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-eddie

Bedoya v. Bedoya, 36 FLW D2318 (Fla. 3^rd DCA 2011).  Final judgment reversed as it provided alimony from date of filing divorce instead of from date prenuptial agreement was signed as provided for in the agreement.

Crawford v. Barker, 64 So. 3d 1246 (Fla. 2011).  Resolves conflict with Smith, 919 So. 2d 525 (Fla. 5^th DCA 2005).  Husband pre-dissolution made wife beneficiary of retirement.  In divorce, husband received retirement but there was no mention of death benefit.  Husband never changed beneficiary.  Husband dies.  3^rd DCA opinion saying Marital Settlement Agreement waived wife’s beneficiary interest quashed.  Absent the Marital Settlement Agreement providing who is to receive death benefits, court should not look further than named beneficiary on policy, in this case, the wife.

Adams v. Adams, 58 So. 3d 340 (Fla. 2^nd DCA 2011).  Trial Court reversed for requiring husband to pay wife one half of insurance proceeds from wife’s column on marital expenses prior to separation.  Parties entered into settlement that did not address proceeds.   A pure property settlement agreement is not modifiable.

Moree v. Moree, 59 So. 3d 205 (Fla. 2^nd DCA 2011).   Trial Court reversed for denying Husband’s motion to set aside agreement without evidentiary hearing when motion adequately alleged a claim of relief based upon mutual mistake.

Schlifstein v. Schlifstein, 52 So. 3d 841 (Fla. 2^nd DCA 2011).  Trial court reversed for requiring former husband to make $130,000 payment which was conditioned upon Husband selling or refinancing.  Court found former husband made less than a good faith effort.  Agreement was ambiguous and did not require former husband to make a good faith effort.

Ferguson v. Ferguson, 54 So. 3d 553 (Fla. 3^rd DCA 2011).  Court reversed for voiding portion of mediated agreement which required former husband to refinance or sell property because it was “impossible”.  Decline in the real estate market is not the sort of unanticipated circumstances that would trigger doctrine of impossibility.

Alimony:

Zambuto v. Zambuto, 36 Fla.L.Weekly D2758 (Fla. 2^nd DCA 2011).  Award of alimony reversed when Court failed to attribute an earning capacity to the Wife based upon the evidence.

Witt v. Witt, 36 FLW D2352 (Fla. 2^nd DCA 2011).  Final judgment denying alimony because wife was to receive equalizing payment and it was a short term marriage.  Court required to make findings of fact per 61.08.

Wu v. Xing, 36 FLW D2444 (Fla. 3^rd DCA 2011).  Trial court reversed for awarding permanent alimony without any findings of fact that would support such an award.

Draulans v. Draulans, 36 Fla. L. Weekly D2065, 2011 Fla. App. LEXIS 14675 (Fla. 2^nd DCA 2011).  Award of rehabilitative alimony reversed when judgment did not include termination date for alimony.

Sellers v. Sellers,  68 So. 3d 348 (Fla. 1^st DCA 2011).  Trial court reversed for awarding equity in home as permanent alimony instead of a periodic amount.  A decision to award permanent alimony must be based on assessment of the needs of one spouse and the ability of the other spouse to pay.

Bell v. Bell, 68 So. 3d 321; 2011 (Fla. 4^th DCA 2011), Rehearing denied by Bell v. Bell, 2011 Fla. App. LEXIS 15209 (Fla. 4^th DCA, Sept. 21, 2011).    Judge Stern reversed for failing to award “bridge the gap” alimony in ten year marriage without adequate findings of fact to explain his rationale.

Demont v. Demont, 67 So. 3d 1096 (Fla. 1^st DCA 2011).  Nominal alimony award affirmed when husband lacked ability.  Court correctly ruled wife was in need of permanent alimony and nominal award served to allow wife to seek income in event husband’s financial position improves or if parties’ respective financial positions change substantially.

Horton v. Horton, 62 So. 3d 689 (Fla. 2^nd DCA 2011).  Error for court to award rehab alimony for educational expenses but not living expenses when wife had need.  Remanded for court to reconsider in light rehabilitative plan was for only two (2) years.

Lule v. Lule, 60 So. 3d 567 (Fla. 4^th DCA 2011).  Judge Lewis reversed for awarding Husband’s interest in marital residence to Wife as lump sum alimony for “abandoning the marriage”.  Court made no findings of fact relating to alimony or equitable distribution.  In order to award lump sum alimony Court must make findings of special need for lump sum payment and unusual circumstances that would require non-modifiable award of support.

Mills v. Mills, 62 So. 3d 672 (Fla. 2^nd DCA 2011).  Court reversed for failing to include business income (gross receipts less ordinary business expenses) and in kind payments which reduced Husband’s living expenses in calculating income for purposes of determining alimony.

Fortune v. Fortune, 61 So. 3d 441 (Fla. 2^nd DCA 2011).  Error not to award Wife nominal alimony in 16 year marriage where Husband did not possess present ability.  When one spouse is entitled to permanent alimony, and the other does not have current ability to pay, the trial court should award nominal alimony which gives the court jurisdiction to reconsider the award should the parties’ financial circumstances change.

Grimm v. Grimm, 58 So. 3d 428 (Fla. 1^st DCA 2011).  Failure to award husband alimony reversed when Court failed to consider wife’s non-marital assets.

Liebrecht v. Liebrecht, 58 So. 3d 415 (Fla. 2^nd DCA 2011).  Trial Court reversed for failing to award nominal permanent alimony in marriage of 15 years 8 months (gray area) when parties agreed wife would be stay at home mother.

Brathwaite v. Brathwaite, 58 So. 3d 398 (Fla. 1^st DCA 2011).  Trial Court reversed for including mortgage payment in wife’s needs when house was going to be sold and husband was paying mortgage.

Kennedy v. Kennedy, 60 So. 3d 466 (Fla. 2^nd DCA 2011).  Denial of permanent alimony in “gray area” case reversed for lack of findings of fact.  Gray area marriage in itself not sufficient to deny permanent alimony.

Delate v. Iler, 50 So. 3d 1242 (Fla. 4^th DCA 2011).  Judge Oftedal’s award of permanent alimony affirmed when Husband did not have ability to support wife at her determined needs.  In event former husband’s circumstances change, former wife can seek a modification based upon 1) substantial, 2) unanticipated and 3) sufficient, material, permanent and involuntary.

Roth v. Cortina, 59 So. 3d 163 (Fla. 3^rd DCA 2011).  Post Judgment award of alimony that preceded property division reversed.  A Trial Court must first fashion equitable distribution, then make determination whether alimony should be awarded.

Janssens v. Janssens, 51 So. 3d 1183 (Fla 5^th DCA 2011).  Nominal alimony of $1 reversed because of debt allocated to Husband which caused him not to be able to pay alimony. Finding was not supported by record.  Case remanded.

Betancourt v. Betancourt, 50 So. 3d 768 (Fla 3nd DCA 2011).  Award of alimony reversed when it was based on Husband’s $3,500 per month rental income, but failed to deduct ordinary and necessary expenses to maintain property.

Appeals:

Rushetsky v. Rushetsky, 36 FLW D2568 (Fla. 4^th DCA 2011).  Failure to provide transcript or proper substitute requires affirmance except where there is a clear error on the face of the judgment.

Mcgrath v. Puckett, 36 FLW D2541 (Fla. 1^st DCA 2011).   Non final order denying relocation which was part of dissolution action was a non-appealable order because it did not dispose of a claim that is separate and distinct from divorce action.

Wright v. Wright, 36 FLW D2424 (Fla. 1^st DCA 2011).  Appeal of final judgment that reserved jurisdiction over integrally related issues dismissed as premature.  Traditional test for finality requires “no further action by the Court is necessary”.

Crowell v. Crowell, 36 FLW D2336 (Fla. 5^th DCA 2011).  Appeal of order awarding entitlement to fees but not amount dismissed as premature.  Until amount determined, order on entitlement was non-appealable final order.

Hunter v. Hunter, 36 FLW D2274 (Fla 2^nd DCA 2011).  Final judgment reversed because it was entered while an appeal of non-final order was pending.  Per 9.130(f) trial court was divested of jurisdiction to enter final judgment until appeal concluded.

Shinitzky v. Shinitzky, 36 Fla. L. Weekly D1820; 2011 Fla. App. LEXIS 12893 (Fla. 4^th DCA 2011).  Judge Lewis reversed for exceeding mandate and modifying a judgment that had been affirmed.  A modification seeks to change status quo and seeks a new benefit for one of the parties.  A clarification does not seek to change rights and obligations but to make the judgment more clear and precise.

Doran v. Doran, 57 So. 3d 933 (Fla. 1^st DCA 2011).  Appeal dismissed as premature when final judgment reserved jurisdiction to expend additional judicial labor in determining child support.

Furr v. Furr, 67 So. 3d 1181 (Fla. 1^st DCA 2011).  Trial Court affirmed when party failed to seek rehearing on failure to make findings of fact.  Appellate Court unable to determine statutorily required findings of fact without transcript.

Pennywell v. DOR, 62 So. 3d 19 (Fla. 1^st DCA 2011).  Appeal dismissed as untimely.  Second motion for rehearing is not authorized and does not toll time to file appeal.

Kinney v. Kinney, 49 So. 3d 343 (Fla 2^nd DCA 2011).  Appeal challenging final judgment of modification dismissed as judgment reserved to determine retroactive alimony arrearage.  Because additional judicial labor was contemplated, appeal was premature.

Williamson v. Cowan, 49 So. 3d 867 (Fla. 5^th DCA 2011).  Final judgment imputing income with no finding of facts and no transcript affirmed because lack of findings was not challenged in a motion for rehearing.

Attorneys’ Fees:

Jurasek v. Jurasek, 67 So. 3d 1210 (Fla. 3^rd DCA 2011).   Trial court’s denial of attorneys fees reversed when parties agreed to reserve jurisdiction on issue.

Tummings v. Francois, 36 Fla. L. Weekly D1737; 2011 Fla. App. LEXIS 12556 (Fla. 2^nd DCA 2011).  Trial Court reversed for denying fee request because each party received $90,000 in property division.  Trial court failed to consider disparate incomes.

Mincy v. Mincy,  66 So. 3d 1075 (Fla. 5^th DCA 2011).  Awarded costs of $5,000 for business valuation reversed when Wife abandoned valuation.  Other attorneys fees remanded as Court did not including finding they were reasonable.

Tilchin v. Tilchin, 65 So. 3d 1207 (Fla. 2^nd DCA 2011).  Order granting attorneys fees reversed and remanded for reconsideration when underlying final judgment has been reversed and remanded.  On remand trial court to determine issue of attorneys’ fees after it decides issues of alimony and equitable distribution on remand as it may impact parties’ financial conditions.

Foster v. Foster, 36 Fla. L. Weekly D1486; 2011 Fla. App. LEXIS 10653 (Fla. 5^th DCA 2011),   Rehearing denied 2011 Fla. App. LEXIS 14192 (Fla.  5^th DCA Aug. 10, 2011).  Award of attorneys’ fees reversed after trial court places parties in relatively same financial position.  One party should not have to substantially deplete his or her overall equitable distribution.

Jankowski v. Dey, 64 So. 3d 183 (Fla. 2^nd DCA 2011).  Trial court reversed for amending final order awarding fees to wife who then refused to pay her attorney and experts.  Law firm had no standing to challenge satisfaction.  Illustrates importance of making award of fees and costs payable directly to attorney where party has not paid for all of their fees yet.

Diaz v. Diaz, 66 So. 3d 983 (Fla. 3^rd DCA 2011).  Trial courts income deduction order reversed for including attorneys fees for collateral matters.  An income deduction order is appropriate vehicle to collect attorneys’ fees “incurred as a result of securing and/or collecting child support or alimony.”

Robinson v. Robinson, 36 Fla. L. Weekly D1337; 2011 Fla. App. LEXIS 962 (Fla. 4^th DCA 2011).  Judge Diana Lewis reversed for awarding legal fees in amount of $13,683.42 when total bill was $20,310.92 and $15,000 was already paid from joint account.  Matter remanded to determine why wife would need more than $5,310.92.

Morris v. Morris, 62 So. 3d 1215 (Fla. 5^th DCA 2011).  Trial court erred in not setting fee award off husband’s overpayment in alimony.

Thomas v. Thomas, 61 So. 3d 1282 (Fla. 5^th DCA 2011).  Trial court reversed for awarding spouse two (2) days wages as sanction for other spouse missing mediation.  Order on fees remanded.  Entitlement was appropriate, but court failed to include findings as to reasonableness of time and rate.

Kemp v. Kemp, 61 So. 3d 481 (Fla. 5^th DCA 2011).  Award of attorneys fees reversed.  When you are seeking award from other party, as opposed to your client, Court must make findings as to reasonableness of rate and time expended.

Santini v. Miller, 65 So. 3d 22 (Fla 4^th DCA 2011).   Order adjudicating charging lien on contingency fee (not family case) reversed because attorney had to withdraw due to being suspended from the practice of law before the occurrence of the contingency.  Ergo, no fruits produced by his labor.  Appellants awarded appellate attorneys fees sua sponte by Fourth DCA.

Grover v. Grover, 59 So. 3d 333 (Fla. 5^th DCA 2011).  Trial Court reversed for partially denying fees for multiple attorneys used by requesting party.  Question is not whether there is a need to hire more than one attorney.  Rather, did the attorneys engage in duplicative work.  Here, no evidence two attorneys did duplicative work.

Flores v. Flores, 36 Fla. L. Weekly D724; 2011 Fla. App. LEXIS 4769 (Fla. 4^th DCA 2011).  Trial Court reversed for not addressing wife’s request for fees or reserving jurisdiction on issue when matter was properly pled.

LaVere-Alvaro v. Syprett, Meshad, Resnick, Lieb, Dumbaugh, Jones, Krotec & Westheimer, P.A., 54 So. 3d 1056 (Fla. 2^nd DCA 2011).   Charging lien reversed because Court failed to determine whether attorney provided services that produced a positive judgment.

Ingram v. Ingram, 59 So. 3d 147 (Fla. 1^st DCA 2011).  Award of fees revered when order lacked specific findings regarding hourly rates and number of hours expended.

Higginbotham v. Higginbotham, 52 So. 3d 806 (Fla. 3^rd DCA 2011).  Court was not limited by prenuptial agreement to award the Wife $5,000 in temporary fees, however, award of $305,640 was excessive and reversed.

Glass v. Glass, 49 So. 3d 867 (Fla 4^th DCA 2011).  Contempt order awarding fees because there was no finding as to recipients needs.

Child Support:

Pomeroy v. Pomeroy, 36 FLW D2748 (Fla. 1^st DCA 2011).  Trial Court reversed for requiring parent to provide health insurance for child over the age of 18.

Capo v. Capo, 36 FLW D2465 (Fla. 3^rd DCA 2011).   Order on support reversed when it did not make findings of fact as to parties’ net incomes or otherwise explain how calculation was performed.

Burnett v. Burnett, 66 So. 3d 1102 (Fla. 5^th DCA 2011).  Trial court reversed for requiring support in an amount that exceeds husband’s imputed income.

Vanzant v. Vanzant, 36 Fla. L. Weekly D1797; 2011 Fla. App. LEXIS 12794 (Fla. 1^st DCA 2011).  Order of support reversed when Court confused gross income with net.

Tummings v. Francois, 36 Fla. L. Weekly D1737 ; 2011 Fla. App. LEXIS 12556 (Fla. 2^nd DCA 2011).    Trial Court reversed for dividing uncovered medical expenses by percentage of overnight visits.  Percentage must be based on ratio of income, not number of overnights.

Newberry v. Newberry, 67 So. 3d 1123 (Fla. 1^st DCA 2011).  Child support award reversed as it failed to include day care in calculations.

Finch v. DOR, 65 So. 3d 1150 (Fla. 3^rd DCA 2011).  Child support order reversed as findings were inconsistent to husband’s income.  Further retroactive support can only be based on current income when obligor fails to determine actual income during retroactive period.  Diaz v. Diaz, 36 Fla. L. Weekly D1392 (Fla. 3^rd DCA 2011).  Income deduction order garnishing 60% of net income remanded to ensure obligor had sufficient monies to live.  60% is not per se unreasonable, but requires careful analysis.

Nilsen v. Nilsen, 63 So. 3d 850 (Fla. 1^st DCA 2011).  Trial court erred in awarding temporary undifferentiated support (alimony and child support combined in one amount).  Court must apply child support guidelines, even to temporary support.

Russell v. McQueen, 62 So. 3d 683 (Fla. 4^th DCA 2011).  Child support award reversed because: 1) failed to include cost to father of child’s insurance; 2) court used incorrect figure to calculate interest; and 3) husband double charged for uncovered medical expenses, among others.

Palewsky v. DOR, 61 So. 3d 1227 (Fla. 3^rd DCA 2011).  Order of child support reversed when no guidelines filed.

Grillo v. Clay, 59 So. 3d 337 (Fla. 4^th DCA 2011).  Judge Burton reversed for modifying child support without evidentiary hearing.  Further, order conditioned timesharing on payment of support which renders order fundamentally defective.

Peters v. Blackshear, 53 So. 3d 1233 (Fla. 1^st DCA 2011).  Trial court reversed for requiring Father to maintain $400,000 in life insurance to insure monthly child support obligation of $750 when child emancipates in 2 years.  Amount of insurance bears no reasonable relationship to amount of child support.

Coristine v. Coristine, 53 So. 3d 1204 (Fla. 5^th DCA 2011).  Trial court affirmed for granting partition of home instead of exclusive use and possession until child emancipates.  As a general rule, Court should award primary parent exclusive use of residence until child emancipates unless there are special circumstances.  Special circumstances exist where parties incomes are inadequate to meet their debts, expenses and cost of maintaining residence.

Rowe v. Rodriguez-Schmidt, 51 So. 3d 1238 (Fla. 2^nd DCA 2011).   50/50 allocation of medical expenses reversed.  Must be pro rata based on income unless otherwise factored into child support.

Maslow v. Edwards, 59 So. 3d 299 (Fla. 5^th DCA 2011).  Revised opinion.  When husband receives veteran’s disability payments for child, amount received should be added to father’s income for purposes of calculating child support.

Brend v. Brend, 56 So. 3d 923 (Fla. 2^nd DCA 2011).  Trial Court reversed for calculating support on gross incomes.  Child support calculating based on net so Court must decide who gets child dependency to calculate correctly.

Lampert v. Lampert, 57 So. 3d 287 (Fla. 4^th DCA 2011).  Trial Court affirmed for approving magistrate’s report child support agreement was void as it was not in child’s best interest.  Trial Court reversed for granting exceptions as to child support credit.  Magistrate’s findings of fact or conclusions of law may not be rejected by Trial Court in the absence of clear error.

Domestic Violence:

Reese v. Marcus,  36 FLW D2454 (Fla. 5^th DCA 2011).  Domestic violence injunction affirmed when respondent alleged due process violations but failed to provide transcript.  Without transcript, appellate court unable to ascertain if trial court erred.

Hasey v. Metzger, 36 FLW D2394 (Fla. 4^th DCA 2011).  Summary denial of costs (not attorney’s fees) for respondent reversed after petitioner voluntarily dismissed domestic violence injunction.

G.C. v. R.S.,  36 Fla. L. Weekly D2060; 2011 Fla. App. LEXIS 14629 (Fla. 1^st DCA 2011).  Injunction against domestic violence reversed when based on Father’s single spank on child’s buttocks in response to disrespectful behavior.  Parents have right to discipline children in reasonable manner.  Corporal discipline of a child by a parent or legal guardian does not constitute abuse when it does not result in harm to the child.

Deale v. Deale,  68 So. 3d 432 (Fla. 5^th DCA 2011).  Denial of injunction for insufficient evidence affirmed.  Appellate Court cannot substitute its judgment for trial court.

McFarr v. McKee, 36 Fla. L. Weekly D1950; 2011 Fla. App. LEXIS 13902 (Fla. 5^th DCA 2011)  Denial of motion to dissolve injunction reversed when petitioner not afforded evidentiary hearing.  Section 784.046(10) allows court to modify/dissolve injunction from time to time on motion on interested party.

Niederkorn v. Trivino,  68 So. 3d 991 (Fla. 5^th DCA 2011).  Denial of dating violence injunction remanded when trial court did not afford a full evidentiary hearing.

Furry v. Von Arb Rickles, 68 So. 3d 389 (Fla. 1^st DCA 2011).  Domestic violence injunction reversed when Judge did not allow full evidentiary hearing on matter.

Jones v. Jackson, 67 So. 3d 1203 (Fla. 2^nd DDCA 2011).  Order if injunction against repeat violence reversed when harassment would not cause reasonable person to suffer emotional distress.

LC v. AMC, 36 Fla. L. Weekly D1853; 2011 Fla. App. LEXIS 13084 (Fla. 2^nd DCA 2011).  Final judgment of injunction against domestic violence reversed for inadequate notice.  Respondent was served 25 hours before hearing, tried to obtain a lawyer but couldn’t, promptly filed for rehearing with counsel and alleged victim was not in imminent harm.

Barker v. Rodriguez, 36 Fla. L. Weekly D1805; 2011 Fla. App. LEXIS 12972 (Fla. 4^th DCA 2011).  Final judgment of injunction against domestic violence that granted mother temporary custody of child affirmed where no transcript present that supported Husband’s claim he was denied due process.

Parrish v. Price, 36 Fla. L. Weekly D1233; 2011 Fla. App. LEXIS 8458 (Fla. 2^nd DCA 2011).  Parent is authorized to file domestic violence injunction on behalf of their minor child.

Moriggia v. Moriggia, 62 So. 3d 1151 (Fla. 2^nd DCA 2011).  Trial court erred in granting injunction against domestic violence when there was no evidence to support respondent was physically abusive and no evidence to support respondent will be victim of domestic violence.

Horton v. Horton, 62 So. 3d 689 (Fla. 2^nd DCA 2011).  Trial court reversed for failing to use Parry coverture method in valuing husband’s marital portion of retirement.  Trial court erred in awarding husband non-marital portion of residence when proceeds from sale were deposited into joint accounts and comingled.

Konz v. Konz, 63 So. 3d 845 (Fla. 4^th DCA 2011).  Judge Brunson reversed for valuing mortgage at $145,000 when only evidence valued it at $105,000.  Court also failed to distribute certain liabilities.

Stewmon v. Stewmon, 66 So. 3d 312 (Fla. 2^nd DCA 2011).  Trial court reversed for ruling property distribution equalizing payment “nondischargeable” in bankruptcy.  Further equitable distribution scheme reversed due to inconsistent valuation dates and insufficient findings of fact.  61.075(3) requires the following findings: 1) identification of non-marital assets; 2) identification of marital assets, including valuation of significant assets and designation of who asset is awarded to; 3) designation of marital liabilities and designation of responsible spouse; and 4) any other finding necessary to explain distribution.

L.C. c. A.M.C.,  67 So. 3d 1181 (Fla. 2^nd DCA 2011).  Domestic violence injunction against child’s grandfather reversed because respondent only received one day’s notice of hearing, could not obtain an attorney and Court did not provide opportunity for evidentiary hearing.

Fortune v. Fortune, 61 So. 3d 441 (Fla. 2^nd DCA 2011).  Error to award tax exemption to Father without making it contingent upon support being current.

Power v. Boyle, 60 So. 3d 496 (Fla. 1^st DCA 2011).  In support of repeat violence injuction allegations of yelling obscenities, flipping off, dog urinating on property, yelling obscenities while drunk is not legitimate basis for issuance of injunction per 784.046.  Judge’s desire “to keep the peace” not sufficient to support injunction.

Cox v. Deacon, 36 Fla. L. Weekly D733; 2011 Fla. App. LEXIS 4788 (Fla. 4^th DCA 2011).   Trial Court affirmed for granting jurisdiction in excess of one year.  One year limitation removed from statute in 1997.

Kugler v. Joosten, 58 So. 3d 323 (Fla. 1^st DCA 2011).  Error for Court to summarily dismiss motion to dissolve injunction without an evidentiary hearing.   Moving party deserves meaningful opportunity to be heard.

Murphy v. Reynolds, 55 So. 3d 716 (Fla. 1^st DCA 2011).  Injunction against repeat violence reversed when no evidence respondent conducted events of cyber stalking.

Alkhoury v. Alkhoury, 54 So. 3d 641 (Fla. 1^st DCA 2011).  Order denying motion to dissolve injunction affirmed when moving party failed to demonstrate scenario underlying injunction no longer exists or continuation of the injunction would serve no valid purpose.

Monteiro v. Monteiro, 55 So. 3d 686 (Fla. 3^rd DCA 2011).  Court affirmed for ordering in camera interview of children of alleged sexual abuse.  Trial Court has inherent and authority to protect a child witness.  Court may implement procedures not expressly authorized by law to further public interest.

Randolph v. Rich, 58 So. 3d 290 (Fla. 1^st DCA 2011).  D.V. injunction reversed.  Parties had acrimonious relationship, former wife complained former husband harassed her and there was an incident where former husband grabbed papers from former wife’s hands but did not touch or verbally threaten her.  Law requires more than general relationship problems and uncivil behavior to support issuance of injunction.  Party seeking injunction must present sufficient evidence to establish objective fear of imminent harm.

Fleshman v. Fleshman, 50 So. 3d 797 (Fla. 2^nd DCA 2011).  Error to enter domestic violence injunction between Father and son when they have never lived together.

Gill v. Gill, 50 So. 3d 772 (Fla 2^nd DCA 2011).  DV injunction reversed when there was insufficient evidence on objective fear of imminent danger.  An isolated incident of domestic violence that occurred years before the petition for injunction was filed will not support injunction without current allegations of abuse.

Enforcement:

Hernandez v. Frontiero, 36 FLW D2427 (Fla. 4^th DCA 2011).  Judge Diana Lewis reversed for requiring former husband to pay $20 per month towards arrears.  Former Husband was not present at hearing and did not rebut presumption of ability.  There was no evidence to justify trial court’s ruling.

Phillip v. DOR, 36 FLW D2381 (Fla. 3^rd DCA 2011).  Contempt order reversed as trial court did not have competent substantial evidence of present ability to pay.Levy v. Jacobs, 36 Fla. L. Weekly D2099; 2011 Fla. App. LEXIS 14981 (Fla. 4^th DCA 2011).  Injunction against repeat violence affirmed.  In order to support injunction against repeat violence there must be at least two qualifying acts of violence.  Multiple acts stemming from a single violent  incident do not constitute repeat violence where acts are not separated by time or distance.  In this case, there were two separate attacks, one outside, one inside, and they were separated by five minutes.

Jackmore v. Estate of Jackmore, 36 Fla. L. Weekly D2217; 2011 Fla. App. LEXIS 15783 (Fla. 1^st DCA 2011).  Dismissed action against estate for unpaid alimony reversed.  Florida does not have statute of limitations on alimony.  Remanded for evidentiary hearing to ensure latches does not apply.

Harris v. Hampton, 36 Fla. L. Weekly D2183; 2011 Fla. App. LEXIS 15740 (Fla. 4^th DCA 2011).  Contempt order requiring former wife to enroll child in specific private school reversed when underlying order did not make it clear who was going to pay for school and no findings as to ability to afford private school.

Brown v. Brown,  68 So. 3d 964 (Fla. 2^nd DCA 2011).  Contempt order requiring Husband to pay less support then he agreed to affirmed.  Amount agreed to exceeded Husband’s ability to pay.  Trial Court authorized to fashion purge provision on party’s ability.  Court did not modify obligation, it just would not enforce an amount Husband could not afford despite his agreement.

Opatz v. Opatz, 67 So. 3d 446 (Fla. 4^th DCA 2011).  Court reversed for failing to hold Former Husband in contempt after matter referred to magistrate who never issued report.  Court also reversed for improperly modifying support when it had not been pled.

Simpson v. Simpson, 68 So. 3d 958 (Fla. 4^th DCA 2011).  Court did not err denying motion for contempt seeking to enforce payment of vehicle loan which was not incident of support.

Keeler v. Keeler, 66 So. 3d 1081 (Fla. 3^rd DCA 2011).  Order finding party in criminal contempt reversed when trial court found past ability to pay versus present.

Hunter v. Hunter, 65 So. 3d 1213 (Fla. 2^nd DCA 2011).  Trial court reversed for granting change in custody as based on 2^nd motion for contempt when relief was not requested and Court did not find modification in child’s best interest.

Hill v. Hill, 65 So. 3d 143 (Fla. 5^th DCA 2011).  Trial court erred in entering judgment for $90,000 when wife requested partition to enforce settlement.  Former wife never requested money judgment as relief.  Remanded to trial court to treat motion for partition as a motion for relief from judgment.

Lustgarten v. Lustgarten, 65 So. 3d 85 (Fla. 4^th DCA 2011).  Judge Makemson reversed for holding former husband in contempt for failing to pay $300,000 for former wife’s kidney transplant.  Former husband agreed to pay former wife’s uncovered expenses.  However, wife’s first doctor did not recommend transplant so former husband had enough concern his refusal to pay was not “intentional”.  Fact agreement did not specify medical expenses must be “reasonable and necessary” does not waive defense that expenses must be “reasonable and necessary.”  Former husband still required to pay cost of transplant ($169,000) but order of contempt reversed.

Galpern v. DOR, 58 So. 3d 438 (Fla. 4^th DCA 2011).  Judge Burton reversed for purge provision required father to pay $700 immediately and $20,000 every sixty days thereafter when only evidence of ability was father made $400 a week plus commissions plus food stamps.  Order is facially deficient.

Elliot v. Bradshaw, 59 So. 3d 1182 (Fla. 4^th DCA 2011).   Judge Brunson reversed for considering husband’s equity in house of 2.25 million which is listed for sale.  In present distressed house it is uncertain is husband could sell property even at discount.  Present ability to pay not supported by evidence.

Morena v. Morena, 57 So. 3d 995 (Fla. 3^rd DCA 2011).  Court reversed for not granting contempt based upon agreed order neither party would disparage.  Wife wrote a book, did interviews and disparaged husband.  Trial Court had no discretion to deny any motion.  However, in footnote, Appellate Court suggests nominal fine as parties failed to agree on sanction.

Powell v. Powell, 55 So. 3d 708 (Fla. 4^th DCA 2011).  Trial Court’s order on fees and order on contempt for failure to pay fees reversed.  Order lacked findings of fact on reasonableness of rate and hours.  Husband cannot be held in contempt for violating improper fee award.

Pirelli v. Bolanos, 54 So. 3d 1047 (Fla. 4^th DCA 2011).  Judge Brunson reversed because she failed to identify  source of purge in commitment order.

Criollo v. Criollo, 53 So. 3d 391 (Fla. 5^th DCA 2011).  Error to incarcerate former husband for 100 days or until he paid full $67,000 purge when there was no evidence former husband had ability to meet purge.

Equitable Distribution:

Zambuto v. Zambuto, 36 FLW D2758 (Fla. 2^nd DCA 2011).  Trial court erred in assigning $90,000 in gambling losses in absence of misconduct.  Misconduct is not shown by mismanagement or simple squandering of assets in a manner other spouse disapproves.  Rather, there must be a specific finding of intentional misconduct and money was used for one’s benefit for a purpose unrelated to marriage at a time when marriage is undergoing an irreconcilable breakdown.

Kerzner v. Kerzner, 36 FLW D2608 (Fla. 3^rd DCA 2011).  Trial court affirmed for affording homestead protection on husband’s proceeds from sale of homestead property.  A protected homestead may be voluntarily sold and funds will be protected so long as they are not commingled and are held for the sole purpose of acquiring another home within a reasonable period of time.  Former Husband did not waive this protection for child support arrears from another relationship by agreeing to “pay any lien or encumbrance against marital home from proceeds”.

Tuomey v. Tuomey, 36 FLW D2539 (Fla. 5^th DCA 2011).  Trial court reversed for offsetting former husband’s obligation to pay expenses on residence with the value of received by his use of the property when there are no findings as to fair market rental value.

Witt v. Witt, 36 FLW D2352 (Fla. 2^nd DCA 2011).  Final judgment with equitable distribution reversed as it was unclear.  Trial court failed to assign $100,000 contingent tax liability, failed to accept parties’ stipulation on value of premarital portion of business, and made a number of other mistakes.

Wu v. Xing, 36 FLW D2444 (Fla. 3^rd DCA 2011).  Trial court reversed for awarding marital residence, the only significant marital asset, to one party without findings of fact that would justify unequal distribution.

Fotinos v. Fotinos, 36 FLW D2287 (Fla. 2^nd DCA 2011).  Judgment awarding exclusive use and possession of marital property to husband reversed when property not included in equitable distribution scheme and no findings of fact to support unequal distribution.

Cortese v. Cortese, 36 FLW D2272 (Fla. 5^th DCA 2011).  Trial Court reversed for granting husband credit for one half of the mortgage and house related expenses during pendency of divorce because; 1) credit not requested in pleadings, 2) inappropriate to credit husband with payment of these expenses when he is the bread winner and 3) husband’s payments were part of temporary alimony award.

Coleman v. Bland, 36 Fla. L. Weekly D2110; 2011 Fla. App. LEXIS 15174 (Fla. 5^th DCA 2011).  Final Judgment reversed because judgment contained no findings of fact on husband’s pension (i.e. whether it was marital or non-marital).  Remanded only as to disposition of pension.

Jurasek v. Jurasek, 67 So. 3d 1210 (Fla. 3^rd DCA 2011).   Trial court reversed for awarding husband “special equity” in marital residence based upon his investment of non-marital inheritance.  Husband did not overcome presumption of gift.

Joshi v. Joshi, 66 So. 3d 1101 (Fla. 5^th DCA 2011).  Trial court reversed for assigning $1,800 stimulus to Husband in equitable distribution when record contained no support Husband received check.

Vanzant v. Vanzant, 36 Fla. L. Weekly D1797; 2011 Fla. App. LEXIS 12794 (Fla. 1^st DCA 2011).  Trial court reversed for failing to make equalizing payment.  No findings of fact to support unequal distribution.  Trial court’s valuation of business reversed when not supported with findings and it looks like Court split difference between competing experts.

Bell v. Bell, 68 So. 3d 321 (Fla. 4^th DCA 2011).  Judge Stern reversed for failing to include $660,000 in receivables from Husband’s business.  Court erred in finding house husband inherited from mother as marital even when Husband helped his Mother pay mortgage before she died.

Tummings v. Francois, 36 Fla. L. Weekly D1737; 2011 Fla. App. LEXIS 12556 (Fla. 2^nd DCA 2011).  Trial Court reversed for including Wife’s bonuses in equitable distribution scheme.  It is error to include assets that have been dissipated or diminished during the pendency of action.  An exception exists is dissipation is based on misconduct.  Court must make finding of intentional dissipation or destruction resulting from intentional misconduct.

Morenberg v. Morenberg, 65 So. 3d 1199 (Fla. 4^th DCA 2011).  Judgment requiring Husband to equally divide all future text book roya­­­lties reversed on Husband’s fourth edition of text book which was started after divorce was filed.  A former spouse in not entitled to receive benefits that accrue after dissolution.

Bush v. Bush, 65 So. 3d 1101 (Fla. 2^nd DCA 2011).   It was error to award Wife with full value of account which was depleted during pendency of divorce.  Wife was not awarded temporary alimony and Court made no finding of misconduct or waste.

Demont v. Demont, 67 So. 3d 1096 (Fla. 1^st DCA 2011).  Trial court affirmed for rejecting wife’s claim husband depleted accounts during pendency when husband demonstrated monies spent were not for his own personal enjoyment but to pay usual and customary household and other family expenses established during marriage.  Court erred in classifying payment for non-compete after divorce as compensation was based on future promises as opposed to marital labor.

Mills v. Mills, 62 So. 3d 672 (Fla. 2^nd DCA 2011). Court reversed for failing to include assets purchased post filing  that were funded by the sale of marital assets.  Further, Court failed to provide findings of fact to support depletion of marital funds were for living expenses pf parties as opposed to property distribution.

Fuentes v. Fuentes, 59 So. 3d 1204 (Fla. 2^nd DCA 2011).  Equitable distribution reversed because Court failed to allocate $40,000 Husband withdrew during proceedings.  If Court meant unequal distribution, findings of fact are required.  Court should also address Husband’s claim money was spent on family living expenses and he should not be credited with the amount in property division.

Fortune v. Fortune, 36 61 So. 3d 441 (Fla. 2^nd DCA 2011).  Error to classify $150,000 “loan” made from Husband to his employer as marital liability just before filing.  Only corroborating evidence was affidavit of employer of affidavit.  Affidavit should not have been admissible and there was no other evidence supporting Husband’s contention.

Lacoste v. Lacoste, 58 So. 3d 404 (Fla. 1^st DCA 2011).  Trial Court’s award of unequal distribution based on 1) short term marriage and 2) party used non-marital assets to enhance.

Brathwaite v. Brathwaite, 58 So. 3d 398 (Fla. 1^st DCA 2011).  Trial Court reversed for classifying entire military retirement as marital when most of it was earned before marriage.

Kight v. Kight, 61 So. 3d 415 (Fla. 3^rd DCA 2011).  Trial Court reversed for treating $6,000.00 contribution to IRA made after date of filing as marital property.

Wagner v. Wagner, 61 So. 3d 1141 (Fla. 1^st DCA 2011).  Trial Court reversed for failing to distribute home furnishings even when neither party presented evidence of value.  Court has to categorize and value, even if no evidence.  Unequal distribution without explanation reversed.

Orloff v. Orloff, 67 So. 3d 271 (Fla. 2^nd DCA 2011).  Trial Court reversed for classifying husband’s business as marital.  Entity was formed as sole proprietorship and incorporated before marriage.  After marriage, husband re-incorporated in Florida.  This did not make company marital and new Florida corporation came from assets acquired before marriage.

David v. David, 58 So. 3d 336 (Fla. 5^th DCA 2011).  Trial Court reversed for unequal distribution of credit card debt based upon disparity of income of parties.

Kaaa v. Kaaa, 58 So. 3d 867 (Fla. 2011).  Revised opinion.  Adopts Stevens. Formula for passive appreciation for a non-marital property.

Lee v. Lee, 56 So. 3d 819 (Fla. 2^nd DCA 2011).  Equitable Distribution reversed because it failed to delineate marital and non-marital property and not all assets are assigned values.  Further, the findings an unequal distribution is “equitable under the circumstances” is insufficient to articulate basis for unequal distribution.

Randall v. Randall, 56 So. 3d 817 (Fla. 2^nd DCA 2011).  Trial Court erred in awarding engagement ring to former husband because engagement ring is generally a premarital gift.  In addition, husband listed ring as wife’s non-marital property on his financial affidavit.

Belford v. Belford, 51 So. 3d 1259 (Fla 2^nd DCA 2011).  Trial Court reversed for charging Husbad wirh $44k depleted during pendency.  In the absence of misconduct, it is error to cha­­rge to a party’s share of equitable distribution assets dissipated during the dissolution proceeding.

Dybalski v. Dybalski, 52 So. 3d 825 (Fla 5^th DCA 2011).  Trial court affirmed for modifying a judgment of consent when issue wasn’t really resolved and matter was tried by consent.  Court reversed for unequal distribution without adequate explanation.

Santiago v. Santiago, 51 So. 3d 637 (Fla 2^nd DCA 2011).  Unequal equitable distribution reversed when Court failed to value marital waste.  Remanded for Court to determine actual amount of waste.

Tilchin v. Tilchin, 65 So. 3d 1207 (Fla. 2^nd DCA 2011).   Trial court reversed for awarding disproportionate share of property distribution when husband paid off a mortgage on a residence during the pendency of the action.

Income:

Beasley v. Beasley, 36 Fla. L. Weekly D2680 (Fla. 4th DCA December 7, 2011). Trial Court affirmed for imputing $50,000 per year when Former Wife never grossed more than $25,000 a year as a landscape architect. In this case, the evidence showed that Former Wife chose not to use her degrees, license, and 25 years of marketing experience to actualize her earning capability. Former Wife’s hourly billing was below market rate. Former Husband’s vocational expert testified that Former Wife was well qualified as a landscape architect and had skills that exceeded a typical landscape architect. The median income for landscape architects was $59,638 at the time of trial. Former Wife had not sacrificed her career to rear children, to maintain a home, or to promote Former Husband’s career. In the final judgment, the trial judge concluded: “There is no question from the evidence that the wife has made little or no effort to earn an income consistent with the level of her work experience, education, and ability for years prior to and during the pendency of this divorce litigation.” The judge’s finding that Former Wife is capable of earning $50,000 a year is reasonable and supported by competent substantial trial evidence. Trial Court affirmed for denying permanent alimony in 21 year marriage and awarding bridge-the-gap alimony for 1 year.

Torres v. Torres, 36 Fla. L. Weekly D2151; 2011 Fla. App. LEXIS 15254 (Fla. 2^nd DCA 2011).  Order imputing income reversed when no basis to impute in judgment.  Mere allegations of employability do not constitute competent substantial evidence to impute income.  Here former husband did not take exceptions.  Appellate court reversed because it is clear on judgment findings were insufficient to support imputation.

Halawy v. Halawy, 67 So. 3d 447 (Fla. 2^nd DCA 2011).  Support order reversed when both parties imputed minimum wage income and Husband had to pay full obligation for both incomes.  Wife had conceded error.

Cissel v. Cissel, 36 Fla. L. Weekly D1351; 2011 Fla. App. LEXIS 9602 (Fla. 4^th DCA 2011).  Finding of income reversed when court failed to deduct undisputed legitimate business expenses and including income of a non-recurring nature.

Fuesy v. Fuesy, 64 So. 3d 151 (Fla. 2^nd DCA 2011).  Trial court’s determination of wife’s income reversed when it failed to include wife’s voluntary retirement contributions.

Mudafort v. Lee, 62 So. 3d 1196 (Fla. 4^th DCA 2011).  Trial court’s imputation to wife of $500 per week reversed when no evidence to rebut wife’s testimony of her income.  The burden of proof is on the party seeking to impute.

Fischer v. Fischer, 55 So. 3d 725 (Fla. 5^th DCA 2011).  Trial Court affirmed for imputing income of $60,000 to Husband when Husband represented he made $45,000 in income on loan application, he had additional rental income and had 2 new jobs.

Jurisdiction:

Gray v. Bresler, 53 So. 3d 1043 (Fla. 4^th DCA 2011).  Judge Stein affirmed for denying husband’s motion to vacate final judgment based on fact he was not Florida resident 6 months prior to filing.  Wife filed counter-petition 6 months after husband moved to Florida which satisfied residency requirement.

Miscellaneous:

Irvin v. Irvin, 36 Fla.L.Weekly D2667 (Fla. 2^nd DCA 2011).  Trial court reversed for failing to hold Former Husband in contempt when he failed to pay Former Wife her share of receivables from a note.  Parties settled divorced and agreed proceeds would be divided.  A modification was filed and resolved and provided all unmodified provisions in first provision remain in effect.  Modification did not involve receivables and Former Wife did not divest her interest.

Matteis v. Matteis, 36 Fla. L. Weekly D2029; 2011 Fla. App. LEXIS 14561 (Fla. 4^th DCA 2011).  Judge Burton reversed for failing to resolve issues with marital home.  Remanded for clarification of payment of expense pending sale as well as contingency if house does not sell in specified period.

In Re: Oath of Admission to Florida Bar, 36 Fla. L. Weekly S505 (Fla. 2011).  Adds to oath;  “To opposing parties and their counsel, I pledge fairness, integrity and civility, not only in Court, but also in written and oral communications”.

Comstock v. Comstock, 36 Fla. L. Weekly D1742; 2011 Fla. App. LEXIS 12505 (Fla. 4^th DCA 2011).  Final post judgment order enforcing mediated agreement which was not approved by court in an order or judgment was affirmed in part and reversed in part.  Issues concerning property enforcement are enforceable under contract law.  That part of judgment affirmed.  Portion enforcing issues relating to child custody and support reversed because court never determined stipulation to be in children’s best interest.

Estate of King v. King, 67 So. 3d 387 (Fla. 4^th DCA 2011).  Trial court reversed for denying Husband’s estate’s motion to substitute in seeking to enforce final judgment on a property issue.  Here, Husband died after entry of final judgment and Court reserved jurisdiction.  This was not a claim against the estate.  Rather, the estate was making a claim against the Former Wife.

Taylor v. Taylor, 67 So. 3d 359 (Fla. 4^th DCA 2011).  Trial court’s order denying 1.540 motion for relief from judgment reversed because husband never received notice of final hearing therefore judgment is void.  Wife’s claim her attorney mailed notice of final hearing to husband’s last known address pursuant to Rule 1.080 defeated on rebutted evidence wife led husband to believe she was not pursuing divorce.

Foster v. Foster, 36 Fla. L. Weekly D1486; 2011 Fla. App. LEXIS 10653 (Fla. 5^th DCA 2011).  Final judgment requiring life insurance to insure alimony obligation reversed because court failed to make findings of facts regarding availability and cost of insurance, obligor’s ability to pay, and special circumstances that warrant requirement of security.

Glanz v. Glanz, 63 So. 3d 936 (Fla. 4^th DCA 2011).  Judge Burton reversed for refusing to strike a lis pendens on a property titled in name of a business owned by husband.  Because business was not a named party, court had no jurisdiction.

Ross v. Ross, 61 So. 3d 479 (Fla. 4^th DCA 2011).  Court reversed for violating Perlow rule and adopting parties’ proposed order verbatim and not providing other party opportunity to review or object.

Fortune v. Fortune, 61 So. 3d 441 (Fla. 2^nd DCA 2011).   Error to deny Wife’s request to restore maiden name.

Teague v. Gritman, 67 So. 3d 284 (Fla. 5^th DCA 2011).  Motion to disqualify judge based on events at hearing two months prior rendered motion legally insufficient.  Motion must be filed within 10 days.

Hughes v. Krueger, 67 So. 3d 279 (Fla. 5^th DCA 2011).  Trial Court reversed for ordering an accounting on a property two divorced people owned as tenants in common.  The husband was using the property for his business and never excluded, ousted former wife from property.  A tenant in common who has exclusive possession of real property and uses it for his own benefit is not liable or accountable to a co-tenant out of possession unless possession is adverse or result of ouster.

Hill v. Hill, 36 Fla. L. Weekly D475; 2011 Fla. App. LEXIS 11777 (Fla. 3^rd DCA 2011).  Court reversed for awarding alimony after reserving jurisdiction for 18 years.  Court never determined need or awarded nominal alimony.  No limited or reasonable duration on reservation.

R.M.F. v. D.C., 55 So. 3d 684 (Fla. 2^nd DCA 2011).  Appeal with no transcript.  Lack of transcript precludes review of visitation.  Attorney fees reversed due to lack of findings.

Sullivan v. Hoff-Sullivan, 58 So. 3d 293 (Fla. 1^st DCA 2011).  Florida trial court reversed  for interpreting child support provisions when exact issue was previously litigated in Georgia based on res judicata.

Schang v. Schang, 53 So. 3d 1168 (Fla. 1^st DCA 2011).  Trial court reversed for issuing final judgment over a year after trial and judgment did not reflect full and accurate consideration of pertinent facts.

Beharry v. Drake, 52 So. 3d 790 (Fla 5^th DCA 2011).  Trial Court affirmed for adopting proposed judgment verbatim.  Requirement to maintain life insurance in excess of support obligation reversed.

Modification:

Khutorsky v. Ilina, 36 FLW D2715 (Fla. 3^rd DCA 2011).  Trial court reversed for requiring Former Husband to pay portion of private school when only relief requested was former husband’s request to remove restriction to live in particular school district.  When relief is not sought in pleadings, it should not be granted, unless tried by consent.

Buhler v. Buhler, 36 FLW D2653 (Fla. 5^th DCA 2011).  Trial Court reversed for modifying child support retroactive to date of filing when it should have modified it retroactive to date parent first failed to regularly exercise court ordered visitation.

Delivorias v. Delivorias, 36 FLW D2711 (Fla. 1^st DCA 2011).  *Clarifying opinion.  Order on contempt providing modification of final judgment affirmed even when trial court failed to include “magic words of a substantial change of circumstances.   Here, competent substantial evidence supports the result and trial court’s failure to explain reasoning does not compel reversal if it is readily apparent why the trial court ruled in the manner it did.

Crowell v. Crowell, 36 FLW D2336 (Fla. 5^th DCA 2011).  Final judgment dismissing modification entered after opening statements but before the introduction of evidenced reversed.  Party who makes sufficient allegations in pleading is entitled to evidentiary hearing.

Simpson v. Simpson, 68 So. 3d 958 (Fla. 4^th DCA 2011).  Modification of alimony reversed after Husband suffered temporary unemployment, even though Wife acquiesced to modification in an email because she did not have full disclosure of husband’s income and Husband would not have otherwise passed Pimm test.  A temporary reduction may have been appropriate if Husband suffered temporary loss of income without deliberately seeking to avoid alimony and acting in good faith to return income to previous level.

Ragle v. Ragle, 36 Fla. L. Weekly D1790; 2011 Fla. App. LEXIS 12738 (Fla. 1^st DCA 2011).  Order modifying custody reversed when based on Mother’s decision to relocate 28 miles, failure to allow frequent and liberal timesharing, and unilaterally changing school.  A desire to relocate is not a substantial change in circumstances.  Parties’ inability to co-parent does not constitute change.  Trial court failed to make findings of fact and record did not support contention of visitation interference.

Estate of Reale v. Horwitz, 67 So. 3d 1145 (Fla. 3^rd DCA 2011).  Trial court affirmed for bringing alimony modification to an end after former husband’s death and denying attorney fees occurred post mortem.  However, order denying fees pre mortem reversed.

Talbi v. Essoufi, 65 So. 3d 1207 (Fla. 2^nd DCA 2011).  Portion of final judgment which provides a list of specific tasks Wife needed to complete to modify custody does not limit or prohibit future court from considering traditional modification factors governed by case law in determining future modifications.  Courts cannot modify appropriate standard to be used in future modifications.

Hahn v. Hahn, 66 So. 3d 345 (Fla. 4^th DCA 2011).  Order modifying alimony from $1,000 to $450 reversed when based on court’s finding of fact, former husband lacked ability to pay any alimony at all.

Bachman v. McLinn, 65 So. 3d 71 (Fla. 2^nd DCA 2011).  Trial court reversed for applying 61.13 as amended in 2008 in reaching ultimate conclusion on modification as opposed to heavy burden required to modify judgment.  Error to apply new statute as if it were initial determination.

Shelden v. Shelden, 63 So. 3d 78 (Fla. 2^nd DCA 2011).  Crazy procedural nightmare of a case involving two pro se litigants.  Court ultimately reversed for accepting magistrate’s report where Husband had burden but was not permitted opportunity to present evidence.

Poe v. Poe, 63 So. 3d 842 (Fla. 5^th DCA 2011).  Trial court affirmed for modifying support based on Husband’s testimony he lost job based on Husband’s testimony he lost job one month after the final judgment and change was not anticipated, even though credible evidence supported contention Husband lost his job the day before he signed the agreement, and therefore the change was anticipated.  Credibility of witness is within trial court’s exclusive purview.

Denker v. Debroski, 60 So. 3d 1104 (Fla. 4^th DCA 2011).  Judge Stern affirmed for modifying custody when former wife did not attend final hearing or present evidence.  Here, case was not decided by default.  There was a full presentation of evidence that supported Court’s decision.

­­­Morrison v. Morrison, 60 So. 3d 410 (Fla. 2^ndDCA 2011).  Upward modification reversed when circumstances did not meet “Bedell” exception.   Bedell exception allows an upward modification upon a change in circumstances when court was legally obligated to order an amount of alimony that did not meet the needs of the recipient in original final judgment, based on standard of living at marriage, due to payor’s limited ability.  In case at hand, parties entered into a settlement agreement (and contractually agreed on alimony amount).  Court further erred in finding former husband’s income increased based on temporary trust payments that were known about when parties entered into original settlement.

_­­Doran v. Doran, 49 So. 3d 1290 (Fla 1^st DCA 2011).  Order denying custody modification reversed when party was not allowed to present evidence of abuse.   Remanded for new trial.

Parenting:

Sparks v. Sparks, 36 FLW D2760 (Fla. 1^st DCA 2011).  Trial Court’s final judgment reversed because trial court did not allow Father to challenge whether parenting aspects of settlement agreement were in best interests of child.  Trial Court’s responsibility cannot be abdicated to any parent or expert.

Cheek v. Hesik, 36 FLW D2378 (Fla. 1^st DCA 2011).  Trial Court’s order on contempt awarding former husband 150 consecutive days of makeup time sharing reversed in part when not found to be in child’s best interest and order basically changed child’s residence and allowed relocation.  No error in trial court’s determination that former husband was entitled to makeup time sharing.  Further 61.34(4)( c) unequivocally provides Court SHALL award sufficient amount of extra timesharing to compensate for time missed.

Otto-Jones v. Jones, 36 Fla. L. Weekly D1941; 2011 Fla. App. LEXIS 13893 (Fla. 2^nd DCA 2011).  Order requiring child to attend private school for first half of school year and public school for second half reversed when no evidence to support rotating custody in child’s best interest.  Remanded for court to decide appropriate school.

Bainbridge v Pratt, 68 So. 3d 310 (Fla. 1^st DCA 2011).  Order rotating custody on an annual basis reversed.  Neither party requested this arrangement.  Despite trial court using magic words that this arrangement was in child’s best interest, there is no record evidence to support trial court’s conclusion.

Leneve v. Leneve, 64 So. 3d 196 (Fla. 4^th DCA 2011).  Judge Brunson reversed for denying motion to dismiss motion invoking Keeping Children Safe Act, Section 39.0139, Florida Statutes.  This does not apply to Chapter 61 proceedings and other courts have found statute unconstitutional.

A.M.M v. J.M.M, 63 So. 3d 910 (Fla. 2^nd DCA 2011).  Order awarding grandmother temporary custody under Chapter 751 reversed as facially deficient.  It appears court decided issue solely on default.  A mother’s fundamental liberty interest in care, custody and management of their child cannot be taken because she failed to file pleadings or hire an attorney.  Court required to provide findings that mother abused, neglected, or abandoned clear child by clear and convincing evidence as opposed to relying on default.

Mudafort v. Lee, 62 So. 3d 1196 (Fla. 4^th DCA 2011).  Statutory changes in past few years have abrogated any judicial presumption against equal time-sharing.

Sotero v. Sullivan, 60 So. 3d 512 (Fla. 3^rd DCA 2011).  Non final order appointing parental coordinator reversed because it delegated authority to make binding decision to therapist, allowed therapist to impose monetary sanctions and waived confidentiality.

Straney v. Floethe, 58 So. 3d 374 (Fla. 2^nd DCA 2011)/  Trial Court reversed for granting modification after considering factors in 61.13(3).  Court must find substantial change of circumstances since entry of final judgment.

Winters v. Brown, 51 So. 3d 656 (Fla. 4^th DCA 2011).  Court affirmed for granting Father exclusive decision making on health/medical issues because Mother was proponent of holistic medicine who believed anything introduced into the body to prevent disease or illness is against God’s will.

Arcot v. Balaraman, 57 So. 3d 907 (Fla. 5^th DCA 2011).  Trial Court reversed for interpreting visitation schedule to provide husband had only 2 exclusive weeks in summer.  Parties alternated weekends and per agreement that was only superseded by holidays.

Paternity:

P.G. v. E.W., 36 FLW D2577 (Fla. 2^nd DCA 2011).  Order denying disestablishment of paternity reversed.  Even though Father had primary residency, he is a male ordered to pay support because he was ordered to share in health expenses.  Did not require newly discovered evidence other than DNA test.  Conflicts with Hooks v. Quaintance.

Hooks v. Quaintance,  36 Fla. L. Weekly D2214 (Fla. 1^st DCA 2011).  Petition to disestablish paternity reversed because petitioner did not allege “newly discovered evidence”.  In this case, the alleged Father knew there was 50% chance he was not father when paternity established.  Newly discovered evidence is evidence that by due diligence could not have been discovered in time to more for a new trial or rehearing.  Here because alleged father did not challenge paternity initially, he lost chance to disestablish, even though he has a DNA test that proves he is not the biological father.

McKee v. Sinco, 36 Fla. L. Weekly D2162; 2011 Fla. App. LEXIS 15436 (Fla. 5^th DCA 2011).  Even though parties still reside together, Court affirmed for requiring Father to pay pro rata share of health insurance, day care and agreed upon extracurricular activities.

Slowinski v. Sweeney,  64 So. 3d 128 (Fla. 1^st DCA 2011).  J.S. and C.L. v. S.M.M., 36 Fla. L. Weekly D1941 (Fla. 2^nd DCA 2011).  Order giving putative father standing to seek genetic testing quashed when child born into intact marriage.

DOR v. Kathcart, 36 Fla. L. Weekly D1880 (Fla. 4^th DCA 2011).  Non-final order requiring genetic testing quashed when respondent signed acknowledgment of paternity and paternity was not at issue.  Child was born in intact marriage.  Judgment awarding custody to biological father reversed as fundamental error.  A putative father has no cause of action to challenge child’s paternity.

Calloway v. Shirley, 61 So. 3d 1240 (Fla. 1^st DCA 2011).  Order on paternity changing name of child to Father reversed becaused there was no evidence it was in the child’s best interest.

DOR v. Robinson, 67 So. 3d 442 (Fla. 1^st DCA 2011).  Trial Court reversed for ordering DNA testing when paternity not an issue.

DOR v. Lynch, 53 So. 3d 1154 (Fla. 1^st DCA 2011).  Trial court reversed for ordering genetic paternity testing in post judgment case where there was no disestablishment action pending.

Procedure:

Rodriguez v. Santana, 36 FLW D2732 (Fla. 4^th DCA 2011).  Trial Court reversed for entering final judgment of paternity at a hearing scheduled as status conference.  This violated due process.

Miranda v. Munoz-Ortiz, 36 FLW D2699 (Fla. 2^nd DCA 2011).  Final order on parental responsibility reversed when Father was incarcerated and denied opportunity to participate in evidentiary hearing telephonically.

Frady v. Deringer, 36 FLW D2678 (Fla. 4^th DCA 2011).  Trial court’s order granting relief from judgment 7 years after entry reversed.  A certificate of service raises a presumption of delivery.  A denial of receipt does not overcome presumption.  Evidentiary hearing is necessary.

In Re: Fla. Family Law Rules, 36 FLW S646 (Fla. 2011).  New forms for notice of action of dissolution of marriage, and notice of family law case with minor child.

Achurra v Achurra, 36 Fla. L. Weekly D2104; 2011 Fla. App. LEXIS 15029 (Fla. 1^st DCA 2011).  Income deduction order used to garnish husband’s pay to replenish children’s college funds reversed as that is an obligation that may not be enforced by income deduction order.  IDO’s may only be used to collect support and attorneys fees related to support.

In Re: Amendments to Fla. SC Forms, 36 Fla. L. Weekly S547 (Fla. 2011).  New family law forms that include disability notice pursuant to Rule of Judicial Administration Rule 2.540.

Smith v. Smith, 36 Fla. L. Weekly D1379 (Fla. 4^th DCA 2011).  Judge Makemson reversed for allowing husband to obtain wife’s medical therapy records because wife attempted suicide ten (10) months prior to filing petition.  Remanded for an evidentiary hearing to determine whether mental health is at issue.  If not, court should order psychological examination.

In Re: Rules of Family Law Procedure, 36 Fla. L. Weekly S267 (Fla. 2011).  Approved new Income Deduction Order (“IDO”) form.  Also confirms IDO payments must be made through support depository.

Swor v. Swor, 56 So. 3d 825 (Fla. 2^nd DCA 2011).  Retroactive child support reversed due to erroneous calculation.  Court included alimony Wife never received in making calculation.

Webber v. Webber, 56 So. 3d 822 (Fla. 2^nd DCA 2011).  Court erred by making support retroactive to date custody changed (January 2007) when it should have been on date modification (May 2007).

Roth v. Cortina, 36 Fla. L. Weekly D457 (Fla. 3^rd DCA 2011).  Order denying attorney’s motion to withdraw reversed.  Approval by the Court should be rarely withheld and then only upon a determination that to grant withdrawal would interfere with efficient and proper functioning of the Court.

Laussermair v. Laussermair, 36 Fla. L. Weekly D448 (Fla. 4^th DCA 2011).  Judge Brunson reversed for dismissing petition for upward modification based on attorney’s “representation” former husband was unemployed at hearing.  Representation by attorney exceeded the four corners of the petition.

Spano v. Bruce, 62 So. 3d 2 (Fla. 3^rd DCA 2011).  Trial Court reversed for awarding retroactive relief to date of amended petition as opposed to date of filing.  Need for modification was present at time of filing.

Relocation:

Kish v. Kish, 36 Fla. L. Weekly D2228 (Fla. 5^th DCA 2011).  Relocation to California affirmed.  However, order remanded to Court to include detailed visitation schedule relocation was premised on.

Wraight v. Wraight, 36 Fla. L. Weekly D1898; 2011 Fla. App. LEXIS 13492 (Fla. 5^th DCA 2011) .  Relocation to UK affirmed.  So long as trial court make findings of fact, appellate court cannot re-weigh evidence.

Valqui v. Rodriguez, 36 Fla. L. Weekly D1855; 2011 Fla. App. LEXIS 13230 (Fla. 3^rd DCA 2011).  Relocation of child from Florida to California affirmed as appellate court could not find an abuse of discretion.  Entire order under appeal published.  Good pro-relocation case.

Rossman v. Ghuman-Profera, 67 So. 3d 363 (Fla. 4^th DCA 2011).  Order modifying custody to Father affirmed when final judgment contained a provision prohibiting relocation and Mother Mata v. Mata, 36 FLW D2465 (Fla. 3^rd DCA 2011).  Trial Court’s order granting emergency motion to permit temporary relocation reversed as it did not hold  evidentiary hearing as required by statute.

A.F. v. R.P.B., 36 FLW D2414 (Fla. 2^nd DCA 2011).  61.13001 does not apply where wife lived in Florida and Husband lived in Pennsylvania.  New version of statute only applies if one parent seeks to relocate with child.

Rossman v. Ghuman-Profera, 67 So. 3d 363 (Fla. 4th DCA 2011).  Order modifying custody to Father affirmed when final judgment contained a provision prohibiting relocation and Mother ignored provision and relocated child anyway.  Analysis is fact intensive.  Mother moved after Father objected to notice of intent to relocate.  Mother said she would not return to Florida regardless of Court’s decision.  Father was active in child’s life, talking to her every day, coaching her sports team, regular visitation, camping trips.  Granting relocation solely on best interests of party (as opposed to child) is reversible.  Trial court’s decision denying relocation affirmed Modification also affirmed even the Court did not state “a substantial change in circumstances occurred”.  Change of circumstances can be found in trial court’s detailed findings.  Generally, Court’s cannot base substantial change on relocation alone.  This is different, Mother has already relocated, FJ prohibited relocation and Mother stated she would not return.

Orta v. Suarez, 63 So. 3d 936 (Fla. 4^th DCA 2011).  Trial court’s order denying relocation reversed.  Very lengthy relocation opinion.  In this case, wife met her burden because parties always intended to relocate to California where wife had dental license and could work.

Raulerson v. Wright, 60 So. 3d 487 (Fla. 1^st DCA 2011).  Trial Court reversed for granting relocation when petitioner failed to strictly comply with 61.13001.

Galpern v. DOR, 58 So. 3d 438 (Fla. 4^th DCA 2011).  Trial court reversed for purge provision required father to pay $700 immediately and $20,000 every sixty days thereafter when only evidence of ability was father made $400 a week plus commissions plus food stamps.  Order is facially deficient.

Arthur v. Arthur, 54 So. 3d 454 (Fla. 2011).  Revised opinion.  Trial Court reversed for granting relocation when 16 month old turns 3.  Court does not have a crystal ball.

UCCJEA:

Schaffer v. Ling, 36 Fla. L. Weekly D2152 (Fla. 4^th DCA 2011).  Judge Burton affirmed for dismissing a paternity case where child conceived in Florida but never lived here.  Father sought time sharing and shared parental responsibility.  Florida was not home state of child pursuant to UCJEEA.

Wigley v. Hares, 67 So. 3d 363 (Fla. 4^th DCA 2011). 36 Fla. L. Weekly D1624 (Fla. 4^th DCA 2011).  Order denying petition for return of child affirmed even when Court misapplied Convention when it found child had settled in new environment because Court concluded child would be placed in harm’s way if returned.  Courts can only determine rights per convention and cannot address underlying custody issues.  Trial Court found as fact Father brandished a gun towards Wife and child and Father threatened to kill child.   Detailed discussion of Hague convention.

Douglas v. Johnson, 65 So. 3d 605 (Fla. 2^nd DCA 2011).  Trial court erred in granting non-final order requiring mother to return child to jurisdiction without allowing mother opportunity to challenge subject matter jurisdiction.

Sarpel v. Elflani, 65 So. 3d 1080 (Fla. 4^th DCA 2011).  Judge Burton affirmed for declaring Florida child’s home state when child was in Turkey seven (7) weeks during six-month period.  Trip to Turkey was temporary and no evidence move was intended to be permanent.

Holub v. Holub, 54 So. 3d 585 (Fla. 1^st DCA 2011).  Trial court affirmed for accepting jurisdiction when child lived in Florida for previous six months.  Former husband was allowed to challenge subject matter jurisdiction for the first time on appeal.

No. 4D09-4106

COURT OF APPEAL OF FLORIDA, FOURTH DISTRICT

2011 Fla. App. LEXIS 19534

December 7, 2011, Decided

NOTICE:

NOT FINAL UNTIL DISPOSITION OF TIMELY FILED MOTION FOR REHEARING.

PRIOR HISTORY:

Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm Beach County; John L. Phillips, Judge; L.T. Case No. 502008 DR 009849 XXXXMB.

COUNSEL: Amy D. Shield of Amy D. Shield, P.A., Boca Raton, for appellant.

Robert J. Hauser of Beasley, Hauser, Kramer, Leonard & Galardi, P.A., West Palm Beach, and Odette Marie Bendeck of Fisher & Bendeck, P.A., West Palm Beach, for appellee.

JUDGES: CONNER, J. WARNER  and POLEN , JJ., concur.

OPINION BY: CONNER

OPINION

CONNER, J.

Elizabeth Marshall-Beasley (“Former Wife”) appeals the final judgment dissolving her marriage to James W. Beasley, Jr., (“Former Husband”) following trial as to equitable distribution and bridge-the-gap alimony. Specifically, she challenges six decisions by the trial court: (1) the award of the marital home to her, (2) the amount of employment income imputed to her, (3) the award of bridge-the-gap alimony instead of permanent periodic alimony, (4) the determination of jewelry gifts by Former Husband to be a marital rather than nonmarital asset, (5) Former Husband’s post-petition spending was not waste, and (6) Former Husband’s pre-petition advance distribution of his 401(k) account was taxed properly. We affirm.

Factual Background

The parties were married in 1986. Their marriage lasted 21 years, and they had no children. Former Husband, 66 at the time of trial, historically has earned $400,000 a year as a litigation attorney; he plans to retire in mid-2013 at 70. Former Husband is a 90% shareholder in a small litigation law firm with a negative net worth. He is the only member of the firm who personally guarantees the firm’s lease and line of credit. At the time of trial, Former Husband personally was indebted to Northern Trust for $618,507 that he had borrowed and loaned to the firm.

Former Wife, 50 at the time of trial, has impressive educational and professional credentials. She has a degree from Princeton University in urban policy and planning. During the marriage, she obtained a degree in drafting and design and a master’s degree in landscape architecture. She has been on the State Board of Landscape Architecture since 2002, the highest state regulatory body in the profession, and has served as the chair of that organization.

From 2001 until their separation, the parties enjoyed a comfortable lifestyle. Their pre-petition expenses exceeded their combined income from investments and employment, which required them to invade the principal of their investment accounts. In mid-June, 2008, Former Husband vacated the marital home in Palm Beach (“Bahama Lane”). In August, 2008, he withdrew $450,000 from his 401(k) account to buy a separate local residence. The amount of the funds after income tax was $351,112. Former Husband used a portion of these funds as a down payment on a house in West Palm Beach (“Rugby Road”) in October, 2008. Former Wife petitioned for dissolution on September 1, 2009, and sought exclusive possession of Bahama Lane. Prior to trial, Former Wife decided that she wanted to buy a $1.4 million cottage in Palm Beach and to sell Bahama Lane. Given the stock market and real estate plummets, costs, and depreciation, approximately $9 million marital assets remained for distribution between the parties.

Following trial, the judge awarded Bahama Lane to Former Wife and the Nantucket vacation home to Former Husband; the houses were approximately of equal value. The judge equally divided the assets and gave Former Husband and Former Wife each $4.5 million in real and personal property, including accounts and investments. The judge found Former Wife’s reasonable after-tax needs to be $10,000 per month, and her expected income after taxes to be $12,166 per month, including $50,000 per year of professional income after taxes. The trial judge awarded $4,000 per month bridge-the-gap alimony for a year to give Former Wife time to develop her professional earning ability and to liquidate Bahama Lane.

Legal Analysis

Bahama Lane Residence

Although the trial judge had invited the parties to submit a complete written agreement of equitable distribution, they did not do so. The Joint Equitable Distribution Update that was provided to the judge on the first day of trial testimony was a listing of assets that the parties had valued and those left for the court to determine. The valuations to which the parties stipulated were limited to real property and brokerage accounts and not all their assets for equitable distribution. The judge ascertained that the parties understood that the equitable distribution was to be decided by the court:

. . . I’m not bound at all in the work I’m asked to do on a trial by the request you’ve made about how you would like to have things equitably distributed. That’s something I have to figure out, and I have to have the ability to work with whatever assets and liabilities there are to make it come up fairly and equitably.

Regarding Bahama Lane, Former Wife argues that she and Former Husband entered into a joint stipulation providing that the marital home would go to Former Husband and that the trial judge erred by ignoring their stipulation. She asserts that she cannot afford Bahama Lane’s overhead and that it will not be easy to sell the house, even with aggressive marketing. The parties, however, never “unequivocally agreed or stipulated to the court” to award Bahama Lane to Former Husband. Farrell v. Farrell, 661 So. 2d 1257, 1259 (Fla. 3d DCA 1995). HN3A binding agreement to convey real property from the marital estate to one of the parties requires a writing signed by the parties, or an explicit bilateral stipulation on the record before a court reporter. See § 725.01, Fla. Stat. This alleged joint stipulation had neither, and no agreement was “entered and filed” in accordance with section 61.075(3).

In determining Former Wife’s property and support claims, the trial judge reasoned that she could liquidate Bahama Lane, valued at $1.85 million, within the bridge-the-gap period. Thereafter, Former Wife could relocate, as did Former Husband, to a lower-priced home free of debt. She would be able to support herself with investment income and the sale proceeds from Bahama Lane. Because there was no valid agreement conveying Bahama Lane to Former Husband, the trial judge did not abuse his discretion in making it part of the overall distribution of the marital estate assets.

Imputed Income

Former Wife argues that the final judgment lacks the required findings to impute to her annual income of $50,000, when she never  grossed more than $25,000 a year as a landscape architect. “The standard of review of a court’s decision to impute income is whether it is supported by competent, substantial evidence.” Mount v. Mount, 989 So. 2d 1208, 1209 (Fla. 2d DCA 2008). Former Wife has a Princeton undergraduate degree, two post-graduate degrees, and 25 years of executive business experience.

More than 20 years ago, Former Wife earned $40,000 to $50,000 annually in top managerial jobs. Former Wife’s estimation of her earning capacity, as reported on her professional insurance applications, declined after her first consultation with a divorce attorney. Her last work for a paying client was in 2007. By mid-2009, Former Wife represented that she might be mentally or physically unable to work, although she regularly went to her office. When Former Husband sought discovery on Former Wife’s health issues, they were withdrawn two months before trial.

Former Wife’s hourly billing was below market rate. Despite her extensive marketing background, Former Wife did not create a portfolio, have a website, or photograph her work, and she did minimal advertising and marketing. Her failure to promote herself through standard marketing avenues inhibited her ability to acquire clients, which depressed her income. Jennifer Tighe, a landscape architect and acquaintance of Former Wife, testified at trial that it was important for landscape architects to be aggressive in their marketing efforts in the current economy. She further testified that Former Wife had an advantage procuring government contracts, because Former Wife’s firm is considered to be both minority-owned and a small business.

Former Husband had encouraged Former Wife to advertise and had persuaded her to issue a press release, at his expense, using his firm’s public relations company. Former Wife, however, refused to have photographs taken of her work. She had not joined professional organizations, such as the local chapter of the American Institute of Architects. She also did not take advantage of longstanding contacts for which she had worked previously, such as employment with a worldwide entertainment enterprise and former Florida governor.

Former Husband’s vocational expert testified that Former Wife was well qualified as a landscape architect and had skills that exceeded a typical landscape architect. The median income for landscape architects was $59,638 at the time of trial. Former Wife’s credentials and experience did not support her contention that she could perform at only the lowest percentile of licensed landscape architects. Former Husband’s vocational expert concluded that Former Wife could earn $60,000 at the time of trial as a sole practitioner, which would increase to $112,000 to $150,000 in the near future. If she could not succeed practicing alone, then Former Wife could expect to earn $72,000 as a firm employee. The vocational expert also had located advertisements for employment for which Former Wife was qualified.

Former Wife had not sacrificed her career to rear children, to maintain a home, or to promote Former Husband’s career. Instead, by working full-time as a litigation attorney, Former Husband had financed and encouraged Former Wife’s pursuit of her landscape architecture degree and license. He completely had supported her while she was in graduate school and studied for her license exam. He further had provided her a “lovely” office and encouraged her to develop her practice after completing her degree.

In this case, the evidence showed that Former Wife chose not to use her degrees, license, and 25 years of marketing experience to actualize her earning capability. In the final judgment, the trial judge concluded: “There is no question from the evidence that the wife has made little or no effort to earn an income consistent with the level of her work experience, education, and ability for years prior to and during the pendency of this divorce litigation.” The judge’s finding that Former Wife is capable of earning $50,000 a year is reasonable and supported by competent substantial trial evidence. See Fitzgerald v. Fitzgerald, 912 So. 2d 363, 368 (Fla. 2d DCA 2005) (finding, when former wife had an earning history of up to $57,000 a year, a vocational expert’s testimony was competent substantial evidence that former wife could be imputed $40,900 earning capability a year).

Bridge-the-Gap Alimony

Based on 21 years of marriage, Former Wife contends that the trial judge erred in not awarding her permanent periodic alimony. She further contends that the bridge-the-gap alimony of $4,000 a month for one year, two-thirds of which is required to maintain Bahama Lane, is insufficient to provide financial stability until her investments begin to generate adequate funds, and she can establish her landscape architecture business. “A trial court’s decision on whether to award permanent periodic alimony is subject to an abuse of discretion standard of review.” Hornyak v. Hornyak, 48 So. 3d 858, 861 (Fla. 4th DCA 2010);  [*12] see Mondello v. Torres, 47 So. 3d 389, 396 (Fla. 4th DCA 2010) (noting that “the nature and amount of an award of alimony is a matter committed to the sound discretion of the trial court” (citation, internal quotation marks, and alteration omitted)); § 61.08(2), Fla. Stat. (2009).1 This decision is based on “the needs of the spouse requesting the alimony and the ability of the other spouse to make alimony payments.” Leonardis v. Leonardis, 30 So. 3d 568, 570 (Fla. 4th DCA 2010) (citation and internal quotation marks omitted). “The criteria to be used in establishing this need include the parties’ earning ability, age, health, education, the duration of the marriage, the standard of living enjoyed during its course, and the value of the parties’ estates.” Mallard v. Mallard, 771 So. 2d 1138, 1140 (Fla. 2000) (citation and internal quotation marks omitted).

In the final judgment, the trial judge noted that Former Wife has a net worth of $4.5 million with no marital debts. In addition, Former Husband’s income will be substantially reduced when he retires in 2013 at 70. The parties had no children, and Former Wife’s impressive education, marketing experience, and her own landscape architecture business, as well as being younger with more earning years than Former Husband, would enable her to supplement her income to provide for a suitable standard of living. This court has recognized that HN11″[d]isparity in income alone does not justify an award of permanent periodic alimony” and that “[a]n award of permanent alimony is improper where the evidence does not reflect permanent inability on the part of the wife to become self-sustaining.” Rosecan v. Springer, 845 So. 2d 927, 929, 930 (Fla. 4th DCA 2003) (citation and internal quotation marks omitted). There was no abuse of discretion in the trial judge’s awarding Former Wife one year of bridge-the-gap alimony and not awarding her permanent periodic alimony.

Jewelry Gifts

Former Wife contends that a portion of her jewelry collection was a nonmarital asset, based on a deed of gift given to her by Former Husband. It is undisputed by the parties that all of Former Husband’s jewelry gifts to Former Wife were purchased with marital funds. HN12″Marital assets” include “[i]nterspousal gifts during the marriage.” § 61.075(6)(a)1.c., Fla. Stat.   (2009); see Ruiz v. Ruiz, 548 So. 2d 699, 699-700 (Fla. 3d DCA 1989) (reversing trial court for failing to treat the uncontroverted purchase of jewelry with marital assets as marital property subject to equitable distribution and citing § 61.075 relating to interspousal gifts as declaratory of Florida law). “Under well-established statutory and case law, an interspousal gift during the marriage is a marital asset.” Maddox v. Maddox, 750 So. 2d 693, 694 (Fla. 1st DCA 2000); cf. Gardner v. Gardner, 452 So. 2d 981, 983-84 (Fla. 5th DCA 1984) (“Separate property of a spouse includes assets of one spouse acquired from a source outside or unconnected with the marriage, such as by inheritance, property owned prior to marriage, or gifts from third parties.”). Any gift of jewelry from Former Husband to Former Wife bought with marital assets remains a marital asset. The alleged written deed, which was not admitted into evidence, would confirm solely that an interspousal gift was made. Former Wife introduced no evidence showing an intent to remove the jewelry from the marital estate. Her assertion that the jewelry is nonmarital property is contrary to the plain language of section 61.075(6).

Post-petition Spending

Former Wife had sought an equalization credit of approximately $300,000 after distribution of all assets for Former Husband’s alleged post-petition spending. Former Wife, however, failed to establish that any of Former Husband’s post-petition spending constituted waste. The trial judge concluded that Former Wife’s claim was “not credible” and “not supported by the evidence,” because there was “approximately equal non-wasteful spending by both parties.” Therefore, no credit was “given for the spending differential between the husband and the wife on non-litigation subjects during the pendency of this case.” On appeal, Former Wife asserts that she is entitled to a $73,567 credit for Former Husband’s post-petition spending, based on Former Husband’s concession, which he denies. Because the trial judge did not abuse his discretion in concluding that Former Wife was not eligible for any equalizing post-distribution payment from Former Husband for post-petition spending, we will not disrupt the court’s equitable distribution with an additional monetary credit, when the trial judge found none of Former Husband’s post-petition spending to be waste. See Bush v. Bush, 824 So. 2d 293, 294 (Fla. 4th DCA 2002) (recognizing error to include as part of the equitable distribution scheme a portion of stock options husband had depleted during dissolution proceedings to satisfy couple’s financial obligations).

Pre-petition 401(k) Advance Distribution

Former Wife argues that the trial judge erred in finding that Former Husband’s advance distribution of his 401(k) account was $351,112 rather than $450,000. When Former Husband withdrew $450,000 from his 401(k) to purchase Rugby Road, his bank was required to withhold almost $100,000 for income taxes. Former Wife contends that Former Husband depleted his 401(k) account as a marital asset.

Former Wife received a credit for the net amount of the withdrawal of $351,112 in the equitable distribution. The withdrawal occurred pre-petition, and the resulting income tax liability was incurred at that time. The bank properly withheld income taxes on Former Husband’s withdrawal from his 401(k) account. Former Husband’s certified public accountant testified at trial that there was no depletion because Former Husband was beyond retirement age and his work expectancy. Therefore, his 401(k) account necessarily was going to be withdrawn and taxed. Even Former Wife’s  [*20] certified public accountant viewed Former Husband’s tax-deferred retirement assets as an immediately accessible source of income.

In the final judgment, the trial judge “accept[ed] the treatment accorded the 401(k) withdrawal by husband’s accounting expert . . . as being equitable and accurate.” HN13In an equitable distribution of marital assets, “[t]he trial court’s findings are entitled to the presumption of correctness accorded to trial court judgments where the credibility of witnesses is a factor.” Rafanello, 21 So. 3d at 869 (citation and internal quotation marks omitted). Based on the accounting testimony, the trial judge did not err in determining that Former Husband’s advance distribution of his 401(k) account was $351,000 instead of $450,000, because of the deferred taxes withheld by the bank.

We affirm the trial court’s final judgment as to all issues challenged on appeal.

Affirmed.

WARNER  and POLEN , JJ., concur.

Florida’s legislation passed more legislative changes that modify chapters 61 and 88 Florida Statutes effective July 1, 2011.

1) Florida HB 1111 (2011). Click here to read full text.

Adds definitions to section 88.1011 for convention, foreign country, foreign support order, foreign tribunal, outside this state, person, and record.
Modifies jurisdictional provisions in section 88.2051.

Makes many other updates / changes to Chapter 88 (see text of bill for all changes).

Changes section 88.2061 from enforcement and modification of support order to just enforcement.

Changes 88.2071 from “recognition” to “determination” of controlling support order to determination.

Creates 88.6161 register or modify foreign child support order.

Re-designates part VII of chapter 88 to ”Support Proceeding under Convention”.

Creates 88.7031 which creates relationship between Department of Revenue was recognized agency of United States Central Authority and authorized DOR to initiate certain proceedings.

Creates section 88.7051 which allows petitioner right to direct request establishment or modification of support order, direct request recognition and enforcement of convention support order or support agreement.

Creates 88.7061: registration of convention and support orders.

Creates 88.7071: contest registered convention support order.

Creates 88.7091: recognition and enforcement of convention support order.

Creates 88.7101: foreign support agreement.

Creates 88.7111: modification of convention child support order.

Creates 88.7121: personal information; limit on use.

Creates 88.7131: record in original language, English translation.

Changes cross references in section 61.13, 61.08 to new and modified chapter 88 references.

2) Florida HB 621 (2011) . Click here to read full text.

Amends section 61.13002 to specify a parent’s activation, deployment, or temporary assignment to military service and the resultant temporary disruption to the child may not be the sole factor in a court’s decision to grant a petition for modification of permanent time-sharing and parental responsibility.

a. Work

Be ethical.  An attorney who has no credibility cannot be effective.

Be professional.  Even if you don’t like your opposing counsel, you can still be professional.

These two concepts allow me to sleep at night.  If you are a “pleaser” you chose the wrong occupation as we are in an adversary system that sometimes will not allow you to “please” all involved (or at times, anyone).  So long as you go about doing your business in an ethical and professional manner, treat others as you wish to be treated in similar circumstances, you will find yourself “grounded”.  This makes for good competent lawyer’ing.

b.  Family

Your family is a reflection of you, and you do get out of it what you put into your family.  Much like a garden, the way your family grows is directly connected to the amount of time you devote to them.  Family time can be stressful and sometimes a trial seems less stressful.  But ignore your family and you will find yourself to be half a person.  Ignore a garden and it will become thorny and overgrown, full of weeks and pests; don’t let this happen with your family.  Indulge your family with your time and love and you will help create a warm place that nurtures everyone and gives you untold satisfaction and happiness.

c.  Exercise

For years I neglected my physical health.  Not that I abused my body, I just did not maintain it with proper exercise.  You will be surprised at the mental and physical strength you have if you break a sweat three times a week.  It took awhile for me to find an exercise I enjoy on a regular basis.  What worked for me?  Yoga!  Whatever it is, find some form of exercise you can tolerate and START SWEATING!

D.  Other

Find a cause and champion it.  Do something that matters.  Leave a mark.  Whether it is an activity in the section, church, charitable organization or even your family, make a difference.  Volunteer anywhere -  you won’t find a lack of volunteer opportunities out there.  This is also something you can do with your family that creates an amazing learning experience and environment for everyone.

Learn a hobby.  Become a master at something.  Make the world a better place!

These are some thoughts that work for me and I hope they will work for you.

“The fund was named after Eddie because he was the driving force in raising $20,000 to endow the scholarship,” said Mitch Simmons, Past Grand President of Delta Sigma Pi. 

“Eddie Stephens really led the charge to create this prestigious fund”, said Gregory Koch, CEO and President of the Delta Sigma Pi Leadership Foundation.  “This fund assists students in their education and preparation to become future leaders, and helps build great students of commerce.”

Stephens said he was motivated to raise funds for the endowment because there is a real need to teach business ethics to our future business leaders. “That’s not something you learn in a text book or in class.  I had the fortune of these experiences when I was in college.  I was lucky, I could afford it.  A lot of these kids today, can’t.”

It’s an investment in their integrity and the future of our country, Stephens said.  “I have also raised $20,000 for the Muscular Dystrophy Association.  There are a spectrum of charities that need help.”

Eddie Stephens is a third generation Floridian and a Board Certified Marital & Family Attorney who has been practicing law in West Palm Beach for 15 years.

The Delta Sigma Pi Leadership Foundation provides financial support for Delta Sigma Pi Fraternity’s educational and charitable programs, which assist members to achieve individual and professional excellence within the business community.

 Q: Generally speaking, from your perspective, what has the effect been from the downturn in the economy?

 Judge Brunson: Due to the lack of jobs, people seem to have a lot less money available to them and are not meeting their obligations. Because of that we have more enforcement cases than ever.

 Q: Have the types of Court presentations changed because of the economy?

Judge Brunson: The current economic situation has caused an influx of pro se litigants. There are more people than ever that either can’t afford or choose not to hire an attorney. Our circuit has a self help center where people can get forms and pay for short consultations, but it does become problematic when these individuals ask the Court for relief and are expected to understand the rules in which to present their issues.

 Q: Have you seen many pro se successes?

Judge Brunson: When the parties cooperate, I have seen them continue to reside in a foreclosed home until it is sold. I have seen middle and upper class couples separate very peacefully without attorneys. Money is just money. You either have it, or you don’t.

Q: Have the use of professional experts decreased?

Judge Brunson: I have seen fewer forensic accountants. Attorneys are relying on their clients to value assets and that testimony usually is unsubstantiated. Attorneys have to be very careful to present the appropriate evidence even in the challenging economy.

Q: Any impact of the new child support statute?

Judge Brunson: I haven’t seen people litigate the actual number of overnights… yet. It is helpful when attorneys present proposed final judgments that contain the new required information.

Q: Any advice for family attorneys practicing in these difficult financial times?

Judge Brunson: Good attorneys help cases settle. For those cases that don’t, narrow the issues. The narrower the issue, the easier and more efficient the result with be.  This is a stressful job and at times we don’t get along. Even if you don’t get along with the attorney on the other side, PRETEND TO. Clients pick up on the dissention which feeds their desire to fight. This makes trials go longer and adds to the litigation expenses. It is so much easier when attorneys are professional with each other because it tempers the negative feelings the parties may have.

*Originally printed in Florida Bar Family Section Commentator, Spring 2011

Rocha v. Mendonca, 35 Fla. L. Weekly D1080 (Fla. 3rd DCA 2010).  Trial court reversed for improper interpretation of agreement.  Provision that said Husband transfer retirement to Wife via QDRO did not mean Wife will receive immediate use of funds.  Trial Court erred by “rewriting” settlement agreement.

Gordon v. Gordon, 25 So. 3d 615 (Fla. 4^th DCA 2010).  Judge Brunson affirmed for finding prenuptial agreement valid and free of coercion when Wife had high level of education, and business acumen, was married twice and only had ten (10) days to review agreement.  In addition, Husband failed to disclose a pension with at least $143,000.  This was not to invalidate because Wife had proximate knowledge.  There is a dissenting opinion (Ciklin).

Foster v. Estate of Gomes, 27 So. 3d 145 (Fla. 5^th DCA 2010).  Fact that Husband did not disclose $10,000 asset before prenuptial agreement was signed did not invalidate agreement.

Alimony:

Stanton v. Stanton, 35 Fla.L.Weekly D2750 (Fla. 2^nd DCA 2010).  Temporary alimony in the amount of $75,000 per month reversed when it exceeded Wife’s needs on record.  Temporary alimony must be based on Wife’s needs and not an attempt “to fund the enjoyment of every little luxury enjoyed before the Court”.  Temporary attorneys’ fees of $336,964 also reversed because there was no finding of reasonableness.

Hornyak v. Hornyak, 35 Fla.L.Weekly D2683 (Fla. 4^th DCA 2010).  On rehearing, award of alimony reversed for trial court to determine how much wife could earn full time, when it has been established Wife earns $25,000 part time and there is no reason she can’t work full time.

Suit v. Suit, 35 FLW D2609 (Fla. 2^nd DCA 2010).  Amount of permanent alimony reversed because trial court failed to determine Wife’s true costs of future living arrangements and failed to consider impact of income producing assets awarded to the Wife.  Distinguished from Holley, where Wife primarily received real estate holdings.  Here Wife got the liquid investments.  Trial court affirmed for refusing to impute income to Wife in her mid-50’s in a 23 year marriage where Wife was not employed but operated two small businesses.

Gergen v. Gergen, 35 FLW D2575 (Fla. 1st DCA 2010).  Court erred in reversing jurisdiction to award permanent alimony.  If permanent alimony appropriate but for husband’s lack of ability, trial court should award nominal alimony.  Likewise, reservation to award child support at late date also reversed.

Gremel v. Gremel, 35 Fla.L.Weekly D2291 (Fla. 2^nd DCA 2010).  Trial court reversed for not awarding retroactive alimony or prejudgment interest on alimony arrearages.

Aziz v. Aziz, 35 Fla.L.Weekly D2286 (Fla. 2^nd DCA 2010).  Order of temporary support and alimony reversed when it appears obligation consumes all of Husband’s income.  Here parties were not ready for hearing which caused Judge to handle it almost like a mediation.  While this may have seemed appropriate at the time, there were not enough findings in record to support award.  Normally, temporary awards are those where Judge has greatest discretion.  Still need findings of fact.

Halickman v. Halickman, 35 Fla. L. Weekly D2048 (Fla. 5^th DCA 2010).  Amount of alimony affirmed when Wife had stroke and living with her parents.  Argument focused on Wife’s needs.    Typically, Courts should not consider voluntary assistance of others.  Trial Court properly imputed income based on gifts that are continuing and ongoing, not sporadic, and gifts will continue.  Judge who wrote opinion (Cohen) said he would not have reached same decision, but within Trial Courts discretion.

Hornyak v. Hornyak, 35 Fla. L. Weekly D1960 (Fla. 4^th DCA 2010).  Judge Amy Smith reversed for awarding Wife 3 years of bridge the gap alimony while she re-enters employment.  Here Court found Wife could make $40k a year, but only imputed 25k.  Because she could begin employment immediately, there was no bridge to gap.  Wife’s imputation of income at 35k / year also reversed.

Pearce v. Pearce, 35 Fl. Law. Weekly D1747 (Fla. 3^rd DCA 2010).  Court affirmed for denying permanent alimony in 9 year marriage where wife did not rebut presumption of no permanent alimony in short term marriage.  No rehabilitative alimony was awarded because no rehab plan submitted.  Bridge the gap awarded.

Mondello v. Torres, 35 Fla.L.Weekly D1624 (Fla. 4^th DCA 2010).  Court reversed for failing to award Husband permanent alimony in 16.5 year marriage, Husband is 20 years older than Wife, Wife has grossly higher income, Wife awarded 1.5 million in non-marital assets and Court fails to provide findings of fact per 61.13.  Remanded for further consideration.

Singer v. Singer, 35 Fla.L.Weekly D1551 (Fla. 4^th DCA 2010).  Trial court reversed for failing to reserve jurisdiction to consider overpayment in alimony when parties agreed to cohabitation.  If cohabitation found, and cohabitation clause  allows for termination of alimony, it can be retroactively applied.

Engesser v. Engesser, 35 Fla.L.Weekly D1528 (Fla. 5^th DCA 2010).  5^th recedes from prior opinions rejecting ‘bridge-the-gap’ alimony.  7 year marriage, no kids.  Both parties worked full time throughout marriage.  Former Wife was in automobile accident early in marriage but continued to work until business went out of business.  Trial court affirmed for awarding 1 year bridge the gap at $500 and nominal permanent alimony thereafter.  No transcript.  Previously 5^th DCA rejected bridge-the-gap.

Cohen v. Cohen, 35 Fla.L.Weekly D1417 (Fla. 4^th DCA 2010).  Court affirmed for denying lump sum and bridge the gap alimony for 6 years.  Parties lived lavishly during short term marriage.  Wife could not identify source of income or asset from which alimony could be paid, Wife failed to articulate short term needs and failed to look for a job or otherwise prepare herself for la vida loca (single life).

Biskie v. Biskie, 35 Fla. L. Weekly D1380 (Fla. 1^st DCA 2010).  Court reversed for denying permanent alimony in 15 year marriage, no children, modest lifestyle, lots of debt, house upside down, multiple relocations due to Husband’s work, Wife was 59, earned about a grand a month doing custom embroidery.  Husband was 48 and director of human resources at $67k/year after 20% pay cut.  Fact intensive case which should be moot with new durational alimony.

Lin v. Lin, 35 Fla. L. Weekly D1313 (Fla. 2^nd DCA 2010).  Award of alimony reversed when it included child expenses.  Inappropriate double dipping.

Mcquaig v. McQuaig, 35 Fla. L. Weekly D1158 (Fla. 1^st DCA 2010).  Court affirmed when it failed to deduct business expenses.   No evidence Former Husband had significant business expenses in selling surgical equipment.  Plus Husband had huge personal expenses that he could not explain.  Child Support (61.30) definition of income does not necessarily mean the same as Alimony (61.13) definition of income.

Buoniconti v. Buoniconti, 35 Fla. L. Weekly D1217 (Fla. 2^nd DCA 2010).  Trial Court affirmed for awarding Wife $261k in lump sum alimony as prepayment due to Husband’s history: some unfair unilateral financial decisions, waste, and a current reluctance to work.  Court failed to include income Wife would receive from liquid assets and should have applied a present market value to amount.

Purrinos v. Purrinos, 35 Fla. L. Weekly D1075 (Fla. 3rd DCA 2010).  Court reversed for not awarding alimony in 16 year marriage, 3 school aged kids, because Husband was unemployed.  Remanded for entry of nominal permanent alimony.

Eckert v. Eckert, 29 So. 3d 381 (Fla. 5^th DCA 2010).  Amount of permanent alimony was reversed and remanded after twenty-eight (28) month delay in Final Judgment.  Findings of fact (Husband’s income of between 7,000-12,000) are inadequate.  No findings of Wife’s needs.

Boggess v. Boggess, 35 Fla.L.Weekly D846 (Fla. 3rd DCA 2010).  Alimony modification calculation reversed when it failed to include investment income.  Case remanded.

Garcia v. Garcia, 25 So. 3d 687 (Fla. 4^th DCA 2010).  Court reversed when alimony and Wife’s actual wages exceed her needs.

Valladares v. Junco-Valladares, 30 So. 3d 519 (Fla. 3^rd DCA 2010).  Trial Court reversed for awarding permanent alimony to Wife without considering Wife’s equitable distribution award of $1.25 million and fact Husband was seventy and probably couldn’t work much longer.

Appeals:

Moore v. Moore, 35 FLW D2881 (Fla. 1^st DCA 2010).  Appeal challenging final judgment dismissed as premature because there was no ordered timesharing schedule with third child, which is integrally related.  Therefore, final judgment was not a final order subject to appeal.

Wineglass v. Wineglass, 35 FLW D2668 (Fla. 5^th DCA 2010).  Trial Court affirmed for entering final judgment pursuant to mediated agreement where Husband agreed to pay $150 per month in alimony for ten years.  Because final judgment was lawfully entered in accordance with mediated agreement, Husband is not entitled to relief.  “It is not under the province of judges to say whether a voluntary agreement is fair to one of the contracting parties so long as it does not violate public policy.”  Court also refused to consider pro-se Husband’s asserted non-record facts.

Schwartz v. Schwartz, 35 FLW D2646 (Fla. 3^rd DCA 2010).  Appeal challenging offsets in future child support dismissed without prejudice as premature as child support had not been set yet.

Mize v. Mize, 35 Fla. L. Weekly D1914 (Fla. 1^st DCA 2010).  Husband waived right to challenge insufficient findings of fact by failing to petition for rehearing.

McGuire v. McGuire, 35 Fla. L. Weekly D1936 (Fla. 5^th DCA 2010).  Appeal dismissed because additional judicial labor contemplated.  Order appealed was a 1.540 order acknowledging clerical error and ordering parties to attend mediation to resolve issue.

Pool v. Pool, 35 Fla. L. Weekly D1950 (Fla. 1^st DCA 2010).  Appeal dismissed because Former Husband was challenging non-final order and there was additional judicial labor contemplated.  Court reserved issue to determine child support arrearage amount.

Smith v. Smith,  35 Fla.L.Weekly D1485 (Fla. 2^nd DCA 2010).  Trial court’s mathematical errors on face of judgment regarding equalizing payment and income calculation can be corrected even without transcript.  Court’s decision on parenting, which may have emphasized moral character, must be affirmed without transcript because it requires examination of factual context of determination.

Posner v. Posner,  35 Fla.L.Weekly D1429 (Fla. 4^th DCA 2010).  Trial court reversed for exceeding remand.

Hickey v. Burlinson, 35 Fla. L. Weekly D963 (Fla. 5th DCA 2010).  Order denying motion to temporarily halt visitation is a non-final order subject to appeal.  Fla.App.R.Pro.  Rule 9.130(a)(3)(C)(iii).

Zuberer v. Zuberer, 28 So. 3d 993 (Fla. 2^nd DCA 2010).  Order awarding entitlement but not amount of attorneys’ fees is not a final order subject to appeal.  Thus, appeal dismissed as premature.

MaCartey v. MaCartey, 29 So. 3d 434 (Fla. 2^nd DCA 2010).  Award of temporary alimony affirmed when no transcript.  Without a record of proceedings Court cannot resolve factual disputes.  Question certified: is order awarding fees without finding of reasonable hours/rate fundamentally erroneous?

Jonsson v. Dickinson, 35 Fla. L. Weekly D378 (Fla. 1^st DCA 2010).  Former Husband waived his right to appeal findings of fact when he filed notice of appeal before motion for rehearing was decided.

Attorneys’ Fees:

Campbell v. Campbell, 35 FLW D2484 (Fla. 4^th DCA 2010).  Award of attorney’s fees resulting from default hearing reversed for lack of findings that fee and hours were reasonable.

Perez v. Reveiz, 35 FLW D2843 (Fla. 4^th DCA 2010).  Trial Court reversed for awarding fees when at last hearing Court said they would reserve on the issue of attorneys fees until another hearing.

Phillips v. Ford, 35 FLW D2590 (Fla. 4^th DCA 2010).  Judge Oftedal reversed for awarding temporary fees to Former Wife in a modification because Former Husband “is in a financially superior position”.  There were no findings of the Former Wife’s “needs” which is a necessary element finding of fact.

Koch v. Koch, 35 Fla.L.Weekly D2091 (Fla. 2^nd DCA 2010).  Court award of 57.105 fees affirmed.  At end of case, Court reserved fees, on it’s own initiative, to award attorneys fees.  After, the Husband filed a motion for attorneys’ fees for frivolous litigation.  Motion failed to cite specific legal authority in which fees were sought.  Trial Court has inherent power to award attorney’s fees for bad faith conduct as a sanction against an offending party, even in the absence of statutory authority.  Distinguished from Davidson, because fee originated from Court’s initiative.  Strong dissent as there was not 21 day safe harbor notice.

Conlan v. Conlan, 35 Fla. L. Weekly D2064 (Fla. 4^th DCA 2010).  Trial court reversed for failing to award fees when there was disparate incomes and Wife would have to pay her attorneys which would result in inequitable diminution of her equitable distribution.  Distinguished from Blaine which had a more significant property distribution.  Analysis is fact intensive.

Berg-Perlow v. Perlow, 35 Fl. Law. Weekly D1696 (Fla. 4^th DCA 2010).  17^th appeal between parties.  Award of temporary appellate fees affirmed.  Like temporary relief awards, this is area where judge is granted broadest discretion.

Roshkind v. Machiela, 35 Fla.L.Weekly D1571 (Fla. 4^th DCA 2010). Trial court reluctantly affirmed for denying charging lien to law firm who failed to present independent expert testimony on reasonableness.  Question certified, are experts needed on charging lien hearings?

Herbst v. Herbst, 35 Fla.L.Weekly D1453 (Fla. 4^th DCA 2010).  Trial Court reversed after  awarding Former Wife 75% of income when there is no demonstrated need of the Wife and parties have same disposable income.

Speed v. Ferris, 35 Fla. L. Weekly D1213 (Fla. 2^nd DCA 2010).  Appeal awarding entitlement to attorneys fees dismissed as premature.  Not appealable final order until amount determined.

Tullos v. Tullos, 35 Fla. L. Weekly D1141 (Fla. 2^nd DCA 2010).  Court reversed for awarding Wife 50% of fees without explanation when parties stipulated fees were reasonable.

Baker v. Baker, 35 Fla. L. Weekly D1045 (Fla. 2^nd DCA 2010).  Trial Court reversed for awarding temporary fees without findings of fact as to reasonableness of rate and hours expended.  Appellate court rejected Husband’s contention that matter should not be remanded for further proceedings.

Vitale v. Mitchell, 35 Fla.L.Weekly D822 (Fla. 2nd DCA 2010).  Error to award fees to prevailing party in a modification action when agreement provided prevailing fees to a party upon default.

Brown v. Holmes, 35 Fla.L.Weekly (Fla. 1st DCA 2010).  Order modifying support reversed when no pleading was filed seeking that relief, former wife was not given notice or opportunity to defend.  The mere mention of child support in a proceeding does not authorize the trial court to modify support nor does the mere mention constitute implied consent to try the issue.

Sharon v. Sharon, 35 Fla. L. Weekly D1034 (Fla. 2nd DCA 2010).  Disturbing example of dissolution litigation that has proceeded with little consideration for the need of timely and cost effective resolution of family disputes.  Award of attorneys fees reversed as order contained no findings as to reasonable time or cost.

Greenwald v. Rivkind-Greenwald, 31 So. 3d 250 (Fla. 3^rd DCA 2010).  Trial Court reversed for awarding attorneys’ fees to Wife when she sought permanent alimony in fourteen (14) month marriage, lied about her claim, and Husband offered generous pre-suit settlement.

Gottfried v. Gottfried, 35 Fla. L. Weekly D642 (Fla. 3^rd DCA 2010).  Husband sanctioned for absconding mid trial.  Parties later settle and each agree to pay own attorneys’ fees.  At final hearing Court inquires about sanction, both parties advise matter is settled.  Court holds evidentiary hearing and awards Wife’s law firm $90,000.  Both parties object and appeal.  Trial Court affirmed.

Schneider v. Schneider, 32 So. 3d 151  (Fla. 4^th DCA 2010). Court reversed for denying fees for litigating motion for fees as a matter of law.  Trial Court has wide discretion citing Rosen.

Wallia v. Hodgson Russ LP, 28 So. 3d 987 (Fla. 4^th DCA 2010).  Judge Smith reversed for imposing charging lien prior to final judgment.  Charging lien not ripe until “tangible fruits of attorney’s service” are produced (i.e. final judgment entered).

Child Support:

El-Hajji v. El-Hajji, 35 FLW D2511 (Fla. 2^nd DCA 2010).  Trial court erred in allocating federal dependency exemption directly, rather than requiring custodial parent execute waiver if child support is paid up to date.  It’s OK parties presented no evidence on impact, statute authorizes to consider impact.

Ceccarelli v. Ceccarelli, 35 Fla.L.Weekly D2283 (Fla. 5^th DCA 2010).  Order of support reversed because of lack of findings of fact to support award.

Hill v. Calderin, 35 Fla.L.Weekly D2278 (Fla. 3^rd DCA 2010).  Award of support reversed when Court order existed that provided no support due to equal time sharing, even when there was no transcript.  Where previous order exists, must file a modification.

Heysek v. Heysek, 35 Fla.L.Weekly D2193 (Fla. 2^nd DCA 2010).  Award of child support reversed because Court failed to deduct alimony from gross income.

Whittingham v. Whittingham, 35 Fla.L.Weekly D2145 (Fla. 2^nd DCA 2010).  Order of support reversed when it failed to include findings of fact on parties’ income and made no provisions for health insurance or uncovered medical expenses.

Geddies v. Geddies, 35 Fla. L. Weekly D2006 (Fla. 1^st DCA 2010).  Trial Court affirmed for awarding tax dependency credits and exemptions to non-custodial parent, even though it was not relief requested.  Parent must be current in support.

Wilder v. Wilder, 35 Fla. L. Weekly D1973 (Fla. 4^th DCA 2010).  Judge Stern reversed for temporary support award that exceeds or nearly exhausts Husband’s income.

Hayde v. Hayde, 35 Fl. Law. Weekly D1855 (Fla. 5^th DCA 2010).  Child support reversed when Court failed to award substantial parenting adjustment when Father had more than 40 percent overnights.

Needhamn v. Needham, 35 Fl. Law. Weekly D1801 (Fla. 2^nd DCA 2010).  Child support order reversed because Court did not consider expenses of Wife’s daughter from another relationship expenses.  Wife has another child who lived with her and for whom she did not get child support.  61.30(11) does not provide method for resolution.  Case law provides the trial court may consider this factor and can abuse discretion if it fails to adjust child support to reflect this fact under some circumstances.  Remanded for consideration.

Martinez v. Abinader, 35 Fla. L. Weekly D1316 (Fla. 2^nd DCA 2010).  Trial court reversed for not taking into consideration all sources of income (overtime, income from part time jobs) in determining retroactive child support, alimony and attorneys’ fees.

TJD v. AG, 35 Fla. L. Weekly D1321 (Fla. 2^nd DCA 2010).  Court reversed for $200 downward departure in support .  No findings of fact, or income.  Current arrears cannot be used as basis to deviate.  Finding on amount of arrearages.  No explanation why Court did not accept Mother’s uncontroverted testimony.

Wilcox v. Nunez, 35 Fla. L. Weekly D1145 (Fla. 2^nd DCA 2010).  Trial court reversed, even with no transcript, when Court ordered uncovered health care be split 50/50 and judgment lacked any findings of fact to support award.

Zepeda v. Zepeda, 32 So. 3d 679  (Fla. 2^nd DCA 2010).  When child receives Seminole Indian stipend, Court reversed by requiring Father to pay amount of stipend should it be reduced by Tribe in future.  Court cannot completely bypass child support guidelines.

McKenna v. McKenna, 32 So. 3d 890  (Fla. 4^th DCA 2010).  Trial Court reversed for not awarding Husband child support offset in calculating child support when Court split timesharing and Wife has two (2) children majority of the time, Husband has one (1).

DOR V. Soto, 28 So. 3d 171 (Fla. 1^st DCA 2010).  Court reversed for allowing Father credits on retroactive child support for birthday and Christmas gifts.

Valladares v. Junco-Valladares, 30 So. 3d 519 (Fla. 3^rd DCA 2010).  Child support reversed when Court imputed children’s social security benefits to Wife’s income instead of using it to offset Husband’s child support obligation.

American University of the Caribbean v. Tien, 26 So. 3d 56 (Fla. 3^rd DCA 2010). Interesting case where injunction freezing corporation’s bank account was dissolved.  Good discussion of irreparable harm.

Gelman v Gelman, 24 So. 3d 1281 (Fla. 4^th DCA 2010).  Judge Colbath reversed for requiring Father to pay private school when issue was not pled and Court failed to make findings that parent had ability to pay and “expenses in accordance with the family’s customary standard of living and in the child’s best interest.”

Mankowski v. DOR, 24 So. 3d 714 (Fla. 4^th DCA 2010). Time limit for requesting child support administration hearing is not a jurisdictional requirement and may be extended as equity requires.

Domestic Violence:

Rodman v. Rodman, 35 FLW D2675 (Fla. 1^st DCA 2010).  Injunction against domestic violence quashed because petition did not allege, nor was it established that parties resided in same household pursuant to section 741.30, Florida Statutes.

Fuccio v. Durso, 35 FLW D2665 (Fla. 5^th DCA 2010).  Injunction against domestic violence reversed because parties never resided together (a necessary element).  Matter could not be tried as injunction against repeat violence as no notice was given and matter was not tried by consent.

Sanchez v. Sanchez, 35 FLW D2612 (Fla. 2^nd DCA 2010).  DV injunction reversed when based on unsubstantiated hearsay testimony involving harm to daughter.

DCF v. D.B.D., 35 Fla. L. Weekly D1903 (Fla. 4^th DCA 2010).  Trial Court affirmed after dismissing 39.504 DCF injunction the day after it was entered by another judge.  Per 39.504(2), Court must hold a hearing the next day of judicial business to dissolve or continue injunction.  Burden is on DCF to show why injunction is needed.  Lawyers blasted for not advising Court of related proceedings.

Olin v. Roberts, 35 Fl. Law. Weekly D1705 (Fla. 1^st DCA 2010).  DV injunction affirmed.  Opinion only written to clarify “stalking by law enforcement” and “stalking by use of threat of court” is not included in definition of domestic violence.

Coe v. Coe, 35 Fla.L.Weekly D1594 (Fla. 2^nd DCA 2010).  Entry of domestic violence injunction reversed because it was based on judge’s observations during 3 day custody modification trial and not part of DV record.  DV is a separate proceeding.  Court did not take judicial notice of family law matter.

McCormick v. Shannon, 35 Fla. L. Weekly D993 (Fla. 2nd DCA 2010).  Order denying motion to vacate reversed when Court denied motion summarily and did not allow an evidentiary hearing.  This violates due process.

Hickey v. Burlinson, 35 Fla. L. Weekly D976 (Fla. 2nd DCA 2010).  Domestic violence injunction reversed because no PRESENT competent, substantial evidence to support finding former husband committed domestic violence or former wife had reasonable fear of being a victim of.  Evidence prior to parties’ divorce was too remote to consider.

Coe v. Coe, 35 Fla.L.Weekly D822 (Fla. 2nd DCA 2010).  DV injunction reversed because it was based on testimony in a 3 day modification trial that was a distinct and separate legal proceeding than the DV proceedings.  Previous testimony was not judicially noticed or otherwise made part of the record.

Equitable Distribution:

Jones v. Jones, 35 FLW D2879 (Fla. 1^st DCA 2010).  Trial Court affirmed for discounting value of promissory note between Husband and his Mother by 50%.  Here, there was no expert (which would typically preclude a split the difference resolution) and trial court has broad discretion to fashion equitable distribution.

El-Hajji v. El-Hajji, 35 FLW D2511 (Fla. 2^nd DCA 2010).  Trial court erred in not allocating loan on 401K as marital liability and equitably distributing.

Tyler v. Tyler, 35 FLW D2411 (Fla. 5^th DCA 2010).  Trial Court reversed for using property appraiser’s assessment as opposed to fair market value to determine active appreciation of property.

Van Den Berg v. Van Den Berg, 35 Fla.L.Weekly D2281 (Fla. 5^th DCA 2010).  Reversed judgment declaring pension accumulated over 383 months when marriage was 283 as a complete marital asset “..in light of commingling of the withdrawals deems all of it marital”.

Chehab v. Hamilton-Chehab, 35 Fla.L.Weekly D2241 (Fla. 5^th DCA 2010).  Valuation of unvested stock options reversed due to improper proper methodology for allocation.  Should apply “time rule” from Parry (similar to coverture method):

The numerator should represent the number of months in which marital labor was devoted to earning the award. Here, the numerator would be the number of months between the grant date and the petition filing date. This number will vary because the awards were granted on different dates . . . . The denominator would be the total number of months in which the award was to be earned. Because all of the restricted stock awards at issue have a four-year vesting period, as to those the denominator will always be 48. Determining the denominator for the option grants is less straightforward, because one-quarter of the shares in each option vests every twelve months. Therefore, each grant would entail denominators of 12, 24, 36, and 48, each of which would apply to one-quarter of the shares in the option.

Heysek v. Heysek, 35 Fla.L.Weekly D2193 (Fla. 2^nd DCA 2010).  Trial Court reversed for including non-marital inherited IRA into equitable distribution scheme.  Wife was given $250,000 in temporary support from proceeds from sale of a property.  This was not credited in equitable distribution.  Then Husband was required to pay retroactive support.  Issue remanded as this was double dipping.

Tillman v. Tillman, 35 Fla.L.Weekly D2155 (Fla. 4^th DCA 2010).  Court reversed for valuing Husband’s stock account at time of filing without addressing Husband’s concern the stock account had significant depreciated during pendency.  It was error to include in equitable distribution scheme assets or sums that have been diminished unless depletion was result of misconduct.

Bishop v. Bishop, 35 Fla.L.Weekly D2147 (Fla. 2^nd DCA 2010).   Trial court reversed for crediting Wife with depleted 401(K) funds in equitable distribution scheme when it was undisputed monies were used in support of herself and children.

Kaaa v. Kaaa, 35 Fla.L.Weekly S511 (Fla. 2010).  Resolves conflict with Stevens on what circumstances the passive appreciation of a marital home that is deemed non-marital real property subject to equitable distribution.  Creates fact intensive method to determine whether a non-owner spouse is entitled to a share of passive appreciation and how to calculate proper allocation:

1.      Determine the overall current fair market value of the home.

2.      Determine whether there has been passive appreciation passive appreciation in the home’s value.

3.      Court must determine whether passive appreciation is marital.  Must include findings of fact by the trial court that marital funds were used to pay mortgage and that non-owner spouse made contributions to the property.  Trial court must determine to what extent the contributions of the non-owner spouse affected the passive appreciation of the property.

4.      Determine the value of the passive appreciation that accrued during marriage and is subject to equitable distribution.

5.      Determine how the value is allocated.

“If a separate asset is unencumbered and no marital funds are used to finance its acquisition, improvement, or maintenance, no portion of its value should ordinarily be included in the marital estate, absent improvements effected by marital labor.

If an asset is financed entirely by borrowed money which marital funds repay, the entire asset should be included in the marital estate. In general, in the absence of improvements, the portion of the appreciated value of a separate asset which should be treated as a marital asset will be the same as the fraction calculated by dividing the indebtedness with which the asset was encumbered at the time of the marriage by the value of the asset at the time of the marriage.

If, for example, one party brings to the marriage an asset in which he or she has an equity of fifty percent, the  other half of which is financed by marital funds, half the appreciated value at the time of the petition for dissolution was filed should be included as a marital asset. The value of this marital asset should be reduced, however, by the unpaid indebtedness marital funds were used to service.”

In sum, when the marital home is a non-marital property, but is encumbered by a mortgage which is paid (serviced) with marital funds, the value of the passive, market-driven appreciation that accrues during marriage is marital subject to equitable distribution.Conlan v. Conlan, 35 Fla. L. Weekly D2064 (Fla. 4^th DCA 2010).  Trial court reversed on finding property is marital.  Company that bought property was formed during marriage.  However, property bought with loan unrelated to marriage, the sale of a pre marital property and money from a non-marital company.

Maxwell v. Maxwell, 35 Fla. L. Weekly D2033 (Fla. 4^th DCA 2010).  Equalizing payment conflicted with findings of fact.   Matter reversed to correct math

Odak v. Vitrano, 35 Fla. L. Weekly D1957 (Fla. 4^th DCA 2010).  Trial court affirmed in selecting date of trial for valuation as opposed to date of petition.  Trial court has discretion to disregard Husband’s contradicted testimony.  However, trial court reversed for categorizing severance pay not available at time of filing as a marital asset.  Right to receive severance did not exist at time of filing.  Severance pay received on termination (after filing) is not marital asset.

Furbee v. Barrow, 35 Fl. Law. Weekly D1782 (Fla. 2^nd DCA 2010).  Trial court reversed for failing to make findings of fact determining marital and non-marital assets and liabilities.  Remanded (alimony and fees included) for whole new trial.

Hood v. Hood, 35 Fl. Law. Weekly D1705 (Fla. 5^th DCA 2010).  Unequal distribution due to Husband’s egregious behavior in dissipation of significant marital assets.  However, amount remanded to fix a few computational errors.

Valentine v. Van Sickle, 35 Fl. Law. Weekly D1663 (Fla. 2^nd DCA 2010).  Trial court affirmed for categorizing personal injury proceeds as non marital citing Mazzorana.  Fact that Husband used some of the proceeds for marital expenses not germane.  The fact that Wife deposited check into a new joint account while Husband traveling did not cause it to be marital.  Fact that two large deposits of marital funds into account remanded for purposes of determining commingling.

Valentine v. Van Sickle, 35 Fl. Law. Weekly D1663 (Fla. 2^nd DCA 2010).  Trial court affirmed for accepting Wife’s valuation of the marital home.  Each party is competent to testify to value of property they own.  However, if you don’t bring an expert, you take a calculated risk.  No error found in Court’s decision (i.e. broad discretion).

Mondello v. Torres, 35 Fla.L.Weekly D1624 (Fla. 4^th DCA 2010).  Court reversed for categorizing 50% of judgment with joint and several liability against the Husband and other Defendants as marital liabilities.

McNamara v. McNamara, 35 Fla.L.Weekly D1425 (Fla. 4^th DCA 2010). Trial court reversed for giving Husband $71k credit for insurances and taxes paid on marital home when prenup required him to provide marital home and pay living expenses.

Weiner v. Weiner, 35 Fla.L.Weekly D1425 (Fla. 4^th DCA 2010).  Trial court reversed for accepting Magistrate’s report which denied Former Husband credit for rental value of marital home for period after child emancipated when Court awarded Former Wife exclusive use and possession while child is a minor.  There can be no offset for rental credit during lawful exclusive possession.  Here, lawful possession stopped when child emancipated.

Cohen v. Cohen, 35 Fla.L.Weekly D1417 (Fla. 4^th DCA 2010).  Court affirmed for finding Husband did not intend gift by depositing non-marital funds into jointly titled account.  Husband explained accounts were to handle his non-marital business affairs and Wife’s name was on account for emergency purposes.  Shows Court has broad discretion.

Davis v. Davis, 35 Fla. L. Weekly D1375 (Fla. 1^st DCA 2010).  Court reversed for finding special equity in marital residence owned prior to marriage but was titled by entireties.  No findings of fact that would support unequal distribution.

Lilly v. Lilly, 35 Fla. L. Weekly D1202 (Fla. 5^th DCA 2010).  Trial Court reversed for granting motion for rehearing and amending final judgment to change valuation of accounts from date of filing to date of final judgment based on Husband’s assertions in motion alone.  While Court has discretion to set valuation date, it requires substantial competent evidence which is lacking here.

Rocha v. Mendonca, 35 Fla. L. Weekly D1080 (Fla. 3^rd DCA 2010).  Trial court reversed for rewriting QDRO so Wife would have immediate access to funds and originally QDRO required triggering event.

Rotta v. Rotta, 35 Fla.L.Weekly D822 (Fla. 2nd DCA 2010).  Court reversed for returning $400k to Husband which he paid voluntarily towards self acknowledged debt to Wife because matter was never plead.

Leider v. Leider, 35 Fla.L.Weekly D852 (Fla. 5th DCA 2010).  Court affirmed for finding no active appreciation on repairs made to non marital property.  Reversed for manner of calculating other appreciation.  Remanded to consider if mortgage payments made with marital monies should be considered marital appreciation.

Campbell v. Campbell, 30 So. 3d 679 (Fla. 3^rd DCA 2010).  Trial Court affirmed for finding of marital waste especially where there is no transcript.

Boyle v. Boyle, 30 So. 3d 665 (Fla. 5^th DCA 2010).  Trial Court affirmed for using date of separation instead of date of filing, six years later, when parties “essentially had operated separate households” and “led their own life” when  award resulted in $227,000 to Husband and $12,000 to Wife.  Nominal award of alimony reversed in light of new property distribution.

Sullivan v. Sullivan, 32 So. 3d 191  (Fla. 4^th DCA 2010).  Trial Court affirmed without opinion.  Interesting dissent by Warner suggesting prejudgment interest on equalizing payment should not apply when valuation date is time of final judgment verses time of filing.  Distinguishing Catalfumo.

Annas v. Annas, 29 So. 3d 1209 (Fla. 1^st DCA 2010).  Equitable distribution reversed when it assigned Wife monies she withdrew from savings when there were no findings of fact suggesting Wife used monies for something other than reasonable living expenses.

Nunez v. Nunez, 29 So. 3d 1191 (Fla. 5^th DCA 2010).  Trial Court’s valuation of 51% interest in closed corporation reversed as it was not supported by competent substantial evidence. Evidence included minority partner owned technology, company failed to make a profit, forensic accountant testified company had no value.  There was one proposal to buy company for $3,000,000 from nowdefunct company.  Court’s valuation of $1,530,000.00 reversed.

Mistretta v. Mistretta, 31 So. 3d 206 (Fla. 1^st DCA 2010).  Trial Court reversed for allowing rehearing on valuation of business due to post judgment “recessionary economy.”  Newly discovered evidence does not include change in circumstances since trial.

Garcia v. Garcia, 25 So. 3d 687 (Fla. 4^th DCA 2010).  The sale price set by restrictive provisions on transfer on closely held stock was not conclusive as to value.  Impaired marketability may be considered, but in this case, neither party’s accountant applied a discount so Trial Court affirmed for using net book value.

Enforcement:

Alburos v. Alburos, 35 Fla.L.Weekly D894 (Fla. 3rd DCA 2010).  Trial court reversed for issuing contempt/incarceration order giving former husband $20k purge based on fact of his involvement with family business and business account with $25K.  Even though former husband’s testimony not credible, you still must specify a source for purge.

Stollmack v. Ferrell, 35 Fla.L.Weekly D894 (Fla. 3rd DCA 2010).  Trial court reversed for ordering former wife to sign a release for benefits accruing after former husband’s death, when wife only waived benefits during husband’s life in settlement agreement.  Sanctions levied against former wife under 57.105 also reversed.

Income:

Shafer v. Shafer, 35 Fla. L. Weekly D2023 (Fla. 4^th DCA 2010).  Judge Amy Smith reversed for imputing wages to a Wife as if she were able to become an attorney in Florida.  Wife did go to law school and was licensed in New York and New Jersey.  However, 20 years had lapsed and Wife failed Florida Bar exam.  There must be some realistic basis in the evidence to support the concept that the former spouse can earn sums imputed.

Valentine v. Van Sickle, 35 Fl. Law. Weekly D1663 (Fla. 2^nd DCA 2010).  $4,000 per year alimony reversed because of no findings of fact.  Prior to divorce, Husband, mortgage underwriter, benefited from the refinancing boom which caused a surge in his income due to temporary phenomenon. It is inappropriate to base alimony on this type of income.

Boyd v. Alonso-Boyd, 35 Fla.L.Weekly D1471 (Fla. 3^rd DCA 2010).  Court affirmed for denying exceptions on magistrate’s child support order which had no findings of fact as to Husband’s inputed income.  While magistrate did not include findings, number was based on Husband’s testimony that he had that amount available to him every month.   In addition, the Husband failed to comply with discovery orders hampering magistrate’s ability to make a specific calculation.

Posner v. Posner,  35 Fla.L.Weekly D1429 (Fla. 4^th DCA 2010).  Trial court affirmed for imputing $1,400 per month income which represented rent provided for by parents for an extended period and will continue so long as Husband does not have “a place of his own”.

Child v. Child, 35 Fla. L. Weekly D1002 (Fla. 5th DCA 2010).  Imputation appropriate when husband has negative cash flow, not satisfactorily explained.  “Florida case law has long recognized that self employed spouses, in contrast to salaried employees, have the ability to control and regulate their income.  Their testimony, tax returns and business records may not reflect their true earning, earning capability, and net worth.”  Amount of imputation remanded as not supported by evidence.

Drew v. Drew, 27 So. 3d 802 (Fla. 2^nd DCA 2010).  Trial Court reversed for abusing discretion for not including bonus Husband had received for past nine (9) years.  Court did not include it based on finding it was not fixed or guaranteed.

McCall v. Martin, 35 Fla.L.Weekly D878 (Fla. 4th DCA 2010).  Judge Rapp denied for refusing to set child support for father who was being incarcerated for domestic violence against the mother finding father “had no monthly income”.  The Court is required to inpute income so arrearages can accumulate.  When release occurs the Court should establish a payment according to ability.

Sallaberry v. Sallaberry, 27 So. 3d 234 (Fla. 4^th DCA 2010).  Court reversed for imputing twenty (20) hours of work per week (at $95.00 an hour) when evidence was too sporadic.  Only competent evidence was Husband’s ability to fund household expenses in the amount of $5,000 per month.

Miscellaneous:

Quintero v. Kenyon, 35 FLW D2589 (Fla. 3^rd DCA 2010).  Order denying continuance reversed when Wife became unemployed, was unable to pay for attorney, attorney withdrew on eve of trial and no evidence of prejudice on record.  In determining whether continuance is appropriate Court must consider 1) whether denial creates injustice, 2) is it caused by unforeseen practices rather than dilatory practices and 3) whether the other party would be prejudiced.

Betemariam v. Said, 35 FLW D2543 (Fla. 4^th DCA 2010).  Judge Brunson affirmed in determining parties were not legally married and refusing to address alimony and equitable distribution.  Parties had religious ceremony in Virginia.  Looking at Virginia law, if no license,  marriage is void ab initio.  Court reversed for not requiring father to pay private school when expenses in accordance with standard of living and father had ability.

Chamberlin v. Miller, 35 FLW D2529 (Fla. 1^st DCA 2010).  Name change of minor child reversed.  Father’s testimony of his desire for son to carry on family name, his belief child should have father’s surname, father’s fear child would be teased were conclusionary assertions and are insufficient to demonstrate the change is in the best interest of child.

Clark v. Clark, 35 Fla. L. Weekly D2072 (Fla. 4^th DCA 2010).  Trial court reversed for allowing vocational exam without allowing parties’ court reporter to transcribe testing.  Vocational evaluation is comparable to a medical evaluation.  Testing is allowed to be recorded.

Hutcheson v. Taylor, Name change in paternity case from last name of mother’s name (which was on birth certificate) to last name of both parties with hyphen reversed where order did not articulate how name change was in child’s best interest or required for welfare of child.

Hahn v. Hahn, 35 Fla. L. Weekly D1966 (Fla. 4^th DCA 2010).  Court erred by retroactively applying 61.13 to modification action.  Here, statute not operative of law until date it takes effect.  New statute does not create presumption for 50/50 timesharing.

Standish v. Standish, 35 Fl. Law. Weekly D1703 (Fla. 4^th DCA 2010).  All issues affirmed.  However case remanded to fix scrivener’s error referring to account number of an annuity.

Sootin v. Sootin, 35 Fl. Law. Weekly D1738 (Fla. 3^rd DCA 2010).  Court reversed for transferring an action to modify alimony to Tennessee because under UIFSA Florida has continuing exclusive jurisdiction over a spousal support order.  Under UIFSA, out of state courts may enforce Florida spousal support orders but may not modify them despite the obvious logic of two former spouses who both reside in Tennessee to resolve their dispute there.

Bieda v. Bieda, 35 Fl. Law. Weekly D1808 (Fla. 3^rd DCA 2010).  Ex-parte injunction freezing bank account of Former Husband who owed $280k in arrearages reversed.  Order did not include requisite findings of fact: 1) defining injury, 2) why injury is irreparable, 3) reasons why notice wasn’t given.

Henry v. Henry, 35 Fla.L.Weekly D1611 (Fla. 2^nd DCA 2010).   Trial court reversed for denying 1.540 relief from judgment motion without an evidentiary hearing when affidavit establishes “colorable entitlement to relief”.

DOR v. Collingwood and Gray, 35 Fla.L.Weekly D1513 (Fla. 1^st DCA 2010).  Trial court reversed for disqualifying DOR from representing Father when it previously represented Mother due to conflict of interest.  Not so.  Department counsel represents DOR, so there is no conflict.

Saunders v. Saunders,  35 Fla.L.Weekly D1433 (Fla. 5^th DCA 2010).  Final judgment reversed.  Court minutes indicate parties reached settlement where no stipulation of agreement in court file.  All dissolution orders must be based upon facts which are contained in the record or by way of stipulation or trial evidence.

In re: Amendments to Forms, 35 Fla.L.Weekly S385 (Fla. 2010).  Approves new name change family law form.

Cohen v. Cohen, 35 Fla.L.Weekly D1417 (Fla. 4^th DCA 2010).  Court affirmed for denying last minute continuance request when party could not show they were prejudiced by alleged discovery violation.

Brown v. Brown, 35 Fla. L. Weekly D1234 (Fla. 4^th DCA 2010).  Court affirmed for denying 1.540 motion.  After mandate, trial Court reduced alimony to $1 but did not state a retroactive date.  6 months later, Former Husband filed motion for clarification.  Issued waived when not raised by motion for rehearing.

Causey v. Causey, 35 Fla. L. Weekly D1271 (Fla. 1^st DCA 2010).  Court reversed for changing schedule of reimbursing non-covered health and child care costs when relief never requested.

Hunter v. Hunter, 35 Fla. L. Weekly D1157 (Fla. 2^nd DCA 2010).  Ex-parte injunction requiring Husband to return property to marital home reversed for many reasons.  Can only enter ex parte injunction if moving party demonstrates 1) how and why giving notice will accelerate or precipitate injury, 2) time required to notice hearing would permit threatened irreparable injury to occur.   Motion also needs to be verified or supported by sworn affidavit.  Motion must contain attorney certification of efforts to give notice or why notice not required.  Order defective as it contained no explanation as to why injunction warranted.

Rashid v. Rashid, 35 Fla. L. Weekly D1138 (Fla. 5^th DCA 2010).  Judgment requiring life insurance to secure child support and alimony reversed because no findings of availability and cost of insurance or appropriate circumstances to justify insurance requirement.

Armstrong v. Armstrong, 35 Fla. L. Weekly D1146 (Fla. 2^nd DCA 2010).  Unique interpleader case involving ex-wifes of ex-NFLer Adger Armstrong relating to NFL pension.

Hall v. Maal, 35 Fla.L.Weekly D914 (Fla. 1st DCA 2010).  Trial court affirmed for declaring marriage “void” when parties fail to meet “good faith” & “substantial conpliance” test.  Here parties did not meet either prong of test.  Strong dissent.

Levine v. Levine, 29 So. 3d 464 (Fla. 4^th DCA 2010).  Interesting concurring opinion where justice may foresee parties manipulating liquid v. non-liquid assets in equitable distribution for strategic purposes relating to alimony.

Cummings v. Cummings, 35 Fla. L. Weekly D553 (Fla. 4^th DCA 2010).  Seventh (7^th) written appeal involving same parties.  “Law of the case” discussion.

Castellano v. Winthrop, 27 So. 3d 134 (Fla. 5^th DCA 2010).  Trial Court affirmed for disqualifying law firm who received illegally obtained USB drive containing confidential information and spent 100 hours reviewing it.

Calderon v. Calderon, 26 So. 3d 688 (Fla. 5^th DCA 2010).  You get additional five (5) days to file exceptions if report is mailed to you.

Minakan v. Husted, 27 So. 3d 695 (Fla. 4^th DCA 2010).  Judge Makemson reversed for disqualifying an attorney who revealed an alleged privileged email.  Good discussion of disqualification and other remedies.

In Re: Amendments to Fam. L. R. Pro, 27 So. 3d 650  (Fla. 2010).  Creates new rule on parenting coordinator and forms for order of referral to parental coordinator and response by parental coordinator.

Modification:

Fredrickson v. Fredrickson, 35 FLW D2635 (Fla. 4^th DCA 2010).  Modification reversed as there was substantial evidence Former Husband’s decrease in income was not permanent.

Sanchez v. Hernandez, 35 Fla. L. Weekly D2019 (Fla. 4^th DCA 2010).  Order modifying primary residential parent reversed.  There must be a substantial change of circumstances not reasonably contemplated by parties at time of final judgment.  Father needed to demonstrate more than merely an acrimonious relationship and a lack of effective communication in order to effectuate a modification.

Clark v. Clark, 35 Fla. L. Weekly D1137 (Fla. 5^th DCA 2010).  Trial Court reversed for granting temporary motion to modify custody based on best interest of child.  Requires substantial change of circumstance.

Neville v. Neville, 35 Fla. L. Weekly D1105 (Fla. 5th DCA 2010).  Order terminating support at age 18 reversed in settlement agreement provided it terminated upon graduation from high school.

Salter v. DOR,  32 So. 3d 777 (Fla. 2nd DCA 2010).  Final administrative support order reversed when child support arrearages not calculated on father’s actual income which father had provided to department.

Overton v. Overton, 35 Fla. L. Weekly D963 (Fla. 1st DCA 2010).  Trial Court reversed for modifying alimony after stating “it considered all factors in 61.08(2)” but failed to make specific findings of fact.

Wilson v. Wilson, 35 Fla.L.Weekly D875 (Fla. 2nd DCA 2010).  Trial court affirmed by reducing 57 year old’s alimony obligation from $11k to $8k per month.  Former Husband’s decision to sell his veterinary practice, after 2 vets left was “prudent” and satisfies the “reasonableness” test.  In addition, Former Wife inappropriately inflated her needs (retirement contributions, gifts, charities, future college expenses for granddaughter, large increases for clothing, capital fund for house).

D.M.G. v. G.E.M, 35 Fla.L.Weekly D822 (Fla. 2nd DCA 2010).  Mother’s residential and instability could not support a modification to the designation of primary residential parent when those facts were present during initial determination.

Rickenbach v. Kosinski, 32 So. 3d 732 (Fla. 5th DCA 2010).  Trial Court erred in thinking it was prohibited from converting rehabilitative alimony to permanent in a modification proceeding.  To convert, must show why original plan did not work despite reasonable and diligent efforts.

GSP v. KB, 30 So. 3d 667 (Fla. 2^nd DCA 2010).  Court reversed for using fixed amounts for health insurance and daycare when various financial affidavits filed during proceedings showed different amounts and lapses in daycare.

Cordell v. Cordell, 30 So. 3d 647 (Fla. 3^rd DCA 2010).  Trial Court reversed for modifying alimony retroactive to date of final judgment as opposed to date of filing petition for modification.  Final Judgment contained language that “$75.00 per month child support would be subject to retroactive modification if the Court found the amount to be incorrect”.  Assuming Trial Court had authority to “retain jurisdiction” like this (no cases say they do) Wife would have to seek a modification within a reasonable time.  Waiting eleven (11) years waived right.

Castleberry v. Castleberry, 29 So. 3d 1207 (Fla. 1^st DCA 2010).  Trial Court reversed for failing to modify alimony to nominal amount when recipient now had a higher income and no other jurisdiction for alimony.

Pombrio v. Pombrio, 29 So. 3d 1208 (Fla. 1^st DCA 2010).  Court erred in prospectively reducing alimony once Wife starts receiving retirement benefits.  Prospective modification is an abuse of discretion.

Vollmer v. Vollmer, 35 Fla. L. Weekly D529 (Fla. 2^nd DCA 2010).  Court erred in considering non recurring income (one time receipt of equity compensation, unearned stock awards) in modifying child support.  Non recurring income can only be included when recurring income insufficient to meet child’s need.  Court also reversed for averaging methods of determining party’s complete income.  Court averaging competing values, standing alone, is not supported by competent, substantial evidence.

Ginell v. Pacetti, 31 So. 3d 217 (Fla. 4^th DCA 2010). Court was affirmed for modifying time sharing at contempt hearing based upon request of party who did not violate parenting plan per section 61.13(4)(c)6, Florida Statutes.

Schmachtenberg v. Schmachtenberg, 35 Fla. L. Weekly D462 (Fla. 3^rd DCA 2010).  Former Husband agreed to support adult disabled child “as he has done in past”.  Former Husband’s modification of child support failed because a) there was no change in circumstances and b) not in disabled son’s best interest to modify.  Court modified alimony downward but erred by imputing Former Wife’s previous imputed income amount as income to her.  Previous imputation does not meet evidentiary threshold for imputation.

Halbert v. Morico, 27 So. 3d 771 (Fla. 2^nd DCA 2010).  Court reversed for granting modification when only change was Former Husband moved forty-five miles away and had new job.

Paulk v. Paulk, 25 So. 3d 672 (Fla. 2^nd DCA 2010).  Trial Court reversed for modifying rotating custody and granting Father primary when Father’s petition for modification was not served, matter was not tried by consent and no emergency existed.

Parenting:

Sidman v. Marino, 35 FLW D2431 (Fla. 1^st DCA 2010).  Court reversed for modifying time sharing absent substantial change of circumstances.  Here parties agreed to additional timesharing and Court found more timesharing would be in child’s best interest.  Allowing an agreement between the parties to serve as a basis for modification would discourage parents from making informal joint decisions for the benefit of their children.

Bishop v. Bishop, 35 Fla.L.Weekly D2147 (Fla. 2^nd DCA 2010).  Award of rotating reversed because record was devoid of any evidence that would support that and parties agreed to abide by therapist’s recommendation.  Here therapist was not recommending expanded visitation.

Grigsby v. Grigsby, 35 Fla.L.Weekly D1486 (Fla. 4^th DCA 2010).  Trial court affirmed for awarding Father sole parental responsibility and suspending all of Mother’s timesharing.  However, court reversed for not including specific conditions to reestablish time sharing and delegating decision to resume time sharing to father.

Martinez v. Abinader, 35 Fla. L. Weekly D1316 (Fla. 2^nd DCA 2010).  Court erred in naming Husband primary residential parent because Wife could not afford to live in marital home with child.

Rashid v. Rashid, 35 Fla. L. Weekly D1138 (Fla. 5^th DCA 2010).  Court reversed for granting sole parental without any findings shared parental would be detrimental to child.

Hickey v. Burlinson, 35 Fla. L. Weekly D963 (Fla. 5th DCA 2010).  Case remanded which required Court to have interview with minor child transcribed, as one of the parties requested, after Court granted motion for in camera interview with minor children.

Kelly v. Colston; 35 Fla.L.Weekly D824 (Fla. 1st DCA 2010).  Timesharing provision that restricted Father from leaving child with third persons or friends reversed because judgment lacked sufficient findings of fact to support this “severe” restriction.

Corey v. Corey, 29 So. 3d 315 (Fla. 3^rd DCA 2010). Court reversed for applying a presumption for rotating custody and requiring showing of exceptional circumstances.  Only burden is best interest of children.

Paternity:

Nevitt v. Bonomo & Bonomo, 35 FLW D2871 (Fla. 1^st DCA 2010).  Order dismissing paternity suit reversed.  Appellees’ marriage dissolved on February 10, 2010.  At that time, Mrs. Bonomo was pregnant with Mr. Nevitt’s child.  On February 11, 2010 Nevitt filed for paternity alleging at conception, appellees did not have an intact marriage and Nevitt had developed a substantial concern for the child.  In an interesting move, the Bonomos had their final judgment set aside and argued Nevitt was without standing.   In order to contest the paternity of a child conceived while bio-mother is married to another man, must demonstrate putative biological father manifested a substantial concern for child.  Since that was pled, order of dismissal reversed.

Scott-Lubin v. Lubin, 35 Fla.L.Weekly S2688 (Fla. 4^th DCA 2010).  Trial court reversed for granting relief from judgment when party was not originally personally served.  However, Husband participated in case in a hearing before a magistrate without raising contemporaneous objection to Court’s exercise of jurisdiction.

In re: Amendment, 35 Fla.L.Weekly S734 (Fla. 2010).  New Supreme Court forms for a) parenting plan (non-supervised); b) parenting plan (supervised / safety focused) and; c) parenting plan (military).

Aulet v. Castro, 35 Fl. Law. Weekly D1678 (Fla. 2^nd DCA 2010).  Dismissal of disestablishment of paternity affirmed because scientific testing was not performed within 90 days of filing petition.  Statute is plain and unambiguous so there is no need to resort to rules of statutory construction.  Dissent suggests 90 day limit should be considered a statue of limitation subject to equitable tolling, waiver or other defenses.

Janssen v. Alicea, 30 So. 3d 680 (Fla. 3^rd DCA 2010).  Trial Court reversed for granting summary judgment based on Mother’s assertion that Father’s claim was barred by F.S. 742.14 because he was a sperm donor.  However, Father asserted they were a “commissioning couple” and thus an issue of fact existed.

L.J. v. A.S., 25 So. 3d 1284 (Fla. 2^nd DCA 2010).  Court reversed for dismissing paternity petition filed by biological Father when he demonstrated willingness and ability to support child and legal Father refuses to provide.

Procedure:

Scott-Lubin v. Lubin, 35 FLW D2688 (Fla. 4^th DCA 2010).  Trial Court reversed for granting relief from judgment when party was not originally personally served.  However, husband participated in case in hearing before magistrate without raising contemporaneous objection to court’s exercise of jurisdiction.

In re: Amendments, 35 FLW S734 (Fla. 2010).  New approved forms for; a) parenting plan (non-supervised), b) parenting plan (supervised/safety focused) and c) parenting plan (military).

Gutierrez v. Gutierrez, 35 FLW D2509 (Fla. 5^th DCA 2010).  Trial court reversed after adopting Magistrate’s report without having a hearing on exceptions timely filed.

Martinez v. Kurt, 35 Fla.L.Weekly D2270 (Fla. 3^rd DCA 2010).  Agreement providing for arbitration of financial issues found unenforceable because after judgment Court decided Toiberman, which interpreted 44.104 as excluding arbitration from all lawsuits that involve custody, visitation, or child support.  Court would not address whether this rendered entire agreement as issue was not raised with trial court.  Decision was without prejudice for Husband to raise that before trial court.

Lefler v. Lefler, 35 Fla.L.Weekly D2252 (Fla. 4^th DCA 2010).  Court affirmed for granting exclusive use and possession of marital home to Wife even though the relief was not requested in the pleadings.  Exclusive use and possession is incident to child custody.

Mikulec v. Mikulec, 35 Fla.L.Weekly D2252 (Fla. 2^nd DCA 2010).  Court reversed for denying Husband’s motion to dismiss based on subject matter jurisdiction.  Wife filed and was a non-resident.  Burden is on Wife to prove residency.  Subject matter jurisdiction cannot be waived or acquiesced to.

Smith v. Smith, 35 Fla.L.Weekly D2249 (Fla. 2^nd DCA 2010).  Court order granting summary judgment on child support modification because there was a material dispute of fact.  In this case, the Former Wife could have over 40% visitation and therefore be entitled to gross up method, however before she did, she had to subject to psychological evaluations, therapy and home inspections.

Rivero v. Rivero, 35 Fla.L.Weekly D2203 (Fla. 1^st DCA 2010).  Portion of modification final judgment requiring former wife to execute HIPPA releases and other documents necessary to confer with former wife’s doctors regarding a substance abuse issue reversed when judgment lacked any findings or conclusions.

Bishop v. Bishop, 35 Fla.L.Weekly D2147 (Fla. 2^nd DCA 2010).  Trial court reversed for adopting proposed 17 page judgment verbatim.  While Florida law does not prohibit this, the 2^nd DCA will reverse any judgment entered under circumstances that create an appearance that the judgment does not reflect the judge’s independent decision making.  Here there were 20 errors, omissions or irregularities.

Resor v. Welling, 35 Fla.L.Weekly D2143 (Fla. 5^th DCA 2010).   Order transferring venue in child custody modification reversed.  No showing of substantial inconvenience or undue expense to establish a basis for transfer.

In re: Amendments to the Florida Family Law Rules, 35 Fla.L.Weekly S524 (Fla. 2010).  Supreme Court approves new forms for relocation and disestablishment of paternity.

Thier v. Thier, 35 Fl. Law. Weekly D1689 (Fla. 4^th DCA 2010).  Court reversed for denying motion “to maintain status quo” without an evidentiary hearing.  Matter was set with 2 other motions and not reached.  Court stated it was not going to rule on motion, then denied it.

N.W. v. M.W., 35 Fl. Law. Weekly D1699 (Fla. 2^nd DCA 2010).  Trial court erred in denying motion to introduce child heresay statement because there was no corroborating medical evidence of sexual abuse because that was an improper standard.  Trial court must make findings that satisfy 2 criteria: 1) the source of the information through which the statement was reported must indicate trustworthiness and 2) the time, content and circumstances of statement  provides sufficient safeguards of reliability.

Morell v. Booth, 29 So. 3d 429 (Fla. 5^th DCA 2010).  Court reversed when requiring non-party to produce financial records without showing “compelling reason” to defeat non-party’s privacy rights.  Award of fees against non-party reversed because no finding of contempt.

Ginell v. Pacetti, 31 So. 3d 217 (Fla. 4^th DCA 2010).  Court did not violate “Perlow Rule” because a) Court provided opportunity for both parties to submit a proposed final judgment, b) Court modified proposed order, c) Court participated in hearing (asked questions) and d) made preliminary oral findings.

Relocation:

Crombie v. Williams, 35 FLW D2893 (Fla. 3^rd DCA 2010).  Denial of relocation affirmed in post judgment paternity where Mother relocated to Jacksonville right after serving notice of intent to relocate.

Larocka v. Larocka, 35 Fla. L. Weekly D2041 (Fla. 5^th DCA 2010).  Final judgment which delegated authority to counselor to determine time sharing reversed.  Court cannot delegate that decision.  Reversal even in light of no transcript.  Error on face of judgment.

Sanchez v. Tillotson, 32 So. 3d 191  (Fla. 2nd DCA 2010).  Relocation order must be affirmed to the extent it was not error of law because no transcript.  Order of relocation to 18 year old son was error of law as UCCJEA does not apply to an 18 year old.

Zepeda v. Zepeda, 32 So. 2d 679  (Fla. 2^nd DCA 2010).  Trial Court reversed for treating proposed time sharing as agreement and allowing temporary relocation.

Arthur v. Arthur, 35 Fla. L. Weekly S38 (Fla. 2010).  Resolves conflict.  Good Supreme Court discussion of relocation. 2^nd DCA reversed for affirming relocation when child turns three.  The trial Court is required to make a final determination on the issue at the time.  Trial Court is not equipped with crystal ball that enables it to prophetically determine whether future relocation is in the best interest of the child.

Retroactivity:

Spano v. Bruce, 35 Fl. Law. Weekly D1811 (Fla. 3^rd DCA 2010).  Court affirmed for awarding retroactive support to date of amended petition instead of date of initial petition.  Initial petition was dismissed without prejudice.

Valentine v. Van Sickle, 35 Fl. Law. Weekly D1663 (Fla. 2^nd DCA 2010).  Husband challenged award of 18 months of retroactivity.  Husband argued he should be credited for paying mortgage.  Not so if property is held in entireties.  Matter was remanded because Court did not consider monies Wife withdrew for support during pendency of action.

UCJEEA:

Hindle v. Fuith, 35 Fla.L.Weekly D914 (Fla. 5th DCA 2010).  Trial court had subject matter jurisdiction to make initial custody determination over child currently residing in Florida even though Florida was not child’s home state, child had not lived in Florida for six months,  because Mother and child lived in several states in six months prior to filing.

What follows is an analysis of the significant revisions to Florida’s Spousal  Support (Alimony) and child support laws by board certified divorce attorney Eddie Stephens.

Codifies all forms of alimony;  bridge-the-gap durational, rehabilitative, permanent alimony.  Court may award a combination.

Amendments to law apply to all initial awards of alimony entered after July 1, 2010, and modifications of such awards. Such amendments may not serve as a basis to modify awards entered before July 1, 2010, or as a basis to change amounts or duration of awards existing before July 1, 2010.

New factors:

(g) The responsibilities each party will have with regard to any minor children they have in common.

(h) The tax treatment and consequences to both parties of any alimony award, including the designation of all or a portion of the payment as a nontaxable, nondeductible payment.

(i) All sources of income available to either party, including income available to either party through investments of any asset held by that party.

Presumptions:

a) that a short-term marriage is a marriage having a duration of less than 7 years

b) a moderate-term marriage is a marriage having a duration of greater than 7 years but less than 17 years

c) a long-term marriage is a marriage having a duration of 17 years or greater.

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 being single. Bridge-the-gap alimony is designed to assist a party with legitimate identifiable short-term needs, and the length of an award may not exceed 2 years. An award of bridge-the-gap alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. An award of bridge-the-gap alimony shall not be modifiable in amount or duration.

Rehabilitative Alimony:

Awarded to assist a party in establishing the capacity for self-support through either:

1. The redevelopment of previous skills or credentials; or

2. The acquisition of education, training, or work 113 experience necessary to develop appropriate employment skills or 114 credentials.

Final Judgment or order of rehabilitative alimony must have findings of fact showing a “specific and defined rehabilitative plan”.

An award of rehabilitative alimony may be modified or terminated based upon a substantial change in circumstances, upon noncompliance with the rehabilitative plan, or upon completion of the rehabilitative plan.

Durational Alimony:

Awarded when permanent periodic alimony is inappropriate.  The purpose of durational alimony is to provide a party with economic assistance for a set period of time following a marriage of short or moderate duration.

An award of durational alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony.

The amount of an award of durational alimony may be modified or terminated based upon a substantial change in circumstances.

The length of durational alimony may not be modified absent exceptional circumstances.

The length of durational alimony may not exceed the length of the marriage.

Permanent Alimony:

Awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage.

Permanent alimony may be awarded following a marriage of long duration, following a marriage of moderate duration if such an award is appropriate upon consideration of the following factors:

An award of permanent alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony.

An award may be modified or terminated based upon a substantial change in circumstances or upon the existence of a supportive relationship.

Child Support:

Becomes effective on January 1, 2o11.

All child support orders and income deduction orders entered on or after October 1, 2010, must provide:

a.  For child support to terminate on a child’s 18th 206 birthday unless otherwise agreed to by the parties;

b.  A schedule stating the amount of the monthly child support obligation for all the minor children at the time of the order and the amount of child support that will be owed for any remaining children after one or more of the children are no longer entitled to receive child support; and

c. The month, day, and year that the reduction or termination of child support becomes effective.

Establishes Child Support Guidelines Principles:

(1) Each parent has a fundamental obligation to support his or her minor or legally dependent child.

(2) The guidelines schedule is based on the parent’s combined net income estimated to have been allocated to the child as if the parents and children were living in an intact household.

(3) The guidelines encourage fair and efficient settlement of support issues between parents and minimizes the need for litigation.

Inputation:

Income shall be automatically imputed and there is a rebuttable presumption that the parent has income equivalent to the median income of year-round full-time workers as derived from current population reports or replacement reports published by the United States Bureau of the Census when:

a) Information concerning a parent’s income is unavailable;

b) a parent fails to participate in a child support proceeding, or

c) a parent fails to supply adequate financial information in a child support proceeding.

In order for the court to impute income at an amount other than the median income of year-round full-time workers as derived from the above reports the court must make specific findings of fact consistent with the requirements of this paragraph. The party seeking to impute income has the burden to present competent, substantial evidence that:

a. The unemployment or underemployment is voluntary; and

b. Identifies the amount and source of the imputed income, through evidence of income from available employment for which the party is suitably qualified by education, experience, current licensure, or geographic location, with due consideration being given to the parties’ time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.

Except as set forth in above paragraph income may not be imputed based upon:

a. Income records that are more than 5 years old at the time of the hearing or trial at which imputation is sought; or

b. Income at a level that a party has never earned in the past, unless recently degreed, licensed, certified, relicensed, or recertified and thus qualified for, subject to geographic location, with due consideration of the parties’ existing time-sharing schedule and their historical exercise of the time-sharing provided in the parenting plan or relevant order.

25% discount traditional applied to amount of day care of paying parent ELIMINATED.

Court may deviate based upon the impact of the Child & Dependent Care Tax Credit, Earned Income Tax Credit, and dependency exemption and waiver of that exemption.

Changes substantial parenting adjustment (Gross Up Method) application from 40% to 20% percent of the overnights of the year.