Family Law Case Law Updates April 23, 2013

FAMILY LAW CASE LAW UPDATES
ADOPTION-ADULT ADOPTION
In Goodman v. Goodman, 38 FLW D696b (Fla. 3d DCA opinion filed 3/27/13). (This is a long, but very interesting case. You will recognize the facts as it has been all over the news) The Mother and Guardian Ad Litem appealed the trial court’s order denying their motion to intervene and motion to set aside the final judgment of an adult adoption. Goodman was the very wealthy guy from Palm Beach who got into a car accident in 2010 while under the influence when he hit a killed a 23 year old man, Scott Wilson. Goodman was convicted of DUI manslaughter with failure to render aid and vehicular manslaughter. He was sentenced to 16 years in prison. Previously, in 1991 an irrevocable trust had been set up for the children with his wife at the time. It provided for their two children to share equally in the corpus of the trust. In 2010 Goodman was involved with his now ex-wife in litigation in Delaware over management of this trust. The Wilson family also brought civil suit against Goodman in Palm Beach County. While discovery was pending in both these actions, Goodman filed a petition in Miami-Dade to adopt his adult girlfriend. He gave no notice to his ex-wife, his two children or the Wilson family. In October 2011 the trial court approved the adoption, which made his 42 year girlfriend an immediate one third beneficiary of the trust as one of his “children.” Goodman and his girlfriend then entered into an adoption agreement that provided the girlfriend would immediately receive a 5 million dollar testamentary appointment and another 3 million dollars before the end of 2012, and continued distributions throughout her lifetime, valued at an estimated 8.75 million. Their Agreement also provided she could request additional amounts from the trust at the sole discretion of Goodman’s business agent with no limitations or criteria for her additional requests from the funds.
In January 2012 after the time period to appeal the adoption has expired, Goodman notified the parties in Palm Beach County and in Delaware. Thereafter, the Guardian and Mother filed Motions to intervene and set aside the adoption. Goodman settled the Palm Beach action. The trial court denied the Motions finding that the lack of notice did not equal fraud required for the reversal of the adoption. The denial of a Motion to set aside a judgment is reviewed under an abuse of discretion standard. However, the basis for the trial court’s denial of the motion to set aside, which was the trial court’s statutory interpretation is reviewed de novo.
The trial court found that section 61.182(2)(a) entitled the guardian and the mother to notice. The Guardian and Mother argued correctly that the lack of notice violated the minor children’s due process rights because the conversion directly threatened their financial interests. Therefore, the trial court correctly ruled that they were entitled to notice, but erred when it refused to set aside the final judgment on due process grounds, because the lack of notice deprived the children of the right to address the trial court and present their objections to the adult adoption. The trial court further erred by denying the children’s Mother’s motion to intervene on the grounds that she did not stand to gain or lose by the effect of the adoption judgment. However, the Mother brought her motion in a representative capacity on behalf of her minor children, which Florida law permits. A natural parent is always a natural guardian even if a guardian ad litem has been appointed. Therefore she had standing to file on behalf of her minor children. See Parish v. Price, 71 So 3d 132, 133 (Fla. 2d DCA 2011). Based on this reasoning the final judgment of adult adoption was set aside because Goodman’s deliberate failure to provide notice of the adoption to the Guardian Ad Litem and his children’s Mother constituted fraud of the court. In Florida, a decree of adoption may be set aside based on fraud in the proceedings, which has been defined as the prevention of an unsuccessful party from presenting his case; keeping the opponent away from the court. Whitman v. Whitman, 532 So. 2d 82, 83 (Fla. 3d DCA 1988). The case was remanded with instructions to vacate and set aside the Final Judgment of Adult Adoption, and allow the Guardian Ad Litem and the children’s Mother to intervene in any subsequent proceedings.
DISSOLUTION OF MARRIAGE-EQUITABLE DISTRIBUTION
In Capote v. Capote 38FLW D 683a (Fla. 2d DCA opinion filed 3/27/13), the DCA reversed the final judgment and remanded to the trial court to correct the equitable distribution schedule to reflect the liability reductions. The trial court has initially assigned the Husband the entire values of the properties acquired during the marriage. As a result of a motion for rehearing the trial court reduced these awards to one-half their value, but failed to reduce the mortgage amounts and property tax liability by half.
The husband also appealed the valuation of his business arguing his father was a one half owner and had contributed to the down payment. There was no evidence to support the contention and the business lost any separate non marital character because the Husband used the business’ operating account to pay personal family expenses. The Husband also argued that the trial court’s award of $72K+ in insurance proceeds from a home burglary was error where the funds had been depleted before the final hearing for family and business expenses and because $62K= of the funds were for nonmarital property stolen. These funds had been deposited into the business account without the wife’s knowledge or consent. The trial court’s ruling on this issue was affirmed because if a spouse’s misconduct resulted in the dissipation of a marital asset, it is proper to assign the dissipated asset to the spending spouse. However, the DCA did note a small miscalculation on the value in the amount of $233.00 in the husband’s favor to be corrected on remand.(the opinion does not address the Husband’s argument that a large portion of these funds was non-marital. I assume that because they were deposited into the usiness account and the court found that the business lost any nonmarital identification becasue he used the funds from the business account to pay family bills, s did the insurance funds).
The Husband also appealed the issue of a personal loan. The trial court assigned the entire loan amount of $55K –a loan he made against his wife’s wishes, but entitled the wife to one half of any repayment of that loan. By assigning this entire “asset” and its risk of nonrepayment to the husband, and then equally dividing the parties’ total assets and liabilities, the trial court effectively awarded the Wife $27,500.00 in other assets in place of her one half share of any loan repayment. The issue was remanded with directions to resolve this conflict.
Therefore, the Final Judgment was reversed and remanded to correct the equitable distribution schedule with regard to the liability reductions on the properties, to correct the small mistake in the valuation of the business and remove the statement that the wife was entitled to one half of any repayment from the loan.
PATERNITY-CHILD SUPPORT MODIFICATION-VENUE
In Mann v. Mann, 38 FLA D765a (Fla. 5th DCA opinion filed 4/5/13) a paternity action originated in Hillsborough County. A supplemental petition to modify child support was filed in Putnam County. Although Putnam County was not an incorrect venue, the court has discretion to transfer the case to Hillsborough County in the interest of Justice against the appellants challenge, pursuant to section 47.122 Fla. Stat. Affirmed.
DISSOLUTION OF MARRIGE-ALIMONY
In Huffman v. Huffman, 38 FLW D751b (Fla. 2d DCA opinion filed 4/3/13) the husband appealed a final judgment and the wife filed a cross appeal. The husband paid alimony during the pendency of the proceedings from 2004-2006. The original action was filed in 2004 and the final judgment entered in 2007. The Amended final judgment awarded retroactive alimony to b added to her equalizer payment, subject to credit for alimony already paid. The payments were referred to in the original final judgment and the amended final judgment failed to take them into account. Therefore, the case was reversed and remanded to take his alimony payments already made into account and give the husband credit.
DISSOLUTION OF MARRIAGE-CHILD SUPPORT
In Bazzel v. Bazzel, 38FLWD752a (Fla. 2d DCA opinion filed 4/3/13) the wife challenged the final judgment which gave the husband 100% of the child support to provide for the children 60% of the time. The DCA found that the trial court abused its discretion is establishing the income of the parties. The amount used did not agree with the financial affidavit filed and the husband’s testimony was that the financial affidavit was accurate. The trial court also abused its discretion by requiring the wife to pay the husband the percentage of the total support reflected by the guideline even though she was to have them 40% of the time. Remanded with instructions to use the correct incomes and percentages.
DISSOLUTION OF MARRIAGE-SETTLEMENT AGREEMENTS
In McDonald v. McDonald, 38 FLW D745b (Fla. 4th DCA opinion filed 4/3/13) the husband appealed the nonfinal order granting the wife’s motion for enforcement of the parties settlement stipulation arguing that the court erred in finding him in default of the settlement stipulation under both a contractual and a contempt theory. The DCA agreed and reversed finding that the trial court misinterpreted the meaning of the agreement as giving the wife power to force the sale of the home if he was unable to remove the wife’s name from the mortgage. However, the agreement contained conditions precedent to being able to force the sale of the home and she could only do so if he failed to make the mortgage payments, which he had not done. There was also no evidence that he willfully failed to remove her from the mortgage indebtedness. Reversed.
DISSOLUTON OF MARRIAGE-CHILD CUSTODY
In Bak v. Bak, 38FLWD743a (Fla. 4th DCA opinion filed 4/3/13) the husband filed an appeal of the trial court’s order denying his motion for reconsideration. Appeal dismissed as untimely as not filed within 30 days of the date of the order rendered.



DISSOLUTION OF MARRIAGE-MARITAL SETTLEMENT AGREEMENT-ENFORCEMENT-ALIMONY
In Conway v. Conway, 38 FLW D724b (Fla. 1st DCA opinion filed 4/3/13) the wife appealed award of $31,850.85 in additional alimony, but declining to award her prejudgment interest or attorney’s fees. The DCA affirmed the award of additional alimony but reversed and remanded on the issue of prejudgment interest and attorney’s fees. The parties agreed that resolution of the case is largely determined by what the parties meant in using the term “bonus” and “receives” in their MSA, which failed to state whether the Wife’s share of the husband bonuses should be calculated from his gross or net income. Parole evidence may be admitted to explain or clarify an ambiguous term. Once determined eat parole evidence is necessary to establish the parties’ intent, the court’s findings are a question of fact reviewed as to whether they are supported by competent substantial evidence. Competent substantial evidence existed for the finding of the amount of additional alimony awarded.
Because additional alimony was awarded for the amount the wife was owed from the husband’s bonuses she had a right to the amount she was underpaid each year. Because this was a vested right of the payee when the payment was due, the trial court erred in failing to grant her prejudgment interest. See Ulander v Ulander, 824 So. 2d 309, 310 )Fla. 1st DCA 2002).
Lastly, the DCA looked to the MSA to determine if the trial court erred in failing to award her prevailing party attorney fees pursuant to the MSA where the MSA provided for prevailing party attorney’s fees. The Fla. SC case explained that the party prevailing on the significant issues in the litigation should be considered the prevailing party for attorney’s fees. Moritz v. Hoyt Enters., Inc., 604 So. 2d 807, 810 (Fla. 1992). A trial court lacks discretion to decline to enforce a prevailing party attorney’s fees award once one party is deemed to have prevailed under the contract. Tierra Holdings Ltd. V. Mercantile Bank, 78 So. 3d 558, 563 (Fla. 1st DCA 2011). Affirmed the amount of additional alimony and reversed and remanded to award prejudgment interest and attorney fees.