposed to determining whether findings were based on substantial evidence.

Miscellaneous:

DOR v. Ortiz, 37 Fla.L.Weekly D854 (Fla. 4th DCA 2012).  Trial Court erred in vacating foreign support judgment registered in Florida that is more than a year old.

Modification:

Acosta v. Renta, 37 Fla.L.Weekly D829 (Fla. 3rd DCA 2012).  Trial Court reversed for granting Former Husband’s petition to reduce alimony to $1 but holding Former Husband in contempt for not paying full amount during pendency of action with no explanation of reasoning.

Hartman v. Hartman, 37 Fla.L.Weekly D785 (Fla. 4th DCA 2012).  Contempt order that modified Father’s responsibility towards child’s college expenses reversed because no modification action was pending.

Parenting:

J.R.B. v. J.L.B., 37 Fla.L.Weekly D845 (Fla. 4th DCA 2012).  Trial Court reversed for granting grandparents custody pursuant to Chapter 751, Florida Statutes when petition was filed while children were visiting grandparents under Court order, as opposed to residing with them.

A.L.G. v. J.F.D., 2012 WL 1109026 (Fla. 2^nd DCA 2012)  Paternity parental plan that rotated 2 year old child across the country every 6 weeks reversed as it was inconsistent with Court’s oral pronouncements that child’s best interest was to spend majority of time with Mother, and rotating custody was not in child’s best interest.

Munroe v. Olibrice, 37 Fla.L.Weekly D740 (Fla. 4th DCA 2012).  Trial Court erred in ordering visitation without a parenting plan and failing to address parental responsibility.

Paternity:

J.T.J. v, N.H., 37 Fla.L.Weekly D791 (Fla. 4th DCA 2012).  Trial Court reversed for dismissing paternity filed by biological Father when child born into intact marriage, Father surrendered rights to DCF, and Mother did not object.  Presumption of legitimacy may be overcome with clear and compelling reason based on best interests of child.

Prenuptial Agreements:

Weymouth v. Weymouth, 37 Fla.L.Weekly D850 (Fla. 4th DCA 2012).  Trial Court affirmed for triggering penalty clause in prenuptial agreement based upon circumstantial evidence.  Because adultery usually takes place in secret or seclusion, proof in most cases is by circumstantial evidence, through showing desire by mutual affection, coupled with circumstances that would lead to a reasonable person would conclude adultery occurred.   Wife did not waive appreciation in non-marital assets, but remanded as Court failed to follow Kaa in determining marital enhancement.

Relocation:

Alinat v. Curtis, 37 Fla.L.Weekly D939 (Fla. 2nd DCA 2012).  Trial Court erred as a matter of law in granting temporary relocation for three years.  Temporary orders are preliminary short term orders and final hearing should occur within 90 days of notice.

Support:

Warren v. Warren, 37 Fla.L.Weekly D820 (Fla. 2nd DCA 2012).  Order of support reversed when parties agreed calculation was based on evidence not before the Court.

Quinones v. Quinones, 37 Fla.L.Weekly D699 (Fla. 3rd DCA 2012).  Award of permanent alimony of $14,135 per month in 21 year marriage reversed when Wife had needs of $28,000 and Husband had net income of $58,000 per month.  Trial Court cannot consider Husband’s contributions to adult son in determining alimony.

Bryne v. Bryne, 37 Fla.L.Weekly D688 (Fla. 3rd DCA 2012).  Award of permanent alimony to Husband in 9 year marriage when Husband became disabled during marriage reversed when Trial Court failed to consider each spouse’s pre dissolution income, addition income received by Husband, and Wife’s drastic reduction in income.

Rucker v. Rucker, 82 So.3d 189 (Fla. 1st DCA 2012).  Trial Court’s award of 18 months bridge the gap alimony reversed and remanded when Court miscalculated parties income and failed to take into consideration Wife’s significant contributions to the marriage.

Gulledge v. Gulledge, 82 So.3d 1113  (Fla. 2nd DCA 2012).  Trial Court reversed for not awarding Husband at least nominal alimony in a 30 year marriage where Wife earned around $60,000 and evidence suggested Husband earned $6,000 per year but was voluntarily underemployed.

Agreements:

Simon v. Simon, 37 Fla.L.Weekly D582 (Fla. 4th DCA 2012).  Trial Court reversed for limiting Wife’s claim for temporary relief based on terms of prenuptial agreement.  Until a marriage is dissolved, support cannot be waived by agreement.

Macleod v. Macleod, 82 So.3d 147 (Fla. 4th DCA 2012).  Judge Oftedal reversed for classifying Nova Scotia cottage as marital when post-marital agreement provided any assets obtained by gift or from non-marital funds so long as they were not converted into tangible assets and used by Husband and Wife.  Here, the property was used, but never converted.  Remanded to determine amount of marital enhancement due to paying taxes and improvements from marital sources.

Attorneys’ Fees:

Lamolinara v. Lamolinara, 37 Fla.L.Weekly D721 (Fla. 1st DCA 2012).  Trial Court should not deny Former Wife’s request for appellate fees because her appeal was without merit as opposed to  frivolous.

Colado v. Caryi, 37 Fla.L.Weekly D647 (Fla. 5th DCA 2012).  Order awarding Husband attorney’s fees for vexatious, unnecessary litigation reversed when there was no evidence Wife engaged in vexatious or unnecessary litigation.

Halloc v. Halloc, 37 Fla.L.Weekly D517 (Fla. 4th DCA 2012).  Judge Diana Lewis reversed for assessing attorneys’ fees against the Wife because the refusal to settle the case in and of itself cannot be a basis.  There must be vexatious conduct or bad faith litigation which was not present in this case.  Trial Court affirmed for awarding reduced fees to Wife for her failure to accept reasonable settlement.  The Trial Court can use results obtained, vexatious litigation, harassment, or other bad faith type conduct to deny attorney’s fees to a spouse otherwise entitled to fees based upon need and ability to pay.

Gulledge v. Gulledge, 82 So.3d 1113 (Fla. 2nd DCA 2012).  Trial Court reversed for not addressing or reserving jurisdiction on Husband’s properly pled request for attorneys’ fees.

Routh v. Thompson, 82 So.3d 157 (Fla. 2nd DCA 2012).  Order awarding attorneys’ fees reversed where Court found Wife owed her attorney $60,000, Husband failed to make Court ordered alimony payments, and Husband’s financial affidavit reflected $4,027 in income.  Order failed to make findings as to Wife’s needs, Husband’s source of income, reasonableness of hours expended, and rate.

Domestic Violence:

Berthiaume v. B.S., 37 Fla.L.Weekly D609 (Fla. 1st DCA 2012).  Final injunction against sexual violence affirmed when based upon parent’s verified petition that she had reasonable cause to believe child had been victim of sexual violence.

C.S. v. T.S.P., 82 So.3d 1132 (Fla. 2nd DCA 2012).  Injunction against dating violence reversed when no threat or act of physical violence.  Girlfriend’s feeling she was being stalked and boyfriend’s single appearance on her porch did not suffice.

Enforcement:

Parris v. Silveira, 82 So.3d 201  (Fla. 4th DCA 2012).  Order holding mother in civil contempt because the Court believed she had lied was reversed because contempt was not based upon the violation of a preexisting order.

Equitable Distribution:

Bryne v. Bryne, 37 Fla.L.Weekly D688 (Fla. 3rd DCA 2012).  Trial Court erred in awarding marital residence to Wife with negative equity and otherwise equitable distributing assets and liabilities.  Remanded for Court to explain why unequal award was justified.

Swergold v. Swergold, 82 So.3d 1148 (Fla. 4th DCA 2012).  Judgment requiring Husband to pay expenses on property, but denying him credits at time of sale remanded for explanation.

Preudhomme v. Bailey, 82 So.3d 138 (Fla. 4th DCA 2012).  Error for Trial Court to make determination as to whether Jamaican property is marital or not.  Matter remanded for Court to determine if property was acquired by gift or purchase.  Court should not require parties to litigate matter in Jamaica.

Exclusive Use and Possession:

Gulledge v. Gulledge, 82 So.3d 1113 (Fla. 2nd DCA 2012).  Trial Court reversed for awarding exclusive use and possession and not including a date in which refinancing or sale must occur.

Phillips v. Phillips, 37 Fla.L.Weekly D496 (Fla. 2nd DCA 2012).  Trial Court affirmed for awarding exclusive use and possession of marital home to Wife until minor child with special needs 18^th birthday.  Trial Court affirmed for requiring Husband to pay one-half of mortgage because he had an equity interest.

Modification:

Morrell v. Morrell, 37 Fla.L.Weekly D621 (Fla. 2nd DCA 2012).  Trial Court erred in denying Former Husband’s petition for modification to reduce his obligation based on the fact the Former Husband was in a supportive relationship.  Supportive relationship refers to payee’s relationship, not payor’s.

Gentry v. Morgan, 37 Fla.L.Weekly D559 (Fla. 3rd DCA 2012).  Trial Court reversed for vacating agreement and judgment establishing support.  When the Trial Court has approved the parents’ agreement, including its child support provision, and finds it to be at of that moment in the best interest of the child, any later modification must be predicated on a substantial change of circumstances.

King v. King, 82 So.3d 1124 (Fla. 2nd DCA 2012).  Trial Court reversed for modifying alimony based on supportive relationship that existed prior to parties divorce and original determination of alimony.  Lengthy opinion on support relationships.

Walker v. Walker, 80 So.3d 1128 (Fla. 4th DCA 2012).  Trial Court reversed for dismissing a petition to convert rehabilitative alimony to permanent alimony and modify amount.

Parenting:

Slover v. Meyer, 80 So.3d 453 (Fla. 2nd DCA 2012).  When the custody dispute is between a natural parent and a third party custody should be denied to the parent only when granting custody to natural parent will be detrimental to the welfare of the child.

Preudhomme v. Bailey, 82 So.3d 138 (Fla. 4th DCA 2012).  Judge Goldenberg reversed for entering final judgment in a “toxic” case that awarded four hours of supervised visitation to the Wife because her actions “were out of control” and restricted the Wife from filing a modification until she completed 52 weeks of individual therapy, 26 weeks of joint therapy with children, five lessons on child discipline, 2 eight week courses of parental effectiveness.  There was no evidence to support specific time restrictions on the Wife’s ability to seek modification, which severely impacted her ability to parent.

Paternity:

J.C.J. v. DOR, 80 So.3d 1106 (Fla. 2nd 2012).  Trial Court reversed for denying petition for disestablishing because father’s DNA test was obtained more than 90 days before filing.  In this case, Father swore he did not have access to child at that time.  Section 742.18(1)(b).

Procedure:

In re: Fl.S.C. Approved Family Law Forms, 37 Fla.L.Weekly DS230 (Fla. 2012).  Amends forms; order granting petition for temporary custody by an extended family member, 12.970(e) and order granting petition for concurrent custody by an existing family member, 12.970(f).

Dolan v. Dolan, 81 So.3d 558 (Fla. 3rd DCA 2012).  Trial Court reversed for dismissing petition for modification for failure to obtain personal service.  The Former Wife waived that defense when she made an appearance and filed a responsive pleading and did not raise the issue of service.

Support:

Williams v. Lutrario, 81 So.3d 589 (Fla. 4th DCA 2012).  Support order reversed that awarded Father IRS deduction in odd years but failed to provide Mother was required to execute waiver only if Father was current in payments.

“Glitch, what glitch?”

“Really”; Lane insisted, “I have heard there was a problem and I see It messes up the number when you have less than 30% visitation”.

“Huh?”

“Want me to prove it to you?”, she said with that Lane Matthews I know something you don’t Eddie grin on.

“OK, prove it”

Within seconds she had her laptop out inputting variables.  All of the sudden, I heard her briefcase come to life and start printing different child support scenarios.

“Look right here”, she said, grinning wider than ever!

And you know what?  She was right.

She proved to me that a recipient who had the children 80% of overnights received more child support then the same person who had 100% overnights.

I ran the same numbers on different software and confirmed the result.

Have you run into this issue?  Is it a glitch or are we overlooking something?  I would appreciate your thoughts.

eddie@eddiestephens.com

If you actually wanted to buy the book, you can get it for 50% off  here.

If you prefer reading on your Kindle, the same materials are available in that format and can be ordered here.

If you would like the Squibs from just the past year (2011), you can download those for free here.

Keep in mind all of these materials are available for free on this website.  However, several people have commented having the hard back near their desk has been a handy reference.

100% proceeds from any sales will be donated  to Big Dog Ranch Rescue & Safe Harbor Animal Sanctuary and Hospital!

Justice v. Justice, 80 So.3d 405 (Fla. 1st DCA 2012).  Award of permanent alimony in 11 year marriage reversed when judgment lacked findings of need and explanation why permanent alimony was necessary in a grey-area marriage.

Melton v. Melton, 79 So.3d 154 (Fla. 2nd DCA 2012).  Trial court’s award of alimony reversed when trial court deducted voluntary contributions to retirement from husband’s net income for purposes of determining his ability.

Crick v. Crick, 78 So.3d 696 (Fla. 2nd DCA 2012).  Award of bridge the gap alimony of $2,000 per month for 24 months reversed and remanded when trial court failed to make findings of fact as to need and ability.  Bridge the gap alimony may be awarded to assist a party by providing support to allow the party to make a transition from being married to single.  It is designed to assist a party with legitimate identifiable short-term needs and is not modifiable in amount or duration.

Agreements:

Stoothoff v. Hobdy, 79 So.3d 198 (Fla. 5th DCA 2012).  Trial court erred in concluding parties reached a binding verbal agreement on timesharing when there was no written executed parenting plan.

Appeals:

Garcia-Lawson v. Lawson, 82 So.3d 137  (Fla. 4th DCA 2012).  Final judgment entered while interlocutory appeal was pending reversed and remanded for re-entry now that appeal has been dismissed as frivolous.

Peterson v. Peterson, 37 Fla.L.Weekly D270 (Fla. 2nd DCA 2012).  Appeal of non-final order dismissed as premature.  An order that purports to be a final judgment of dissolution but fails to dispose of integrally related issues is non-final.

Attorneys’ Fees:

Dinardo v. Dinardo, 82 So.3d 1102 (Fla. 2nd DCA 2012).   Order denying fees reversed when trial court failed to include bonus income in analysis.  Good discussion of bonus income.

Riveiro v. Mason, 82 So.3d 1094 (Fla. 2nd DCA 2012).  Good discussion of charging liens.  There is no statutory guide to how to perfect charging lien.    Rather, requirements developed by case law.  1) There must be a contract between attorney and client (express or implied); 2) there must be an understanding (express or implied) payment is dependent upon recovery or will come from recovery; and 3) remedy available where there is an attempt to avoid payment or where there is a dispute as to amount.  In order to attach to real property there must be an agreement that fee protected by charging lien against real property.

Crick v. Crick,78 So.3d 696 (Fla. 2nd DCA 2012).   Award of attorneys’ fees reversed and remanded when trial court failed to consider financial resources of the parties as affected by the final judgment.

Domestic Violence:

Achurra v. Achurra, 80 So.3d 1080 (Fla. 1st DCA 2012).  Domestic Violence injunction was not reversed when court tool judicial notice of divorce proceedings outside of domestic violence file because pro-se respondent did not object.   Domestic Violence injunction was not reversed when it lacked findings of fact and respondent failed to seek rehearing.  Domestic violence injunction reversed where record lacked substantial competent evidence to support injunction.

Barile v. Gayheart, 80 So.3d 1085 (Fla. 2nd DCA 2012).  Injunction against domestic violence reversed when originated from a petition for injunction.  Due process violated.

Enforcement:

Drdek v. Drdek, 79 So.3d 216  (Fla. 4th DCA 2012).  Order adopting magistrates’ report  reversed when report corrected errors of law of a previous order entered by circuit judge adopting a different magistrates’ report.  “Law of the Case Doctrine” does not apply as previous order was not appealed.

Norberg v. Norberg, 79 So.3d 887 (Fla. 4th DCA 2012).  Trial court’s order on contempt was not reversed even though there was no finding as to ability because incarceration was not sought.  Trial court’s order on contempt was not reversed even though court accepted former husband’s verbal testimony about amount paid.  Former wife chose not to attend hearing and could have challenged testimony.  Order on contempt reversed when record lacked substantial competent evidence of an intentional violation.

Sauriol v. Sauriol, 79 So.3d 204 (Fla. 2nd DCA 2012).  Order on civil contempt for violating domestic violence injunction reversed when remedy was designed to punish as opposed to coerce compliance.

Leo v. Leo, 79 So.3d 188 (Fla. 4th DCA 2012).  Order of contempt reversed where wife not afforded evidentiary hearing or opportunity to be heard.  While relevant evidence may have been presented during dissolution proceedings, party still entitled to present evidence in context of contempt hearing.

Equitable Distribution:

Toral v. Toral, 79 So.3d 153 (Fla. 3rd DCA 2012).  Trial Court affirmed for concluding fund was marital when that had been commingled and given to other’s spouse’s parent to invest at higher interest rate.  Moving party failed to prove no gift was intended.

Exclusive Use:

Fisher v. Fisher, 78 So.3d 100 (Fla. 4th DCA 2012).  Award of exclusive use and possession of marital residence until child’s emancipation reversed when it did not provide for termination upon occupants remarriage.

Parenting:

Justice v. Justice, 80 So.3d 405 (Fla. 1st DCA 2012).  Final judgment containing inconsistencies for timesharing reversed.

Procedure:

Knowles v. Knowles, 79 So.3d 870 (Fla. 4th DCA 2012).  Order denying modification reversed due to erroneous legal conclusion.  Parties married and divorced twice.  In 2007 a modification order was entered but filed in first case be error.  Court erred in concluding 2006 final judgment superseded 2007 modification order filed in wrong case.

King v. King, 78 So.3d 689 (Fla. 2nd DCA 2012).  Trial court’s denial of motion to dismiss because erroneous belief it had lost jurisdiction and moving party was limited to civil contract action reversed.

Support:

CJE v. SDA, 79 So.3d 229 (Fla. 2nd DCA 2012).  Paternity order establishing support reversed when day care costs were not included in calculation.  Error was on face of order so no transcript needed.

Case No. 2D10-4122

DISTRICT COURT OF APPEAL OF FLORIDA SECOND DISTRICT

Opinion filed February 1, 2012

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARINGMOTION AND, IF FILED, DETERMINEDAppeal from the Circuit Court for Hillsborough County; Samantha L. Ward, Judge.

Virginia R. Vetter, Tampa, for Appellant.

Rose M. Marsh of Rose M. Marsh, P.A., and J. Cheney Mason of J. Cheney Mason, P.A., Orlando, for Appellees.

CASANUEVA, Judge.

This appeal arises from a proceeding ancillary to the dissolution action of the marriage between William R. Riveiro and Kirsten L.Riveiro. Mrs. Riveiro appeals the trial court’s order finding that the two law firms she hired, appellees J. Cheney Mason, P.A., and Rose M. Marsh, P.A. (hereinafter Mr. Mason and Ms. Marsh), were

Page 2

entitled to a charging lien of $76,357.61 plus prejudgment interest. The trial court ordered that the charging lien attach to Mrs. Riveiro’s interest on any and all real and personal property she owned relating to assets obtained or subject to the dissolution proceeding, whether she held the asset individually or jointly with any other person. We affirm in part and reverse in part.

Facts        In November 2008 Mrs. Riveiro executed a contract to retain the services of Mr. Cheney and Ms. Marsh in the dissolution of marriage action that Mr. Riveiro instituted. The agreed hourly rate was $400 for each attorney. The contract contained language that her counsel would aggressively pursue every aspect of seeking reimbursement or payment of her fees from Mr. Riveiro, if circumstances allowed. In addition to the $30,000 nonrefundable retainer, Mrs. Riveiro subsequently paid her two counsel substantial amounts for services rendered. In June 2009 Mr. Mason and Ms. Marsh filed a notice of a claim of attorneys’ charging lien, seeking a lien in the amount of $36,750.87 for fees owing and unpaid to that date, plus interest. The attorneys’ fees continued to mount, and in early September 2009, Mrs. Riveiro met with her husband— without either Mr. Mason or Ms. Marsh being present—and they reached a settlement agreement. In addition to deciding the amount of alimony that Mr. Riveiro would pay, the couple decided which portions of the marital real estate and personal property each would receive. The agreement also contained a provision that Mrs. Riveiro would not seek attorneys’ fees from Mr. Riveiro. A few days later, the trial court entered the final judgment of dissolution, incorporated the couple’s settlement agreement that equitably divided their real estate and personal property, and reserved jurisdiction to adjudicate

Page 3

Mr. Mason’s and Ms. Marsh’s claims of charging lien. After an evidentiary hearing in May 2010, the trial court found in favor of Mr. Masonand Ms. Marsh and ordered that a charging lien of the principal amount of $76,357.61 attach to the assets Mrs. Riveiro received in the final judgment of dissolution. As of May 31, 2010, the total amount including interest was $80,851.65. The trial court ordered that the principal amount continue to accrue interest at the statutory rate until paid. It is from this order that Mrs. Riveiro appeals.

Analysis        The law of charging liens has differing applications to real and personal property, both of which are at issue here. Our supreme court observed over a half century ago “that when a litigant contracts with an attorney to litigate a cause and pay him a percentage of the recovery for his fee, he is entitled to a lien on the judgment therefor.” Miller v. Scobie, 11 So. 2d 892, 894 (Fla. 1943). In Miller, the plaintiff/appellant had employed a firm to bring an action against a defendant for breach of promise, agreeing to pay the firm fifty percent of all sums recovered. The plaintiff met secretly with the defendant and settled their differences out of court, with the defendant agreeing to pay the plaintiff over $8000. In holding that the firm could prosecute the case further to obtain remuneration under their contract for fees, the supreme court noted:

We do not deny the right of litigants to settle controversies out of court but any such settlement without the knowledge of or notice to counsel and the payment of their fees is a fraud on them whether there was an intent to do so or not. It has been said that honor may exist among thieves. When honor and good faith cease to be the very bed rock on which the law practice is anchored, the right of litigants will then

Page 4

cease to be actuated by right and justice and will turn on the practice of tricks and feats of legerdemain.

Id.

In the context of an action for dissolution of marriage, our supreme court reaffirmed this commitment in Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So. 2d 1383 (Fla. 1983). There, the petitioner, the Sinclair, Louis law firm, expressly contracted with Ruby Baucom to represent her in a dissolution proceeding against Phillip Baucom. After several years of dispute, the Baucoms met privately, without attorneys, and agreed to a settlement that included a provision that Mrs. Baucom be responsible for her own professional expenses, including attorneys’ fees, incident to their several disputes. Later, the law firm advised Mrs. Baucom not to sign the settlement agreement but sign it she did. Despite her counsel’s advice that the settlement agreement was more disadvantageous to her than she realized, Mrs. Baucom insisted on abiding by its terms. The law firm then orally and in writing gave notice of its intent to enforce a charging lien to secure payment of its fees and to continue litigation against Mr. Baucom for payment of those fees. Id. at 1384. The trial court denied the law firm’s claim to enforce its charging lien and the Third District affirmed. Baucom v. Baucom, 397 So. 2d 347 (Fla. 3d DCA 1981). Ultimately, the supreme court disagreed and quashed the Third District’s opinion insofar as it denied enforcement of the charging lien against Mrs. Baucom. 428 So. 2d at 1386.

The supreme court reiterated that a “charging lien is an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit. It serves to protect the rights of the attorney.” Id. at 1384 (citing Worley v. Phillips, 264 So. 2d 42 (Fla. 2d DCA 1972)). But

Page 5

there is no statutory guide to how to perfect a charging lien. Id. ”Rather, the requirements have developed in case law which has delineated the equitable nature of the lien.” Id. at 1384-85. The court then proceeded to identify the requirements for a charging lien. First, there must be a contract between the attorney and the client, either express or implied. Id. at 1385. Second, “[t]here must also be an understanding, express or implied, between the parties that the payment is either dependent upon recovery or that payment will come from the recovery.”Id. In Mrs. Baucom’s case, the “nature of the litigation involved and the relief sought in the suit between [Mrs. Baucom] and [her husband] evidence[d] a reasonable understanding that payment would either take the form of an award for attorneys’ fees against [Mr. Baucom] or be paid from [Mrs. Baucom's] award.” Id. ”Finally, the remedy is available where there has been an attempt to avoid the payment of fees” or where there is “a dispute as to the amount involved.” Id.

Unfortunately, neither the Third District’s opinion nor the supreme court’s opinion in Baucom describes what assets Mrs. Baucom received in the dissolution action from which she could pay the law firm’s fees. However, given the context of a marriage dissolution action, where the client receives property in equitable distribution, there is a reasonable understanding that such property will be the source of funds to pay the client’s attorney’s fees insomuch as it was the attorney’s efforts that secured that property. See Worley, 264 So. 2d at 43 (“The creation of a charging lien upon the proceeds of any recovery by the client in an equity action is an acceptable method of providing security for the payment of the attorney’s fee.”). But, as will be seen below, there is a distinction as to which property a charging lien can attach.

Page 6

We turn next to the distinction crafted between a charging lien on real property as compared to one on personal property. This court, in Lochner v. Monaco, Cardillo & Keith, P.A., 551 So. 2d 581 (Fla. 2d DCA 1989), identified the distinction thusly:

This court has previously held that a charging lien in a divorce proceeding can be established against personal property without pleading or proving an agreement between the attorney and the client on that subject. Conroy v. Conroy, 392 So. 2d 934 (Fla. 2d DCA 1980), rev. den., 399 So. 2d 1141 (Fla. 1981). In Conroy, however, we expressly declined to extend this rule to real property. Id. at 937. Just as we found “little to commend” such a rule then, we find little to commend it now. The [T]hird [D]istrict has suggested that an attorney would be “well advised to provide for a lien on such property in the fee agreement with his client.”Litman v. Fine, Jacobson, Schwartz, Nash, Block & England, P.A., 517 So. 2d 88, 91 n.5 (Fla. 3d DCA 1987), rev. den., 525 So. 2d 879 (Fla. 1988). Such an express agreement avoids any confusion upon the part of the client, and eliminates an unnecessary source of conflict. Thus, we also find merit in this suggestion.

Id. at 583. The client in Lochner was awarded real property in the dissolution action against which the trial court imposed a charging lien. This court reversed the imposition of the charging lien on this real property because the attorney’s motion for a charging lien did not allege any agreement that his fee would be protected by a charging lien against any real estate involved in the divorce and neither did the record support such agreement. Id.

Applying Lochner and Conroy to the facts of Mrs. Riveiro’s case, we find the record does not disclose any agreement that Mr.Mason’s and Ms. Marsh’s fees would be secured by any real estate Mrs. Riveiro might be awarded in the dissolution action. Accordingly, we hold the trial court erred in imposing a charging lien against any

Page 7

and all real property owned by Mrs. Riveiro, individually or jointly, subject to the dissolution action. On remand, the charging lien on the real property she was awarded in the dissolution judgment must be dissolved.

But, also in accordance with Lochner and Conroy, this is not the case with the personal property Mrs. Riveiro received in the dissolution judgment. All the requirements for imposing a charging lien on personal property are present here. Mrs. Riveiro had a written contractual agreement regarding the payment of attorneys’ fees with Mr. Mason and Ms. Marsh. Thus, the trial court could properly conclude that an implied understanding existed that payment would come from her portion of the equitable distribution of personal property. And, fulfilling the last requirement to merit a charging lien, Mrs. Riveiro did attempt to avoid the payment of fees and did dispute the amount due. We conclude that the trial court did not err in awarding a charging lien against Mrs. Riveiro’s personal property. See Baucom, 428 So. 2d at 1385.

Concluding that a charging lien was properly imposed on Mrs. Riveiro’s personal property, we turn next to Mrs. Riveiro’s final contention, i.e., that the trial court erred in awarding the amount it did, over $76,000 in unpaid fees. The trial court’s order only determined a total amount due to Mr. Mason and Ms. Marsh. It made no finding as to the reasonable hourly rate or the amount of hours reasonably expended in this case. This was error. It deprived Mrs. Riveiro of meaningful appellate review, hampering the task of this court. SeeSantiago v. Santiago, 51 So. 3d 637, 639 (Fla. 2d DCA 2011) (“The lack of findings . . . precludes meaningful appellate review.”). Upon remand, the

Page 8

trial court shall make the necessary Rowe¹ findings. See Dralus v. Dralus, 627 So. 2d 505, 509 (Fla. 2d DCA 1993).

In light of testimony offered on behalf of Mrs. Riveiro on this issue, revealing that the time records kept, particularly by Ms. Marsh, were lacking detail, it is necessary for the trial court on remand to examine the challenged billing entries. If the trial court should find that the challenged entries and any testimony offered in support of those entries are lacking in sufficient detail to establish either reasonableness or necessity, no award should be made. See Highlands Carpentry Serv., Inc. v. Connone, 873 So. 2d 611 (Fla. 2d DCA 2004). It is not necessary for the trial court to undertake another hearing. Because there is a record, the trial court needs only a clear recollection of the hearing proceedings. However, should the trial court deem it necessary to do so, a new, full evidentiary hearing may be in order.

We affirm that part of the final order imposing a charging lien on the personal property that Mrs. Riveiro received in the dissolution judgment, reverse and vacate that part of the final order related to a charging lien on her real property, reverse and vacate the amount of fees awarded, and remand with instructions to provide a final order with proper findings as to the amount of fees to which Mr. Mason and Ms. Marsh are entitled.

Affirmed in part, reversed in part, and remanded.

DAVIS and LaROSE, JJ., Concur.

Khan v. Khan, 79 So. 3d 99 (Fla. 4th DCA 2012).  Trial court reversed for striking notice of hearing for temporary relief based on allegation Wife waived alimony and fees in a MSA she signed in a previous divorce that had already been dismissed.  It is against public policy to waive temporary alimony and fees.

Appeals:

Messier v. Martin-Messier, 77 So. 3d 795 (Fla. 3rd DCA 2011).  Motion for rehearing did not toll time to file appeal of an order denying 1.540 motion.  A motion for rehearing directed at a non-final order does not toll time for appeal.

Attorneys’ Fees:

Leon v. Velazquez, 79 So. 3d 114 (Fla. 3rd DCA 2012).  Order awarding temporary fees reversed and remanded when order lacked findings of fact as the Husband’s ability and Wife’s need.

Luke v. Luke, 79 So. 3d 388 (Fla. 1st DCA 2012).  Order of fees reversed for failure to include findings as to reasonableness of rate and hours.

Equitable Distribution:

Robertson v. Robertson, 78 So. 3d 76 (Fla. 5th DCA 2012).  Trial court’s judgment finding no active appreciation in pre-marital website reversed when Wife sought continuance because out of state expert was unavailable and trial court refused to let expert provide rebuttal testimony by phone.  Trial court should have found a way to accommodate the Wife.

Imputation of Income:

Middleton v. Middleton, 79 So. 3d 836 (Fla. 5th DCA 2012).  Trial Court reversed for failing to impute income to the Wife because the Husband’s expert could not place Wife in a job.  Trial Court should have considered Wife’s work history, occupational qualifications and prevailing earnings in the community.

Modification:

Koslowski v. Koslowski, 78 So. 3d 642 (Fla. 1st DCA 2011).  Trial court affirmed for increasing and extending child support that is incompetent and suffers seizure disorder.

Nabinger v. Nabinger, 82 So. 3d 1075 (Fla. 1st DCA 2011).   Trial court erred in offsetting child support for adoption subsidy Former Wife received for adopted child when there was no offset in original final judgment.

Galligar v. Galligar, 77 So. 3d 808 (Fla. 1st DCA 2011).  Trial court reversed when it only modified Former Husband’s alimony obligation down to $3,500 per month.  While Court may consider net worth, past earnings and capital assets, Court cannot require Former Husband to incur indebtedness and deplete assets to pay alimony.

Parenting:

TMH v. DMT, 79 So. 3d 787 (Fla. 5th DCA 2011).  Trial court reversed for ruling lesbian woman who donated ova to lesbian partner and raised child with her was deprived of parental rights pursuant to section 742.14, Florida Statutes.  5th DCA found statute unconstitutional and certifies conflict.

Paternity:

DOR v. Iglesias, 77 So. 3d 878 (Fla. 4th DCA 2012).  Order dismissing paternity suit filed by alleged biological father against intact married couple remanded for determination remanded for finding whether it would be in best interest of child to allow DOR to pursue paternity action.  Order dismissing contained no findings of fact and was not an evidentiary hearing.

DOR v. GAT, 76 So. 3d 1083 (Fla. 2nd DCA 2011).  Trial court reversed for entering order disestablishing paternity because Mother did not produce child for DNA testing.  Remanded to determine if failure to submit to testing was willful.

Procedure:

Ross v. Ross, 77 So. 3d 238 (Fla. 4th DCA 2012).  Trial Court reversed for continuing to preside over case after granting motion for recusal.

In Re: Rules of Family Law Pro, 37 FLW S36 (Fla. 2012).  Rules clarify parties are not to file financial documents in court file along with discovery responses.

Relocation:

Schell v. Schell, 77 So. 3d 895 (Fla 5th DCA 2012).  Trial court’s order allowing relocation affirmed when there was no transcript and no errors on face of the judgment.