Family Law Case Law update April 30, 2013

CHILD CUSTODY-TIME SHARING
In Fernandez v. Wright, 38 FLW D785a (Fla. 2d DCA opinion filed 4/10/13), the Mother appealed an Order entered following her filing of a Supplemental Petition for Modification of Child Support and the Father’s Motion seeking additional time sharing, attorney fees and enforcement of a prior order. The Court modified the parenting plan to suspend the Mother’s time sharing during Father’s week to remedy her non-compliance with the previous parenting plan. The DCA reversed and remanded for clarification that the remedy was temporary. The father also asked for attorney fees from an injunction case. The court noted that the award of attorney fees in a Chapter 741.30 case rests with the legislature. The award of attorney fees for the injunction case awarded by the trial court was reversed as section 741.30 does not provide for attorney fees as chapter 61 does.

DISSOLUTION OF MARRIAGE-CHILD CUSTODY-RELOCATION WITH CHILD
In Rivero v. Rivero, 38FLW D811a (Fla. 4^th DCA opinion filed 4/10/13), the Former Husband filed an appeal to a non-final order permitting his former wife to relocate to North Carolina with their minor son on a temporary basis. The Order was reversed as an abuse of discretion because the trial court failed to hold an evidentiary hearing as required by section 61.13001(b)(6) Fla. Stat. The trial court found that the Former Husband’s verified answer related back to the original unverified answer, which was filed timely. The failure to verify a pleading which, by statute, is required to be verified does not constitute a jurisdictional defect; verification can be cured by filing an amended verified pleading which shall relate back to the original pleading. See Green v. Burger King Corp, 728 So. 2d 369, 370-372 (Fla. 3d DCA 1999) see also Fla. R. Civ. P. 1.190(c). Reversed and remanded for an evidentiary hearing pursuant to section 61.13001(b)(6) Fla. Stat.

ADOPTION
In D.M. v. Berkowitz, 38 FLW D812 (Fla. 4^th DCA opinion filed 4/10/13), the biological father of a child adopted through a private placement adoption agency sought cert. review of the trial court’s order denying him access to pleadings filed in the adoption of his biological child. He was contesting the termination of his parental rights in an ancillary proceeding; and pled the need for the adoption file to determine how his consent was obtained and to defend himself in that action. His petition was granted.
The biological Mother and Father were married at the time of the child’s birth. The Father signed an affidavit of non-paternity about six weeks before the child was born. After the birth, a petition for termination of his parental rights was filed. The father filed a motion to set his affidavit aside arguing it was obtained without the aid of counsel, under duress and without understanding the consequences of same. He also argued that section 63.042 violated the equal protection clause of the constitution because it treated birth mothers differently than birth fathers.
The adoption entity objected to his access to the file citing the confidentiality provisions of section 63.089(8) Fla. Stat, which provides: All papers and records pertaining to the adoption, including the original birth certificate, whether part of the permanent record of the court or a file in the office of an adoption entity are confidential and subject to inspection only upon order of the court . . ..The order must specify which portion of the records are subject to inspection, and it may exclude the name and identifying information concerning the parent or adoptee.
Section 63.162(4) prohibits any person from disclosing the identity of the birth parent, adoptive parent, or adoptee, except under specific circumstances including a court finding of good cause.
The Father gave notice of his request for access to DCF, even though it was a private adoption, and the court required DCF to give advice. DCF took no position. The trial court denied the Father’s Motion after several hearings citing to section 63.162(4) and its requirement for good cause. The court did not find good cause.
In his petition for cert, the father alleged a departure from the essential requirements of law by the denial of access relating to his parental rights and did not seek or request any documents that would violate the privacy of the birth mother, child or proposed adoptive parents stating, “Due process, requires at a minimum that he be allowed to review the documents being used against him to terminate his parental rights.”
The DCA, stating that the Respondent must be given an opportunity to admit or deny the allegations in the petition for termination of his parental rights filed pursuant to section 63.087 Fla. Stat., which requires an answer and appearance, clearly evidences that he is a participating parent and a party to the proceeding and is entitled to appear, defend and contest the proceeding on any legal or factual basis that would be grounds for defending the termination of his parental rights. As such, the DCA failed to understand how he would not be entitled to see the papers and pleadings filed in the proceeding to take away his rights. The DCA clarified that the requirement for “good cause” applies to persons who are not parties to the proceedings, noting that even if the good cause requirement applied, he established it. The father’s petition was granted with directions for the trial court to conduct an in camera inspection of the files so identifying information regarding the adoptive parents could be redacted.


DISSOLUTION OF MARRIAGE-ATTORNEY FEES-EQUITABLE DISTRIBUTION
In Kunsman v. Wall, 38 FLW D813b (Fla. 4^th DCA opinion filed 4/10/13) the former Wife appealed the trial court’s order denying her exceptions to the Magistrate’s report. The DCA found error in the Magistrates award of attorney fees pursuant to section 57.105 and section 61.16 associated with a motion to compel delivery of a quit claim deed for a share of the marital home where the husband did not plead that basis for entitlement to fees in his original motion to enforce the final judgment. The Magistrate also erred by finding that monies withdrawn to pay for tuition of an adult child was a marital obligation and that monies withdrawn for “miscellaneous family expense” was spent on marital obligations where the only evidence was argument of counsel. However, the Judge correctly determined that monies withdrawn from a joint account to pay for criminal defense of a child still a minor was a marital obligation. Finally, the trial court erred by failing to award interest on monies distributed from a Deferred Retirement Option Plan (DROP) based on the value of date of filing where the former wife would not receive the funds until the former husband actually retired and the monies were disbursed to him. The case was reversed and remanded for the trial court to correct the DROP fund award to include interest and cost-of-living adjustments; to equitably divide money spent on son’s tuition and misc. family expenses. The award of attorney fees was stricken.

DISSOLUTION OF MARRIAGE-CHILD CUSTODY-MODIFICATION-FINAL JUDGMENT
In Parnell v. Parnell, 38 FLW D829b (Fla. 5^th DCA opinion filed 4/12/13) The former wife appealed the final judgment on the former husband’s supplemental motion for modification entered by the trial judge after granting her motion for disqualification. The parties were divorced in 2008. The court reserved jurisdiction to revise the former husband’s contact schedule upon the parties’ child starting school. The former husband filed his supplemental petition two years later to modify that schedule. The matter proceeded to trial and the trial judge directed the parties to “figure out” the remaining holiday and summer break schedule issues and work together to prepare a proposed order. Both parties were represented by counsel. Six days later the former wife filed a motion to disqualify the trial judge alleging he made inappropriate, disparaging statements about her attorney and used profane language during the case. The trial judge granted the motion and recused himself from all future cases involving the former wife’s counsel and the associates within the firm.
Two months later, the same judge entered a final judgment on the former husband’s supplemental petition. The former wife disputed his authority to do so. The DCA noting that before Fischer v. Knuck, 497 So. 2d 240 (Fla. 1986), upon the disqualification or recusal of a judge, any subsequent action on the case by the judge was void. After Fischer, the supreme court set forth an exception that allows a trial judge to retain authority to perform the ministerial act of reducing a ruling to writing, providing that the judge has heard the testimony and arguments and rendered an oral ruling in a proceeding. However, any substantive change in the judge’s ruling would not be considered a ministerial act. Id. at 243.
In this case, the trial court ruled on many of the issues raised and the parties stipulated to others, but there remained issues left for the parties to “figure out.” Nothing within the record reflected a meeting of the minds on those issues, and the parties were not in agreement that the order entered complied with the oral pronouncements and whether it contained provisions not pronounced at the conclusion of the trial. As such, the ministerial exception did not apply and the modification order was reversed as void.