Family Law Case Law updates Opinions filed April 24-26, 2013

Family law case law updates
Opinions filed April 24-26, 2013
DEPENDENT CHILDREN-PERMANENT GUARDIANSHIP
In S.G. Mother of A.P. and L.P., children v. DCF, 38 FLW D939a (Fla. 5th DCA, opinion filed April 26, 2013) the Mother appealed the trial court’s order placing her two children in separate permanent guardianships and terminating protective supervision. Both DCF and the Guardian Ad Litem submitted concessions of error that required reversal. Both requested the DCA to remand the case for further proceedings to protect the Mother’s due process rights and determine the best interests of the children based on the current circumstances. Based on the concessions of error and review of the record, the Order was reversed and remanded for further proceedings.
PATERNITY-CHILD SUPPORT
In DOR o/b/o T.L.S. v. S.J.W., 38 FLW D947b (Fla. 2d DCA, opinion filed April 26, 2013), DOR challenged the trial court’s order establishing paternity, parental timesharing, and child support arguing that the trial court erred in calculating S.J.W.’s (the father’s) child support obligation. Specifically the trial court deducted $541.67 from his gross income based upon another court-ordered child support obligation. However, the evidence established the father was not actually paying that obligation and therefore the DCA reversed. Normally this would have been reviewed for an abuse of discretion, but the right to claim a statutory deduction to a spouse’s gross income under the child support guideline is a mixed question of law and fact. The determination of the appropriate legal standard to be applied in a case is decided as a matter of law. Here the question presented by DOR is a question of law and so was reviewed de novo. See Henderson v. Henderson, 905 So. 2d, 901, 902 (Fla. 2d DCA 2005). No transcript was available, but a statement of the facts was prepared and submitted in compliance with Florida Rule App. P. 9.200 (b)(4).
The father testified at hearing that his prior child support obligation was current leading the court to apply the deduction form his gross income for same. In its motion for rehearing the DOR alleged a review of payment records reveals the father was in arrears $81,720. The first wife first testified that he had paid her directly and upon cross examination stated he did work around the house for her, but she was willing to reduce the arrearage to zero. The court did not order the father to pay arrearages of the delinquent amount. It appears the former wife did whatever was necessary to reflect a zero balance in her case; and based upon this the trial court allowed the deduction for the support amount. The issue was whether he really paid the support.
The intent and meaning of Sec. 61.30(3)(f) requires no explanation. See Henderson, 905 So. 2d at 904. The phrase “actually paid” is not ambiguous and has only one reasonable interpretation. Thus, the DCA gave it the statute “it’s plain and obvious meaning.” Because the record conclusively established that the father had not actually paid his court-ordered support at the time of the rehearing, the trial court erred in deducting the amount from his gross income to determine his child support obligation. Reversed and remanded for correct calculation of the father’s child support obligation.
DISSOLUTION OF MARRIAGE-ALIMONY-LUMP SUM
In Taylor v. Taylor, 38 FLW D891a (Fla. 4th DCA, opinion filed April 24, 2013) the Former Husband filed an appeal challenging the award of the marital home as lump-sum alimony. The Former Wife filed a dissolution action after 22 years of marriage on May 8, 2008. There was a final hearing, but only the Wife attended. A final Judgment was entered on October 16, 2008. In February 28, 2009 the Former wife remarried. In 2011, this DCA reversed the final judgment because the husband never received notice of the final hearing. On remand the former husband appeared pro ce.
The parties’ only significant asset was their marital home worth $380,000. The trial court awarded the wife’s the husband’s one half interest as lump-sum alimony based on the finding that the husband had demonstrated hostility against providing any spousal support. Reasoning that the wife was entitled to permanent alimony, the court observed that “to award the Wife any kind of monthly support will only encourage the husband to continue to defeat the Wife’s right to support by in some way concealing or hiding his true earnings.”
Finding that the original justification for the award of the lump-sum alimony had evaporated by the time of the 2011 hearing, the DCA found that the trial court could not ignore the wife’s remarriage in 2009 making a nunc pro tunc order on all aspects of the dissolution inappropriate.
However, further complicating was the fact that Section 61.08(1) Fla. Stat. authorizes the payment of permanent alimony in lump-sum it is not actually another type of alimony, but a means to accomplish the ends of rehabilitative or permanent alimony. Borchard v. Borchard, 730 So.2d 748, 751 (Fla. 2d DCA 1999). It can be comprised of real property and it establishes a fixed monetary obligation that vests immediately, is non-modifiable and does not terminate when the payee remarries or when the payor dies. See Pipitone v. Pipitone, 23 So. 3d 131, 137 (Fla. 2d DCA 2009) (citing Borchard, 730 So. 2d at 751). As this DCA has explained. Two predicates have evolved for the award of lump-sum alimony. 1) finding of special necessity. If support is needed, there must exist unusual circumstances which would require a non-modifiable award of support and 2) the findings must be above and beyond the justification for an award of permanent alimony. Rosario v. Rosario, 945 So. 2d 629, 632 (Fla. 4th DCA 2006).
The DCA found that the trial court was justified in finding that based upon the husband’s threats and history of non-payment, that “unusual circumstances” existed justifying lump-sum over periodic alimony payments, but there was no “special necessity” because the wife’s remarriage terminated her entitlement to permanent alimony on 2/28/2009. Therefore, the award of lump-sum alimony was reversed and remanded for the trial court to equitably divide the marital home according to section 61.075 Fla. Stat (2008).