Family Law Case Law Updates. Opinions filed May 10, 2013-June 3, 2013

CHILD SUPPORT-RETROACTIVE-ADMINISTRATIVE SUPPORT ORDER
In Dept. of Revenue v. Mash, 38 FLW D1046a (Fla. 1st DCA) opinion filed May 10, 2013, DOR appealed the final agency action setting the child support obligation of the father in this administrative support proceeding under sec. 409.2563 Fla. Stat. This case was previously on appeal. On remand the administrative law judge established the father’s current child support obligation in accordance with the child support guidelines in Sec. 61.30 Fla. Stat. and no error in this calculation has been shown by DOR.
Sec. 61.30(17) Fla. Stat., requires the court to consider “actual payments made by a parent to the other parent or the child or third parties for the benefit of the child throughout the proposed retroactive period” in determining a retroactive child support obligation. It is possible that gifts purchased for the benefit of the child might qualify as “actual payments . .. for the benefit of the child” as contemplated by sec. 61.30(17). However, there is no provision in the statute allowing credit for “in-kind contribution of child rearing responsibilities” to be applied to retroactive child support obligation as ordered in this case. The concept of crediting one parent’s retroactive child support obligation with a monetary value for days and nights spent with the child in proportion indicating that the child “visited” that parent is not consistent with the current public policy of this state, described in Sec. 61.32 (2)© 1 & 2. Fla. Stat. Chapter 61 purposely does not relegate any parent to visitor status and monetary credit for time spent on child-rearing prior to a court ordered or court approved parenting plan should not be presumed to be an extraordinary expenditure by that parent. Therefore the portion of the final Administrative support order after remand awarding Appellee $352.00 credit toward his retroactive child support obligation was reversed.
DISSOLUTION OF MARRIAGE-ALIMONY
In Kingsbury v. Kingsbury, 38 FLW D1055b (Fla. 1st DCA) opinion filed May 14, 2013, the Former Husband (hereafter designated as FH) appealed the Final Judgment raising issues related to the award of permanent periodic alimony and equitable distribution of assets. Only the award of alimony was found to have merit. The trial court based its award of permanent periodic alimony of the FH’s gross income. Finding merit in the argument that the trial court erred by failing to base the award of alimony on his net income. See Vanzant v. Vanzant, 82 So. 3d 991, 993 (Fla. 1st DCA 2011). As the gross income was the only mention in the final judgment of the FH’s income, and thus his ability to pay alimony, this was error. Accordingly, the award was reversed in part and remanded.
PATERNITY-SPERM DONORS
In A.A.B. v. B.O.C. 38 FLW D1059a (Fla. 2d DCA) opinion filed May 15, 2013, the biological mother of C.D.B. appealed from a final judgment of paternity which granted B.O.C., the biological father, parental rights with respect to the child, who was conceived through artificial insemination. She also appealed from the order establishing a parenting plan and child support. Under Section 742.14 Fla. Stat. (2002) B.O.C. is a sperm donor and therefore has no parental rights with respect to C.D.B. I could stop here, but the facts are just too good to miss.
The appellant, A.A.B. and her partner S.C. lived together in a committed same sex relationship. They asked S.C.’s brother, appellee B.O.C. to donate sperm to be used to impregnate A.A.B. B.O.C. agreed, and after three attempts at “do-it-yourself” artificial insemination, the parties were successful at conceiving a child. A.A.B. and S.C. assumed sole responsibility for all prenatal decisions and expenses. When C.D.B. was born in 2002, B.O.C. lived in another state and did not assume a parental role with the child. Approximately three years later, A.A.B. and S.C. ended their relationship and shared a rotating custody of the child. The relationship deteriorated and A.A.B. refused to allow S.C. to have any further contact with the child.
B.O.C. then filed suit to establish paternity and visitation. A.A.B. disputed that B.O.C. had any parental rights because he had agreed to be a sperm donor. The trial court held a hearing and found that Section 742.14 did not apply to the “do-it-yourself artificial insemination, rather than a clinical procedure. The Court declined to recognize the oral agreement between the parties that B.O.C. was to be merely a sperm donor. A.A.B. argues that the trial court erred in failing to find that B.O.C. was a sperm donor within the meaning of Section 742.14.
The issue was whether Section 742.14 applied to deny parental rights to a sperm donor whose identity is known to the biological mother and where insemination occurs outside of a laboratory setting, but not in the “old-fashioned way.”
A court’s interpretation of a statute “is a question of law subject to novo review.” Daniels v. Fla. Dept. of Health, 898 So. 2d 61, 64 (Fla. 2005). A plain reading of Section 742.14 reveals that the donor of any sperm shall relinquish all parental rights and obligations with respect to resulting children. The only exceptions in the statute are when (1) “a commissioning couple” employs “assisted reproductive technology” *Per the foot note “a commissioning couple” means the intended mother and father of a child who will be conceived by means of assisted reproductive technology using the eggs or sperm of at least one of the intended parents. Or (2) a father has executed a preplanned adoption agreement under the adoption statute.
This court held in Lamaritata v. Lucas, 823 So. 2d 316 (Fla. 2d DCA 2002), upheld a written agreement that a sperm donor would relinquish any parental rights or obligations to a child conceived by artificial insemination. The parties entered into a written contract before the insemination, but after the birth the donor filed an action to establish paternity. This court stated: A person who provides sperm for a woman to conceive a child by artificial insemination is not a parent. Both the contract between the parties and the Florida Statute controlling these arrangements provide that there are no parental rights or responsibilities resulting to the donor of sperm. If the sperm donor has no parental rights, the sperm donor is a nonparent, a statutory stranger to the children. Id. at 319.
The donor asserted that he retained parental rights because he and the mother were a “commissioning couple,” and thus the exception to the sperm donor statute applied. This court rejected that argument stating: There are no facts to show Mr. Lucas and Ms. Lamaritata have any type of relationship that would fall under the rubric of “couple.” Further, they did not commission or contract to jointly raise the child as mother and father. Rather, they jined forces solely for the purpose of artificial insemination, an intent clearly set forth in the parties’ contract. Id.
The facts in Lamaritata were found similar to this case. A.A.B. and B.O.C’s sister, S.C. intended to raise the child together. Although B.O.C. occasionally visited the child, he did not assert any parental rights over C.D.B. until his sister’s relationship with the child was jeopardized. As the trial court in this case correctly found, A.A.B and B.O.C. were not a “commissioning couple.” See Sec. 742.13(2). A.A.B. testified that she was in a committed relationship with S.C. and had no interest in a relationship with a male. The trial court specifically found in the Final Judgment or Paternity that it was the intent of the parties “that [B.O.C.] would provide the donor sperm with which A.A. B. became pregnant and would be raised by A.A.B. and S.C. as the child’s parents.
The do-it-yourself” manner in which the artificial insemination took place did not alter the fact that B.O.C. was a sperm donor under section 742.14. The statute does not require that the procedure take place in a clinical setting. Because B.O.C. was a sperm donor he relinquished his parental rights and obligations to C.D.B.. The final Judgment of paternity was reversed and the orders establishing visitation and child support were reversed.
ATTORNEY FEES-CHARGING LIEN
In Greenspoon Marder, PA v. Moscoso, 38FLW D1075 (Fla 3d DCA) opinion filed May 15, 2013. Where initial retainer agreement provided for hourly fees, but after the client fell behind in paying the hourly fees, the attorney and client entered into an amended retainer agreement providing for a contingency fee for fees incurred after the execution of the amended retainer agreement, but for all fees billed but unpaid prior to the amended agreement to be payable upon conclusion of the matter, client remained responsible for payment of the hourly fees incurred prior to the amended agreement after the withdrawal of the attorney. The trial court erred in striking the attorney’s charging lien where lien was seeking payment for the unpaid hourly fees.
DISSOLUTION OF MARRIAGE-SETTLEMENT AGREEMENT
In Rey v. Rey, 38 FLW D1107a (Fla. 3d DCA) opinion filed May 22, 2013, the wife appealed a Final judgment of Dissolution of Marriage entered pursuant to the Husband’s Motion for summary judgment, upholding the validity of a marital settlement agreement entered into between the parties. After protracted negotiations with accountants and attorneys the parties executed an agreement and the Husband filed a Motion for the trial court to adopt and ratify the agreement as contemplated by paragraph 20 of the marital settlement agreement. At the hearing, the wife testified that she understood the agreement, entered into it freely and voluntarily, reviewed it with her counsel, and accepted its terms. The court adopted and ratified the agreement. The Dissolution action was then dismissed for lack of prosecution. Shortly thereafter, the Husband filed a second petition for dissolution. The Wife answered raising several affirmative defenses and demanding additional, extensive discovery of financial documents form 29 corporations. The Husband filed objections and argued that before the production of any documents, the wife be deposed. The Wife’s deposition reflected that she was questioned regarding her ability to get more documents prior to signing the agreement and her choice not to do so; her accountant’s advice not to sign the agreement until he obtained the additional financial disclosure from the husband; and the wife instructing her accountant not to pursue any additional financial disclosures.
The Husband filed a motion for summary judgment arguing that as a matter of law the agreement was valid and should control the dissolution action. Attached to the motion was the transcript of the hearing where the agreement was ratified by the trial court. The trial court granted his Motion.
This appeal followed. The Wife relies entirely on Castro v. Castro, 508 So. 2d 330 (Fla. 1987) to argue that the trial court erred in entering summary judgment. Under Castro there are two alternative grounds by which either spouse may challenge a postnuptial agreement and have it vacated or modified. Id. at 333. 1) by establishing it was reached under fraud, deceit, duress, coercion, misrepresentation, or overreaching. 2) a challenging spouse must establish that the agreement makes unfair or unreasonable provisions given the circumstances of the parties. Del Vecchio, 143 So. 2d at 20.
The Wife argues there was evidence of fraud, deceit, duress, coercion, misrepresentation, or overreaching; and that there was evidence that the agreement made unfair and unreasonable provisions for the Wife, leaving her with only one fourth of the marital assets and no alimony after a twenty-eight year marriage. Castro dictates that once she demonstrated that the agreement was unreasonable, the burden shifted to the Husband to rebut the presumption that he concealed his finances or that the wife lacked knowledge of them. She argued at the very least the trial court should not have granted summary judgment without allowing her the additional financial discovery she sought.
The Wife’s discovery argument was dispensed with citing Carter v. Carter, 3 So. 3d 397 (Fla. 4th DCA 2009) which established that when a party moves to set aside a MSA entered into during the course of litigation on the basis of fraud or misrepresentation, but in so doing pleads these grounds conclusorily and without specificity, it would be a departure from the essential requirements of law for the trial court to allow discovery prior to ruling on the validity of the MSA. Unless and until the trial invalidates the parties’ MSA, the Husband’s private financial information should remain private. Id. A 397-98
In this case as in Carter, the wife attempted to set aside an MSA that was entered into during the course of litigations and pleaded conclusorily without specificity. Under these circumstances, the trial court was duty bound to determine the validity of the MSA before granting the wife’s discovery requests. The Wife’s reliance on Castro was misplaced as Castro concerned a postnuptial agreement entered into outside of litigation. The rationale is that parties not in the midst of litigation hold a position of mutual trust and confidence; and therefore their agreement can be more carefully scrutinized.
Florida case law is clear that Castro does not control under the facts of this case. See Petracca, 706 So. 2d at 911-13. The distinction recognized in Petracca holds true even when the agreement entered into during litigation contemplates reconciliation and the underlying dissolution action is subsequently dismissed. See Kuchera, 98 So. 2d at 777-80.
To set aside a martial settlement agreement during the course of litigation, “the challenging spouse is . . . .limited to showing fraud, misrepresentation in the discovery or cooecion. The wife here failed. First, she failed to plead the affirmative defense of fraud with even a semblance of specificity; and therefore waived fraud as a defense.
Lastly, with respect to the third ground the wife claims the marital settlement agreement as the product of duress because the Husband slashed her tires three times at unspecified points over the course of their 28 year marriage, slept with a gun under his mattress, and at some pint called her and stated, “[I]f you don’t sign the agreement I will take care of you.” However, she failed to establish any nexus between the allegations and her singing the agreement. Duress “is a condition of mind produced by an improper external pressure or influence that practically destroys the free agency of a party and causes him or her to do an act or make a contract not of his own volition.” Francavilla v. Francavilla, 969 So. 2d 522, 5240525 (Fla. 4th DCA 2007). Two factors must be proven to establish duress. The act sought to be set aside was effected by involuntary and thus not an exercise of free choice or will; and that this condition of mind was caused by some improper or coercive conduct of the other party. Id. At 525.
The Wife established the opposite in this case. During her deposition testimony, the wife explained the reason she stated I open court that she was entering the agreement freely and voluntarily was that she was not aware of any psychological stress resulting from the above mentioned allegations at the time she executed the agreement, or during her colloquy with the trail court, and that she actually believed she was entering into the agreement freely and voluntarily when she executed the agreement. It follows that if the wife was unaware of the impact of the Husband’s alleged coercive actions, then their resulting pressures could not have destroyed the free agency of the wife and caused her to make a contract not of her own volition or free will. As a result the wife has failed to establish duress. For these reasons, the DCA affirmed the trial court’s entry of Summary judgment in favor of the Husband.
DISSOLUTION OF MARRIAGE-ALIMONY-MODIFICATION
In Lilly v. Lilly, 38 FLW D1158a (Fla.5th DCA) opinion filed May 24, 2013, the former Husband (FH) appeals a modification of rehabilitative alimony to permanent periodic alimony arguing the Former Wife (FW) failed to meet her burden of providing evidence that she made reasonable efforts to comply with the rehabilitative plan. Despite more than sufficient funds allotted in the plan for vocational rehabilitation, the FW sought services for free through the Department of Vocational Rehab., but when a counselor there told her that her OCD was not sufficiently under control to qualify her for their services, she sought no other rehabilitative services. She applied for 9 jobs in a one year period. The court did not find this reasonable and questioned if she was diligently attempting to obtain employment. The FW also sought treatment from a doctor just a few months before the rehabilitative time period was to expire. She had not seen him for approximately 8 years. What the court found quite telling about the Wife’s return to this doctor after an 8 year hiatus is that she informed the doctor that she would need his testimony at a later date. Both the timing of and the reasons for the return visit are dubious and unsupportive of a conclusion that she was diligent in seeking assistance. It was the FW’s burden to show she made reasonable and diligent efforts to comply with the rehabilitative plan. “The requirements of reasonableness and diligence in this context require more than simply erecting a façade to give the appearance of compliance. “ Because the wife failed to meet her burden, the judgment converting the rehabilitative alimony award to permanent alimony was reversed.
DISSOLUTION OF MARRIAGE-JUDGES-DISQUALIFICATION
In Raphael v. Raphael, 38 FLW D1167b (Fla. 5th DCA) opinion filed May 24, 2013, the Wife sought a writ of prohibition after the Judge denied her motion to disqualify himself from further proceedings in her dissolution of marriage case. The Wife’s petition set forth an obvious bias by the Judge against her attorney dating back to before the Judge took the bench. This Judge had previously granted two motions to disqualify himself in unrelated cases where her attorney was the attorney of record. The Judge found the motion untimely. Without giving us any dates, the DCA found the motion was timely. Finding that the petition clearly set out a hostility and finding same is grounds for disqualification. Also finding that there were two prior orders disqualifying himself in two other cases where this attorney was the attorney of record, he should have disqualified himself. Petition granted.
DISSOLUTION OF MARRIAGE-ATTORNEY FEES AND COSTS-COMPUTATION OF LENGTH OF TIME
In Ingram v. Ingram, 38 FLWD1208a (Fla. 1st DCA) opinion filed June 3, 2013, The Former Husband raised three issues on appeal from the trial court’s denial of his motion for relief from judgment and for rehearing filed in response to the Trial court’s judgment granting the Former Wife attorney fees and costs. The DCA found one issue had merit.
The trial court granted the FW’s motion for rehearing to further consider the issue of her attorney fees. It granted her counsel 10 days from the date of the rehearing to file documentation as to his hourly rate, hours expended and an affidavit from an expert as to the reasonableness of his fees and costs. After the FW’s counsel provided same, the FH’s counsel was allotted 10 days to respond. The trial court issued its order before the appellant’s time to respond expired.
Under Florida law, when computing a length of time, measured in days, specified by court order, the day triggering the term must be excluded and every day of the term should be counted, including Saturdays, Sundays, legal holidays, and the last day of the ter. Rule 2.514(a0(1)Fla. R. Jud. Admin. (2012) Five days are added to a period calculated under this rule when a party must act after being served and service is executed by mail or email. Rule 2.514(b) Fla. R. Jud. Admin. Using this calculation the FH’s counsel had until October 10th. The Court signed the Order on October 4th. Accordingly, the judgment was reversed and remanded.