Family law Case Law Updates March 13, 2013.

Family law
Case Law Updates
March 11, 2013
Forgive me. I’ve had an unusually busy week, so I am just getting to this project today.
MARITAL SETTLEMENT AGREEMENT-ENFOREMENT
In Palmer v. Palmer, 38 FLW D384 (Fla. 1st DCA filed February 18, 2013) The Husband appealed the trial courts enforcement of the parties’ marital settlement agreement wherein the court required the Husband to pay a stipulated sum certain for his failure to obtain refinancing on the marital home within the agreed upon time period. The Husband argued that the stipulated sum certain setting damages for delay in performance was void as a matter of law. The DCA, citing, Public Health Trust of Dade County v. Romart Const. Inc., 577 So. 2d 636 (Fla. 3d DCA 1991) found that a contract provision setting damages for delay in performance is not void as a matter of law, but only voidable. Further the court did not need to decide whether the provision at issue was a valid liquidated damage clause or whether it was an invalid penalty, because the agreement was merely voidable and is not subject to collateral challenge once it has been incorporated into a final judgment. See Wells v. Wells, 832 So.2d 266 (Fla. 4th DCA 2002) (declined to consider an argument raised for the first time in a contempt proceeding that a term in an MSA was unconscionable.) the Court held that because the MSA is merely voidable, the judgment incorporating the agreement is no longer subject to collateral challenge and therefore there was no error in the trial court’s enforcement.
PATERNITY-CHILD CUSTODY
In Ashby v. Murray, 38 FLW D375a (Fla. 5th DCA filed February 15, 2013). The procedural background in this case is complicated:
2/15/05 Trial court entered a FJ adjudicating the Father as the natural father, awarding Mother sole custody, Father supervised visitation, setting Father’s child support obligation. The Father was not present at the trial.
2/15/08-Three years later, the Father moved to set aside the FJ citing fraud upon the court.
11/5/10-Trial Court enters an Order setting aside the FJ and suspending child support until it could be recalculated. Mother was found in contempt. Father given temporary custody until 11/12/10 –the next court date.
11/12/10-parties ordered to return to court for review hearing and to set trial on issues in petition and counter petition. Mother did not appear because she was in custody. Father testifies that he had information from the child’s maternal uncle that the Mother had previously threatened suicide and to kill the child. Later that same day, the Father filed a verified motion to transfer temporary custody to him until the mother underwent a psychological evaluation. (recall the court has already granted him temporary custody on 11/5/10).
11/15/10-The court entered an Ex Parte Temporary Order awarding father temporary custody, Mother got supervised visitation. Father permitted to remove the child from Florida to Virginia. Mother hasn’t seen the child since he left on 11/15/10.
3/8/11-Mother filed a Motion to Dissolve the Ex Parte Temporary Order.
4/4/11 –Hearing on Mother’s Motion. Mother, Father and maternal grandmother testified. Mother denied any suicidal ideation and filed a psychological report supporting same. She was working and living in Orlando and testified to ability to care for child. Grandmother testified child was healthy, happy and cheerful with Mother and that she had no indication Mother wanted to commit suicide or harm the child. Father testified that child was in improved health and academics since living with him. He put into evidence the trial transcript from 11/5/10 hearing to support Mother’s erratic behavior. No written order was entered. The court denied Mother’s Motion.
9/20/11-Hearing held. Mother asked the court to determine whether Father proved his verified motion to transfer temporary custody to him until the mother underwent a psychological evaluation filed on 11/12/10.
9/22/11-Trial Court entered an Order denying Mother’s Motion without further comment.
This appeal followed. To prevail on a request for a temporary modification of custody, the moving party must meet the burden of proving that (1) a substantial change in the condition of one or both parties has occurred, and (2) the best interests of the child will be promoted by the change. Wilson v. Roseberry, 669 So. 2d 1152, 1154 (Fla. 5th DCA 1996) citing Antionetti v. Amato, 544 So. 2d 286, 287 (Fla. 1st DCA 1989). Before entering an emergency modification order, every reasonable effort should be made to ensure both parties have an opportunity to be heard. Wilson, 669 So. 2d at 1154. “If this is not possible . . . an opportunity to be heard should be provided as soon thereafter as possible." Id. A party may move to dissolve or modify the temporary injunction at any time. Fla. R. Civ. P. 1.610(d). The Father’s verified petition alleging Mother was a flight risk and had threatened to kill herself and the child arguably established an emergency sufficient to support the trial court’s issuance of the initial ex parte order. The DCA, however, found that the trial court erred when it refused to dissolve the ex-parte order after the April and September hearings finding that when a party challenges the entry of an ex parte order or injunction, the burden is on the party who obtained the order to show that the complaint and supporting affidavits are sufficient to support the injunction. Here the Father failed to meet his burden when the only evidence he presented was his own testimony and a transcript on the 11/5/10 hearing where the Mother was held in contempt. The DCA noted that because the child had been living for an extended time with the Father, the child would remain until the trial court could conduct a full and proper hearing on the issues of custody and visitation. Reversed and remanded with directions.
DISSOLUTION OF AMRRIAGE-ATTORNEY FEES
In Quintero v. Rodriguez, 38 FLW D373b (Fla. 5th DCA filed February 15, 2013) The Trial court’s denial of attorney fees to the Former Wife was an abuse of discretion where even with her imputed income, she had a negligible surplus each month and the Former Husband had a healthy surplus, which left him with the ability to pay her trial counsel’s fees.