Family Law Case law Update 1.27.13

FAMILY LAW/ CASE LAW UPDATES 1.27.13
CHILD SUPPORT/EQUITABLE DISTRIBUTION:
In a very linguistically instructive case, the Fourth DCA, in the case of Gorney v. Leger, 38 FLW D105a, in an opinion filed on January 9, 2013, found merit and addressed two of the four issues raised on appeal. 1) Whether the trial court erred in ordering the Husband to maintain life insurance to secure alimony and child support; 2) whether the trial court erred in including diminished or depleted assets as part of the equitable distribution scheme.
In this case, the parties were married 16 years and two children were born of the marriage. The Wife was awarded $1,500.00 a month in durational alimony for 14 years. The Husband was ordered to secure the payment with a 50K life insurance policy with Wife as beneficiary. The Husband was also ordered to pay $656.00 per month in child support and $100.00 per month toward a $1,300.00 arrearage. The Husband was further ordered to purchase at least $150K in life insurance to secure the child support payments. The order to purchase life insurance to secure alimony and child support is reviewed for abuse of discretion. See Konsoulas v. Konsoulas, 904, S0 2d 440, 445 (Fla 4th DCA 2005). While the trial court has authority to order a party to obtain life insurance to secure the payment of alimony or child support, it must make specific evidentiary findings: 1) availability and cost of insurance; 2)The obligor’s ability to pay for the insurance; and 3) special circumstances that warrant the requirement for security of the obligation. Failure to make all these findings constitutes reversible error.
In this case, the trial court failed to include any findings of special circumstances, availability and cost, or the Husband’s ability to pay for the life insurance. Therefore, this issue was reversed and remanded to make the requisite findings. In addition, the trial court was instructed that if said findings mandated the order of life insurance to cover the child support obligation, the children and NOT the mother were to be named as beneficiary. The wife could be named beneficiary only of a policy to cover her alimony obligation.
With regard to the second issue, the trial court attributed to the husband the value of $117,315. for a specific bank account, despite the fact that the value was only $3,284. at the time of trial. The standard of review of a trial court’s determination of equitable distribution is abuse of discretion. As a general rule, it is error to include in the equitable distribution scheme assets or sums that have been diminished or depleted during the dissolution proceeding absent evidence of the spending spouse’s intentional dissipation or destruction of the asset, and the trial court’s specific findings that the dissipation resulted from intentional misconduct. Intentional misconduct is demonstrated by evidence that one spouse used the marital funds for one party’s “own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.” Id. (quoting Romano v. Romano, 632 So. 2d 207, 210 (Fla. 4th DCA 1994). The trial court did not make a finding of intentional misconduct by the husband related to the reduced balance in the bank account. Therefore, the inclusion of the depleted asset in the equitable distribution by the trial court was error. Reversed.
APPEALS:
Christ v. Christ, 38 FLW D121a The First DCA in an opinion filed January 10, 2013, after consideration of the Court’s Order to show cause, determined it lacked jurisdiction. A Supplemental FJ adjudicating child support arrearage and modifying child support was an appealable final order. The FJ was entered on 7/6/2012. The Appellant’s motion to vacate was not filed within 10 days as required by Fla. Fam. L. R 12.491(f); and was therefore untimely. The Appellant tried to invoke Fla. R. Appellate Pro. 9.130(a)(5), which provides for appellate review of an Order on a motion to vacate. However, as the DCA pointed out, the underlying order was not timely and therefore the DCA was without jurisdiction to review even though the appellate rule allowed for review of such an order. The Appellant also filed a Motion for rehearing in the lower tribunal, which was denied by Order dated 8/24/2012. The DCA refused jurisdiction to review stating, “Although a motion for rehearing is capable of delaying rendition of the underlying order where the motion is both timely and authorized, see Fla. R. Appellate P. 9.020(h), here, this motion was timely but not authorized.” The court also noted that the Order denying rehearing is not independently reviewable. In other words, you can’t ask the appellate court to review an order denying a rehearing of an underlying order where contest to same was not timely made. Not surprisingly, the Appellant was pro ce.
CHILD SUPPORT/JURISDICTION/ENFORCEMENT OF FOREIGN JUDGMENTS:
The Fifth DCA in Gorney v. St. Leger, 39 FLW D129, in an opinion filed January11,2013 found that there was insufficient evidence to determine if the Appellant had not been served and remanded for a hearing to determine same. In a confusing opinion it appears that Dad- who had long been evading paying child support as his arrearage was almost $200,000.00 -wins on a technicality. The best way to piece this case together is to lay it out chronologically:
-Mom files a petition for domestication and enforcement of a Tennessee judgment.
- 9/11/2007 the Sheriff filed a return of non-service. The resident at the place of service advises the Sheriff that Dad lives in the Cayman Islands.
-5/23/2008 Mom files an amended Petition to domesticate and enforce and files a Motion for Contempt.
-6/7/2008 Mom files a Notice of filing original affidavit of service of alias summons-personal service on an individual, served upon substitute for respondent. The affidavit indicates they served Dad's son as the Florida address.
-Dad then sends a certified letter to the court stating he has been a resident of the Cayman Islands since May 2007 and his home in Florida is rented and service should not be accepted there. The court treated this as a Motion to Quash service and directed a hearing to be held. This is where things went awry.
-Counsel for Mom then mailed all the pleading to Dad in the Cayman Islands, but did not personally serve them.
- 9/2/2010 the trial court set the matter for trial.
-11/3/10 the trial court entered a FJ of domestication and enforcement finding Dad almost 200K in arrears.
-Dad files Motion for reconsideration, rehearing, to vacate FJ and to dismiss asserting that substitute service was invalid and Motion to Quash was never heard.
-3/3/2011-Trial Court enters order on Dad’s Motions and grants Motion to Vacate FJ and Motion to quash, denies Motion to Dismiss
-5/3/2011 Counsel for Mom again mails all the pleading to Dad’s attorney and indicates in a cover letter that pursuant to Fla. R. Civ. P 1.080(b) and Fla. Fam. L R. 12.080 (a)(1) service is perfected and an answer is expected.
6/15/2011-case mgmt. order entered, which included. “To date, service of said Petition has not yet occurred.” The Court further Ordered Mom to send a Notice of recording of Foreign Judgment via certified mail return receipt and to file proof of same with the Clerk of Court within 60 days. (it appears Counsel mistakenly took this mandate as meaning that "service" could be perfected via certified mail.
-8/12/2011 Mom filed the certificate of service of pleadings with an attached domestic return receipt showing all had been served on Dad’s counsel. Again, no personal service made on Dad.
-10/25/2011 After 20 days came and went, Mom files for judicial default apparently thinking she had properly effected service.
-10/26/2011 Trial Court entered an Order on second case mgmt. conf. explaining in the Order that both counsel were present, that "service" had been effectuated, and setting Final hearing for 11/28/11.
-11/7/2011 Dad filed Motion for relief from Judgment and objection to default asserting in pertinent part that the Former Husband was never personally served with the Amended Petition for Domestication. The Motion also asserted that Court intended to state "registration" had been effectuated and that inclusion of the word "service" was a clerical mistake citing Rule 1.540 and requesting the court correct the "clerical error".
-11/15/11 Mom sends Dad a request to Produce and standard family law interrogatories. Same day, Dad files an objection on the grounds that there is no pending action and moves for a protective Order.
-11/16/11 Dad files a Motion to Dismiss the Petition for Domestication and enforcement for lack of service
-11/18/11 the trial court enters an Order denying Mom’s Motion for judicial default and denying Dad’s motion to strike Mom’s Motion for contempt, denying his motion for protective order and denying his Motion to Dismiss.
-Dad appeals the two non-final Orders. One which determined personal service had been effectuated and setting the case for hearing on the Amended Petition to Domesticate and enforce the foreign judgment; and two, a composite order denying his motion to strike Mom’s Motion for Contempt, his motion for protective order, and his motion to dismiss the Amended petition.
The DCA reversed and remanded. After reviewing this lengthy chronology, the court concluded that Mom was unable to effectuate personal service of the original petition evidenced by return of non-service. Mom did not effectuate persona service of the Amended petition as evidenced by the court’s order quashing service of process. Counsel sent the pleadings via certified mail return receipt requested, but there was no return of service subsequent to the Court’s order quashing service of process, nor was that Order ever vacated. Therefore, there was nothing in the record from which the DCA could determine that personal service, which is required for a petition to domesticate and enforce a foreign judgment, was ever made. Reversed and remanded to determine the issue of service of process.