Case Law Update

ALIMONY
Margaretten v. Margaretten, 37 FLW D2660b
Trial court erred in awarding permanent alimony to Wife of 16 year 8 month marriage without maiking a specific finding that, “no other form of alimony is fair or reasonable under the circumstances of the parties.” Sec. 61.08(8) Fla. Stat.
Holding-In anything less than a presumptive 17 year plus marriage wherein you are seeking permanent alimony, you must present evidence and have the court rule based on that evidence that permanent alimony is the only form of alimony that is fair and reasonable under the circumstances of the parties.
Scott v. Scott, 37 FLW D2653a
A 5th DCA case. The Former Husband moved to modify his alimony obligation citing deteriorating health and increased expenses, including health insurance and medication. The trial court erred where even though the court apparently did not find the representations in his financial affidavit to be believable his health insurance expenses and medication costs alone supported a modification to something less than the $500.00 per month ordered. At the time of trial the Husband has been accepted as PTD by SS and was receiving $1,828.00 per month and the Wife made $2,458.00 per month. Because the modification made left him unable to meet his reasonable needs, the case was reversed and remanded for the “lower court to reduce the alimony obligation to an amount that allows both parties sufficient funds to meet their reasonable needs.
FULL FAITH AND CREDIT FOREIGN CONTEMPT ORDER
Weiss v. Weiss, 37 FLW D2625a
This is the second time we’ve seen this case-See 973 So. 2d 1247 (Fla. 2d DCA 2008)
This is a complicated case appealed from Judge Elisabeth Adams regarding the full faith and credit clause. In summary the Husband failed to abide by provisions of the parties MSA re: equitable distribution. The Illinois Court who entered the Final Judgment has contempt powers including incarceration whereas in Florida one cannot be incarcerated for now complying with a term of equitable distribution as opposed to support. The issue of incarceration was not properly before the court, so they did not rule on it as no incarceration had been ordered. The Court found that under the full faith and credit clause after the Illinois judgment was domesticated it gets enforced under Florida Law. The Trial judge ordered statutory interest under Florida law, which was correct, but only for the time period after the Order has been domesticated in Florida. Prior to that time period the Court remanded to recalculate interest under Illinois law.
Holding-Once you domesticate a foreign judgment, it will be enforced under Florida law and not the issuing jurisdiction’s law.
CHILD CUSTODY AND THE UCCJEA
Edgar v. Firuta, 37 FLW D2596b
This is along convoluted case in which the Mother lived with the children in North Carolina and the Father lived in Key West. After the initial DOM the parties lived together in Florida but never remarried. The parties dissolved the marriage in North Carolina but the Final Judgment contained no parenting plan. The father moved to modify in Florida and attached the NC FJ. Florida took jurisdiction ultimately entering an Order that Mom could not leave with the youngest child back to NC. Mom violated that Order and filed in NC without notifying the NC court that an action was pending in Florida. After the appeal was filed Mom voluntarily withdrew her action in NC. The Florida court entered a scathing Order against Mom. The Appellate court noted that punishment of the Mother for violation of their Order may effect, but does not conclude, the inquiry regarding the trial court’s assessments of the best interests of the child for purposes of 61.13 and 61.13001. Finding that the Order entered failed to include evidentiary findings regarding the other requirements for modification, most notably that a “substantial change in circumstances had occurred since entry of the previous custody order that was not reasonably anticipated at the time that the previous order was entered.” The court remanded for those findings. The court also held that awarding the Father attorney fees and costs was error as the court made no finding of Mother’s ability to pay or the Father’s need, nor did it go through the Rosen factors.
Holding:-There are three holdings here: 1) when asking a Florida court to domesticate or modify a foreign judgment, Florida law will be applied and evidence supporting same must be presented and ruled upon. If modification is being requested, the petition must allege and prove a substantial change in circumstances . . “. 2) Even though the Mother invited swift and firm judicial action when she violated the Florida Order and relocated with the youngest child back to NC, the Court must follow the mandates of proving what is in the child’s best interest when addressing a request for relocation. That test is what is in the best interest of the child and not which parent acted badly. While bad behavior can be considered, it cannot end the inquiry. 3) All requests for attorney fees must consider need and ability to pay.
ATTORNEY FEES
Perez v. Perez, 37 FLW D2605a
In this Second DCA case the court reiterates that an award of attorney fees is governed by 61.16 and the court must consider the financial resources of the parties and must look to each spouses’ need for suit money versus each spouses respective ability to pay. The court stated that ‘the consideration of need and ability to pay includes a consideration of the overall financial resources of each of the parties, not just income and earning capacity. The court also cited Rosen in adding. “In addition, a trial court may also consider “any factor necessary to provide justice and ensure equity between the parties.” Because the trial court made insufficient findings as these factors, the attorney fee award was reversed and remanded. The court set out some specific language for guidance on remand. Specifically the record contained several conflicting facts.
Holding: An award of attorney fees must be overturned if the court’s order does not contain the evidence used to support the factors under 61.16 and any other evidence considered under Rosen to support the award.
INJUNCTION FOR REPEAT VIOLENCE
Johns v Penzotti ,37 FLW D2535a.
A very short Second DCA opinion wherein an Order of Injunction was reversed because there was no evidence of two or more instances of violence or stalking that caused substantial emotional distress and served no legitimate purpose.
Holding: An injunction for repeat violence will be reversed unless the record contains competent, substantial evidence to support the statutory requisite of two or more incidents and evidence of the incidents causing a reasonable person to suffer substantial emotional distress.
EQUITABLE DISTRIBUTION
Tradler v. Tradler, 37 FLW D2571b
Another Second DCA case. This one is well worth reading in its entirety and involves a seventeen year marriage with non-marital assets. There are several issues that were reversed. 1) The court reversed the court’s valuation of the Husband’s retirement benefits because the trial court failed to take into account penalties with early withdrawal and their tax consequences where the record supported it was more than likely he would have to cash them in to meet his obligations under the equitable distribution scheme. On remand, the court had to consider this when assessing the value of those assets. 2) The court erred under by assessing the full value of liquid marital assets from the date they were valued where by the date of trial there was evidence some of the monies had been used for ordinary living expenses and no evidence of marital waste. On remand, the court had to deduct the amounts dissipated between valuation date and trial absent any findings of marital waste and use that amount for equitable distribution. 3) The value of the husband’ retirement account wasn’t supported by competent substantial evidence where both parties had their accountants testify as to value. The court used the value that included the increase in value after the date the petition was filed. Also a portion of the value was non-marital. This issue was remanded with additional evidence to be taken if needed. The marital portion as of the date of filing is the value the court wanted established for purposes of equitable distribution. 4) The court erred by including non-marital property into the ED. Specifically, four checks were given to the Husband by his mother totally $64K. The court distributed $32K to the Wife in error. Because the husband never comingled check #2 which he took from a CD in his name alone and deposited into an account in his name only, it was non-martial. Because checks’s numbered 3 & 4 were taken from CDs in his name alone and deposited into a joint account, but after the date of filing, they too were non-marital. The amounts of the checks 2, 3, & 4 and any interest accrued on their funds were the Husband’s non-marital property and had to be deducted on remand. Important holding here is the finding of monies voluntarily placed into a joint account being classified as non-marital because they were deposited after the date of filing.