FAMILY LAW-CASE LAW UPDATES OPINIONS FILED JUNE 5, 2013-JUNE 10, 2013

FAMILY LAW-CASE LAW UPDATES
OPINIONS FILED JUNE 5, 2013-JUNE 10, 2013
ATTORNEYS –DISQUALIFICTION-PRIOR REPRESENTATION
In McCormack v. Russell, 38 FLW D1224a (Fla. 4^th DCA) opinion filed June 5, 2013, The DCA denied the Petition’s writ of Certiorari on the merits. The Petitioner sought an interlocutory review of the trial court’s order denying her motion to disqualify respondent’s law firm due to prior representation of petitioner in another matter by a recently-hired attorney of that firm. While cert. review is appropriate to consider orders denying a motion to disqualify counsel due to alleged conflict of interest, the trial court’s order was supported by competent, substantial evidence such that the petitioner could not show that the order departed from the essential requirements of law, since the attorney adamantly denied receiving any confidences from the petitioner, who testified to the contrary at an evidentiary hearing below. Petition denied.

DISSOLUTION OF MARRIAGE-CHILD CUSTODY
In Milton v. Milton, 38 FLW D1246 (Fla. 1^st DCA) opinion filed June 5, 2013, the Husband (H) sought review of a trial court order which did not hold the Wife (W) in civil contempt or Order the return of the couple’s minor child to the State of Florida. He argued three grounds, one had merit-that the trial court erred by permitting the W to keep the minor child in New York.
There is nothing that requires a trial court to hold a person in contempt; the court’s determination is reviewed for an abuse of discretion. Given the record before it, the DCA did not find an abuse of discretion in not holding the W in contempt.
Second, the H sought to end the parties’ time-sharing agreement by affirmatively seeking dissolution of the 2008 temporary injunction which contained it-this was the only document that contained any agreement between the parties as to timesharing. Thus, when the trial court dissolved it, the slate was clean and the trial court was bound to make a best interest of the child determination and take evidence regarding a new time sharing arrangement. Delivorias v. Delivorias, 80 So. 3d 356 (Fla. 1^st DCA 2011). The H’s argument that the trial court erred by modifying an existing time-sharing agreement without proper notice was without merit. Once dissolved, the court did not modify an existing agreement, it was left to create a new one. Further the H invited the trial court to dissolve the injunction and put himself in the predicament of being without a valid time-sharing arrangement.
The H’s last issue did have merit. The DCA reviews relocation determinations for an abuse of discretion; however, whether the trial court properly applied the relocation statute is a matter of law reviewed de novo. Raulerson v. Wright, 60 So. 3d 487, 489 (Fla. 1^st DCA 2011). The H relying on Raulerson and sec. 61.13001 Fla. Stat asserts that because the W did not comply with sec. 61.13001, the trial court erred in permitting the child’s relocation, even if temporary. The DCA agreed See Raulerson, 60 So. 3d at 490.
That said, the parties were not prepared to have a full hearing on the best interests of the child-a necessary consideration for relocation. Sec. 61.13001(7) Fla. Stat. The H is entitled to some make up time, but that would be at the trial court’s discretion. Accordingly, the case was remanded to accomplish what the trial court had already begun. After taking evidence of the best interests of the child, the trial court may properly order relief for the W’s unauthorized relocation and on the H’s specific request for make-up time sharing both of which are necessary before creating a final time-sharing agreement and ultimate dissolution of the parties’ marriage. The trial court was encouraged to promptly set the case for a status conference and determine these matters as expeditiously as possible.
CHILD SUPPORT-ADMINISTRATIVE SUPPORT MODIFICATION ORDER
In Hoover v. Dept. of Revenue, 38 FLW D1270b (Fla. 1^st DCA) opinion filed June 10, 2013, Hoover appealed the Administrative Support Modification Order obligating him to pay $190.00 per month in child support. Because the Administrative Law Judge (ALJ) hearing the petition failed to comply with the statutory requirements, the Order was reversed and remanded.
The father argued on appeal the ALJ erred by failing to include dental insurance costs in the support calculation. DOR conceded error. On remand the calculation should include the cost of dental insurance and credit to appellant for prepaying the premium. Next, the father challenges the ALJ’s failure to consider evidence of child care costs. Again, Appellee conceded error. On remand the ALJ should determine the father’s monthly cost of child care and include the expense and a credit for prepayment in the calculation of support noting that section 61.30(11)(b)1 requires that the full cost of child care be taken into account only after the basic obligation has been calculated. Lastly, the Appellant argued error in the ALJ’s failure to award the modification retroactively. The Appellee again conceded. The Order was affirmed in part, reversed in part and remanded to the Division of Administrative Hearings for further proceedings consistent with this opinion.