Family Law Case Law update 4/4/13

FAMILY LAW CASE LAW UPDATE
APRIL 4, 2013
DISSOLUTION OF MARRIAGE-ALIMONY-MODIFICATION
In Smith v. Smith, 38 FLW D637a (Fla. 4th DCA opinion filed March 20, 2013), The Trial court was found to have properly denied the Former Husband’s Supplemental petition for modification of alimony seeking to terminate his alimony obligation on the grounds that the Former Wife was in a supportive relationship. Because the parties marital settlement agreement provided that alimony was non-modifiable regardless of any change in circumstances the request was denied.
DISSOLUTION OF MARRIAGE-EVIDENCE-PSYCHOTHERAPIST
In Carillo-Jimenez v. Carillo, 38FLW D651a (Fla. 4th DCA opinion filed March 20, 2013), the Father petitioned the DCA for a writ of cert. to quash a trial court order denying his amended motion to strike a social investigation report. His grounds for seeking to strike the report were that the child disclosed confidential information to the therapist, which was then disclosed to the author of the report without the consent of the minor children-whom has no appointed guardian ad litem in violation of 90.503 Fla. Stat (2010). The DCA held that the Father lacked standing to assert child’s psychotherapist/patient privilege. Citing Hughes v. Schatzberg, 872 So.2d 996, 997-998 (Fla. 4th DCA 2004), which held that a parent lacked standing to assert a statutory privilege found in 90.503 on behalf of their minor child, where the parent is involved in litigation seeking to pursue his or her own interests and the child is not a party to the underlying action, the DCA stated that as the Father sought to have the report stricken because he thought it would be to his disadvantage in a custody dispute in the dissolution proceeding, this case fell squarely within the rationale for the holding in Hughes and accordingly upheld the trial court’s denial.
CHILD SUPPORT-MODIFICATION-VENUE
In Ozuna v. Sheard, 38 FLW D657b (Fla.3rd DCA opinion filed March 20, 2013), The Mother filed a petition for modification of child support and to establish a parenting plan in Miami-Dade County-the jurisdiction where she originally obtained a final administrative support order. The trial court transferred venue to Broward County, the county where the parties resided at the time of filing the petition for modification. The Mother appealed the transfer of venue and the DCA agreed. The Father based his Motion for transfer on sec. 742.021 Fla. Stat. (2012), which provides that proceedings for the determination of parentage “must be in the circuit court of the county where the plaintiff resides or the county where the defendant resides.” The Father acknowledged that the support order issued and parentage had already been established. The trial court did not set forth any reasons or grounds upon which it relied to transfer the case for improper venue, but simply granted the Father’s motion. An abuse of discretion standard governed the review of the order which transferred venue. The venue a party chooses is presumptively correct, and the burden lies with the party contesting to demonstrate an impropriety, See Foti v. Camejo, 812 So. 2d 507, 508 (Fla. 3d DCA 2002). The Father’s argument that venue must be based on sec. 742.021 is misplaced as paternity was not at issue. Miami-Dade is the forum within which the court entered the original support order, thus it is a proper venue for the Mother’s child support modification action. Reversed and remanded to the trial court with instructions to proceed with the Mother’s Verified Petition For Establishment Of Parenting Plan and Modification of child support.