2014 Family Law Case law updates

2014 FAMILY LAW CASE LAW UPDATES

Presented by Elizabeth Wolt
Wolt & Associates, P.A.

1. I. INTRODUCTION___________________________________________12:00-12:05

The case law updates are the most interesting and informative cases that have come out in 2013 and in the first few months of 2014. They have been chosen either because they clearly explain areas of the law; are important in their holdings, or are interesting in their fact patterns. Because of limited time, not all the new cases can be covered. I’ve chosen the best case in each area of family law including child support, modification, time-sharing, injunctions for protection against repeat violence and the newly enacted stalking statute, alimony, attorney fees, equitable distribution, same-sex family law in Florida, and ethics. Cases on paternity have not been included as the issue was well covered and presented as an entire topic in a recent Brown bag presentation. This presentation is meant to be interactive and discussion is encouraged and invited. Knowledge of the most up to date state of the law in each area is vital to the competent practice of family law.

1. II. CHILD-SUPPORT 12:05-12:10

One of the most informative cases over the past twelve months on the issue of child support is from our Second District.

The case of Cash v. Cash, 38 FLW D2016a (Fla. 2nd DCA), opinion filed September 20, 2013, is instructive on several key issues. 1) We learn that a Judge cannot deviate from the presumptive child support amount by increasing Father's obligation by 5% without considering the statutory factors and/or increase an additional 5% without written findings explaining the deviation without violating the essential requirements of law. We also learn that it is an abuse of discretion to deny retroactive modification to date of filing, if pled for in the petition. The case also clarifies that the current child support obligation does not get included in the obligor’s income calculation. Finally, it is error for a judge not to impute income to a parent in the absence of evidence supporting a finding of involuntary unemployment. Court made note that on remand the court could not consider nonrecurring income without first determining that father's recurring income was insufficient to meet statutory obligation. We have to wonder how the math will come out in this case. On remand the court must take off the two 5% deviations, or explain the increase over 5% in written findings, deduct the Father’ s current child support obligation from his income for calculation purposes, impute income to the Mother and offset her income with child care expenses. In addition, the court may, depending on how the calculation comes out, get to consider the Father’s nonrecurring income.

1. III. MODIFICATION 12:10-12:15
2. CHILD SUPPORT IS MODIFIABLE EVEN IF AGREEMENT STATES TO THE CONTRARY

In deLabry v. Sales, 39 FLW D283a (Fla. 4th DCA) opinion filed February 5, 2014, the former wife appealed order granting modification of child support arguing that same was not modifiable pursuant to the parties MSA. The DCA, in a very instructive opinion breaks the case into 6 stages: 1) their MSA; 2) the pleadings; 3) the hearing; 4) the final order; and 5) the appeal and reasoning. In short, the court's inherent power to modify child support cannot be contracted away.

IV. TIME-SHARING _______ 12:15-12:20

1. NO JURISDICTION UNDER CHAPTER 61 TO AWARD VISITATION OF EMANCIPATED CHILD, EVEN IF THE CHILD IS DISABLED. ORDER REQUIRING FORMER WIFE TO DO SO FOUND VOID.

In Hardman v. Koslowski, the parties have been appealing for years. The Mother was permitted to relocate to Seattle. Thereafter, the party’s disabled son became emancipated. The appeal prior to this case, was overturned after the trial court found the Mother in contempt for preventing the father from having routine contact with their disabled son. The Contempt order was overturned because there was no order in place ordering her to keep usual and routine contact with the father. Thereafter, the father filed the current appeal in which the court found that the court had no jurisdiction under Chapter 61 to order visitation with an emancipated child. Query what would be a viable option to getting the Father contact with his disabled son other than petition for time sharing?

1. ERROR TO ALLOW FATHER TO HAVE TIME-SHARING IN JAMAICA, A NON-SIGNATORY NATION TO THE HAGUE

In Matura v. Griffith, 39 FLW D255a (Fla. 5th DCA) opinion filed January 31, 2014, the Mother appealed the trial court's allowance of the father, who had been deported upon convictions of two batteries (reduced from sexual battery and aggravated battery with a deadly weapon) on the mother and continually threatened to kidnap the children, to have visitation with the children in Jamaica, a non-signatory to the Hague Convention of the Civil Aspects of International Child Abduction (“Hague Convention”). The trial court required a $50,000.00 bond for each child. The DCA found that the trial court overlooked the detriment to the children under 61.13 (2)(c)2, Fla. Stat, which created a presumption of detriment. In addition, there was no evidence suggesting that the mother would be able to gain return of the children from Jamaica through legal processes, no matter how much money was available to her from a bond. Read footnote 1 of the opinion carefully.

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1. V. INJUNCTIONS FOR PROTECTION AGAINST REPEAT VIOLENCE AND THE NEWLY ENACTED STALKING STATUTE 12:20-12:25
   1. MOTHER INCORRECTLY ARGUES THAT STATUTE REQUIRES ONLY ONE ACT OF VIOLENCE TO SUPPORT INJUNCTION AGAINST REPEAT VIOLENCE WHEN SOUGHT FOR A MINOR CHILD.

In Cannon, v. Thomas, o/b/o Jewett 39 FLW D549b Fla. 1st DCA), opinion filed March 12, 2014, the trial court erred in entering a permanent injunction on behalf of the petitioner's minor daughter for protection against repeat violence. The Mother argued that in order to protect minors, section 784.046(2), Florida Statutes (2012), was amended in 1999 to provide that parents or legal guardians may seek to obtain protective injunctions “against repeat violence.” By use of the phrase “against repeat violence,” she asserted that only one act of violence was required to support the trial court's order granting a permanent injunction against repeat violence. The DCA rejected the Mother's proposed interpretation of the statute, because the statute's unambiguous language requires the showing of two acts of violence. Section 784.046(2), Florida Statutes (2012). The court suggests a legislative enactment may be in order to address school injunctions based upon the facts of this case. Note the bolded language in the opinion.

1. A SINGLE INCIDENT OF “FOLLOWING,” WHICH WAS NOT MALICIOUS WILL NOT SUPPORT INJUCTION AGAINST STALKING

In Touhey v. Seda, 39 FLW D530a (Fla. 2nd DCA) , opinion filed March 12, 2014, the injunction against stalking was reversed and ordered to be dismissed where the testimony was of one incident of following a party, without any evidence of malicious intent. While the son of the respondent pulled a gun on the petitioner, the son was not named in the action. The respondent only followed the petitioner. Pursuant to the newly-enacted section 784.0485, Florida Statutes (2012), injunctive relief is available from stalking. Stalking is defined as the “willful[ ], malicious[ ], and repeated[ ] follow[ing], harass[ing], or cyberstalk[ing] [of] another person.” § 784.048(2). There was insufficient evidence in this case to support the injunction.

1. KEYING A CAR IS NOT AN ACT OF VIOLENCE SUPPORTING AN INJUNCTION FOR PROTECTION AGAINST REPEAT VIOLENCE

In Williams v. Gonder, 39 FLW D575a (Fla. 1st DCA), opinion filed March 18, 2014, the DCA reversed finding not only was there a lack of competent substantial evidence as to the second act, but the first act of "keying" a car was not an act of violence as contemplated by section 784.046(2), Florida Statutes, which requires two acts of violence.

VI. ALIMONY 12:25-12:35
A. ERROR TO AWARD DURATIONAL ALIMONY IN LONG TERM (17 YEAR+) MARRIAGE. NEITHER AGE OR SPOUSES' ABILITY TO EARN SOME MONEY WILL ALONE REBUT THE PRESUMPTION.

In Motie v. Motie, 39 FLW D410a (Fla. 5th DCA), opinion filed February 21, 2014, the Wife appeals the award of durational rather than permanent alimony where she was married in excess of seventeen years. She also appeals giving the husband credit for monies he gave her pendente lite to pay the mortgage and then double dipping and applying those monies to conclude no child support arrearage was due. This is an important case worth a careful read. But compare the following case.

1. ERROR TO AWARD PERMANENT ALIMONY WHERE EVIDENCE DID NOT REFLECT PERMANENT INABILITY TO WORK. ALSO ERROR TO AWARD INSTALLMENT PAYMENTS THAT SPANNED 20 YEARS FOR EQUITABLE DISTRIBUTION OF AN ASSET.

In Evans v. Evans, 39 FLW D51a, (Fla. 1st DCA) opinion filed December 31, 2013, In a case where unfortunately we are not given the term of marriage in the case, the court found error in awarding Wife permanent alimony where she had two years of college, had run a pressure washing business and did not show a permanent inability to become self-sustaining. The equitable distribution issue in the case is also noteworthy: The DCA found that although Section 61.075(10) grants discretion to order ED of the marital assets payable in installments over time, it cannot do so such that one spouse is effectively deprived of the marital asset. In this case, the DCA found that the trial court's award of the singular major marital asset-the marital home, giving the wife 20 years to pay the husband his portion effectively deprived the husband of his share of the marital home. As for the alimony award, the relative youth of the former wife, her two years' worth of college, and her experience of running a successful pressure-washing business (the recent loss of which, resulting from the BP® oil spill, ended in her receipt of $39,000 in compensation) is evidence that “ ‘does not reflect permanent inability on the part of the [former] wife to become self-sustaining.' ” Aresty v. Weinstein, 667 So. 2d 846, 847 (Fla. 3d DCA 1996) (quoting Wismar v. Wismar, 522 So. 2d 552, 553 (Fla. 5th DCA 1988)). See also Rosecan v. Springer, 845 So. 2d 927, 930 (Fla. 4th DCA 2003). In regards to the division of the parties' equity in the marital home -- their singular major asset -- section 61.075(10), Florida Statutes, grants the trial court the discretion to order an equitable distribution of marital assets payable in installments over a fixed period of time. The present installment scenario, however, which spans twenty years, effectively deprives the former husband of his present one-half interest in the marital home. Cf.Posner v. Posner, 39 So. 3d 411, 415 (Fla. 4th DCA 2010) (holding the trial court abused its discretion where the installment plan worked “[t]o deprive the husband of the majority of the assets of the marriage for the rest of his life”). Accordingly, the award of permanent periodic alimony to the former wife and the equitable distribution installment plan concerning the marital home were REVERSED, and the cause remanded to the trial court.

VII. SAME-SEX FAMILY LAW 12:35-12:45

1. NO SUPPORT IN FLORIDA LAW FOR PROPOSITION THAT CHILD IS ENTITLED TO HAVE TWO LEGALLY RECOGNIZED FATHERS

Recall this case from our prior brown bag luncheon on the issue of Paternity. In C.G. v. J.R. & J. R., 39 FLW D248b (Fla. 2d DCA) opinion filed January 31, 2014, in a long and sorted tale a biological father appealed an order denying him parental rights bestowed by the trial court. The biological mother had an affair during an intact marriage that produced a child. The parties allowed the biological father visitation as soon as the child was born. The Mother and her husband stopped visitation in May 2007. In January 2009 the biological father filed a paternity action. The Mother and husband then separated. The biological father and mother entered into a paternity, support and other related relief agreement. The agreement contained language preserving his parental rights and he signed it. The Mother then got arrested for drug possession and the biological father refused to return the child to her. The child was returned via an emergency pick up order. The Mother and biological father then entered into a time sharing agreement with equal timesharing and financial obligations to the biological father.
The legal father then filed a motion to vacate the earlier agreement and final judgment of paternity. The trial court granted and vacated finding the January 2009 agreement contrary to state law and public policy rendering it unenforceable finding dual paternity a legal fiction. A guardian ad litem was appointed who testified it was in the child's best interest to preserve the "presumption of legitimacy" that arose from being born in an intact marriage. How does the analysis in this case compare with cases containing facts of same sex couples?

1. CHANGING TIDES IN SAME SEX FAMILY LAW IN FLORIDA-COMMENTATOR ARTICLE

Article attached with permission of the Commentator and the author.
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VIII. ATTORNEY FEES 12:45-12:50

1. DISCHARGED ATTORNEY ENTITLED TO HER CHARGING LIEN FOR PRIOR WORK PROVIDED-ERROR TO DISMISS IT

In the case of Courtney and the Courtney Law Firm v. Hall-Edwards, etc., et al., 39 FLW D540b (Fla. 3rd DCA) Opinion filed March 12, 2014 in a case not involving dissolution of Marriage, but still applicable as to the issue of charging liens, the DCA found that the trial Judge improperly denied fees to a discharged attorney who had properly filed a charging lien by erroneously concluding that the new attorney hired fought long and hard to reach a settlement and was more experienced than the prior attorney. The prior attorney was still entitled to fees for services provided and the decision denying fees was quashed and the case remanded.

1. ORDER ESTABLISHING ATTORNEY'S CHARGING LIEN WAS PREMATURE

In Higdon v. Higdon, 39 FLW D361a (Fla. 5th DCA) opinion filed February 14, 2014, the Wife appealed the Order granting a charging lien rendered in her pending dissolution of marriage case. The parties in whose favor the Order was rendered did not file an answer brief; and had withdrawn from representing Higdon before the dissolution action was concluded and filed a sworn Notice of Claim of Attorney's Charging Lien in the amount of $18,384.97 and a motion requesting entry of an order establishing a lien in that amount against specified property that had not as yet been distributed to either of the parties. The court summarily entered the Order establishing the lien without hearing Higdon's objections. Had the court heard Higdon's argument regarding prematurity, it may well have realized the charging lien could not be imposed until the dissolution case concluded. Too, the irregularity precluded Higdon's due process right to raise any equitable defenses she may have had and to dispute the amount claimed. This was error.

1. LAW FIRM NOT REQUIRED TO DISGORGE RETAINER BEING HELD FOR HUSBAND IN ORDER TO PAY WIFE'S ATTORNEY FEES AND COSTS

In Weissman v. Weissman, 39 FLW D195a (Fla. 4th DCA) opinion filed January 22, 2014, the firm representing the husband in a dissolution of marriage case appealed an order requiring it to disgorge one half of the liquid assets the firm was holding for the husband as temporary attorney fees and costs for the Wife without notice and an opportunity to be heard. While reversing, the court warned that if misappropriation of escrowed funds by attorneys of record is proven, the trial court may sanction and take control of the funds.
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IX. EQUITABLE DISTRIBUTION 12:50-12:55

1. A. CREDIT CARD DEBT INCURRED BY HUSBAND FOR DAUGHTER'S COLLEGE EXPENSES DAYS BEFORE FILING DATE WAS "MARITAL DEBT"

In Wagner v. Wagner, 39 FLW D372a (Fla. 2d DCA) opinion filed February 14, 2014, the husband appealed the amended final judgment with regard to alimony and marital debt. The alimony award was affirmed without comment. As to the marital debt, the DCA found the trial court erred in determining that credit card debt incurred prior to the date of filing, in the absence of a valid separation agreement, was not marital debt under sec. 61.075 (6) (a)(1)(a)Fl. Stat. (2011). Even though there is no obligation of a parent to provide for the college expenses of their child post divorce, this debt was incurred prior to and a marital debt under the plain language of the statute.

1. WITHOUT EVIDENCE OF A VALID SEPARATION AGREEMENT, EITHER ORALLY OR IN WRITING, THE DATE OF FILING PREVAILS AS A CUTOFF DATE FOR CLASSIFICATION OF MARITAL ASSETS.

In Broadway v. Broadway, 39 FLW D417e (Fla. 1st DCA) opinion filed February 21, 2014, Pursuant to Sec. 61.075 (6) & ((7) a Camper purchased by husband before a petition was filed should have been classified as a marital asset in the absence of a valid separation agreement reflecting an earlier date.

1. X. ETHICS___________________________________________________ ___12:50-1:00
   1. JUDGE SHOULD NOT HAVE SENT FACEBOOK FRIEND REQUEST TO PARTY IN CASE HE WAS PRESIDING OVER AND THEN REFUSE TO RECUSE HIMSELF.

In Chace v. Loisel, Jr, 39 FLW D221a (Fla. 5th DCA) opinion filed January 24, 2014, a male Judge sent a Facebook friend request to a female in a case he was presiding over and when she did not respond and filed a Motion to disqualify him, he denied it. This was error.

1. ERROR TO HOLD ATTORNEY NOT A PARTY TO DISSOLUTION ACTION IN CONTEMPT FOR FAILURE TO TRANSFER FUNDS FROM HER TRUST ACCOUNT.

In Cavallaro v. Omni Properties and Nancy Cavallaro, 39 FLW D353c (Fla. 3rd DCA) opinion filed February 12, 2014), Michelle Cavallaro, a member of the Florida Bar, but not a party to the dissolution of her parents' marriage in the circuit court, appeals an order holding her in contempt and imposing attorney's fees and costs (on her mother's motion) against her. In response to the Mother's attorney's request that she disburse funds from her trust account pursuant to an order, Michele responded that the Order required her to disburse funds from her trust account to her Mother and not her Mother's attorney. She also responded that she needed to await the appeal time period of thirty days before disbursing the funds. The former Wife (Michelle Cavallaro's mother) moved for contempt. Michelle then moved to vacate the final judgment as it pertained to Omni and to strike the motion for contempt and stay the final judgment pending appeal. She appeared at a hearing on the Motions. The trial court directed her to disburse the trust account funds to her Mother's attorney and she agreed to do so and wired the funds the next day. The trial court denied her motion to vacate and strike and awarded the former wife attorney fees and costs against Michele for failure to comply.
To insure the orderly administration of justice, Florida courts have the inherent power to hold parties in contempt for intentionally failing to obey a court order.
Michele Cavallaro promptly wired the funds as directed. Her position regarding Omni Properties apparently was persuasive, because the trial judge altered that provision of the final judgment to abate the execution of a deed pending the former husband's appeal. There was no indication whatsoever from the record that she raised her concerns in bad faith or to interfere with the orderly administration of justice. The order of contempt and the imposition of attorney's fees against the appellant were vacated.