Family Law Case Law Updates

FAMILY LAW CASE LAW UPDATES
February 21, 2013
Following a few weeks of slow activity for Family law cases in the DCA’s, this week things perked up. In fact, the cases were so “juicy”, I could hardly wait to put my fingers to the keyboard to summarize them.
PATERNITY/CHILD SUPPORT/ PARENTING PLAN
In the case of Neuman v. Harper, 38 FLW D311a, The Fifth DCA Affirmed the trial court’s award to the father of a majority time sharing plan in a foreign state. The trail court made a determination in this very controverted case and their opinion on credibility was NOT flattering to the Mother. The evidence adduced at trial included that the parties were never married. The Mother and Father split up and the Father allowed the Mother to remain in his home while he worked as a first responder in the aftermath of Hurricane Katrina. While the Father was away, the Mother changed the locks on his home, effectively excluding him from his own residence. She filed an ex parte application for a domestic violence injunction which was dismissed, but not until the Father missed the birth of the parties’ child. Worse, when ordered to have DNA testing done on the baby, she took her sister’s baby for testing rather than the parties (they were of similar ages). The father becoming suspicious after viewing pictures of the baby on Facebook, filed a Motion to have the child retested. The Mother then took two babies to the testing facility with their faces obscured by hoodies. The father went to the center to assure the correct baby was tested. After some arguments, the facility tested the correct child and he was found to be the biological father. Mom testified at trail that she knew he was the father from the date of birth.
Unfortunately, the baby had respiratory problems that necessitated the use of a breathing machine, which she refused to give to the Father when he exercised his parenting time. The father hired a private investigator who obtained video surveillance of the Mother smoking in the car with the baby wherein the windows were rolled up. She also lived in a small trailer with 5 dogs and a cat. The baby and his older half-brother were observed wandering alone in a large store looking for their Mother. The DCA found that the trial court crafted the parenting plan in the best interest of the child by going through the factors set forth in Se. 61.13(3). The majority of the factors weighed in favor of the father and those findings were supported by competent substantial evidence.
ALIMONY
Our Second DCA in Doganiero v. Doganiero, 38 FLW D284b affirmed in part, reversed in part and remanded findings of imputed income and alimony. In this case the parties were married for 16 years and ten months. The Wife was primarily a home maker. They had two sons. The husband worked with his brother in a software company that he sold netting over 3 million dollars. The Husband then invested in a PODS franchise (portable storage units). The couple then built a 1.5 million dollar home and commenced a lavish lifestyle. The Husband sold his shares in the PODS in 2007 and netted over 5 million dollars. (do I hear fingers Googling this business to see how we can get in on this??) The Husband also invested heavily in real estate. In 2008 the real estate market collapsed. The Wife filed for divorce in March 2009. The Husband filed several financial affidavits that differed widely. The trial court imputed income to him in the amount of $52K per year based on the Husband last job of short duration with this amount as an annual salary. He had lost the job before trial. The parties stipulated to imputing income to the Wife in the amount of $24K per year. There was no marital debt at the time of trial. The marital home was owned without a mortgage, they had two 2 cars and some bank accounts and their personal belongings. The husband had divested most of the couple’s assets to pay off all the marital debts that arose from his real estate investments such that they were debt free at the time of trial. Both parties’ experts testified that this was reasonable and done in arm’s length transactions. However, this left the Wife in a bad position. To equalize, the trial court ordered the marital home sold with proceeds going 2/3 to Wife and 1/3 to Husband. The trial court awarded the Wife $100.00 per month in durational alimony. The wife appeals arguing an abuse of discretion in awarding only nominal durational alimony for 16 years. The trial court made no specific factual findings for their alimony award in the final Judgment.
The DCA noted that the trial court must first make a specific factual determination of actual need for alimony and if so, then shall consider all relevant factors in Sec 61.08(2).. The DCA found that an award of $100.00 per month where the payor “is recognized to have imputed income and future prospects-is an award that no reasonable court would impose” . .and therefore was an abuse of discretion. This award was reversed.
The DCA also questioned whether durational, rather than permanent, alimony was appropriate stating, “Durational alimony is to be awarded by statute, where “”permanent periodic alimony is inappropriate.”” See 61.08(7). Where almost all of the marital income came from the Husband’s investments, this issue was remanded with directions to determine which type of alimony was appropriate and to award an amount that was legally sufficient, setting forth its rationale for the amount of the award.
DISSOLUTION OF MARRIAGE/CHILD CUSTODY/HEARSAY
In Davis v. Davis, 38 FLW D329a, The Wife appealed the trial court’s Final Judgment awarding majority timesharing of the minor child to the Husband, awarding the Husband a half interest in her condominium, which she inherited during the marriage arguing same was a non-marital asset, in admitting DCF reports without calling the authors of the reports to testify, and in denying her request for an award of attorney fees. The DCA affirmed in part, reversed in part and remanded.
The Husband was in the military and the family moved often. DCF investigated 9 times in a three year period while the family lived in Florida. The trial court admitted 30 pages of DCF investigative summaries. The Wife timely objected on hearsay grounds. The DCA agreed that admitting the reports was error without calling the authors to testify, or otherwise establishing a predicate for their admission. However, finding that admission was harmless error as it did not contribute to the outcome and critical elements were testified to by other witnesses.
The DCA found the award of the interest in the Wife’s condominium was reversible error where there was no dispute that the property had been inherited during the marriage, had been titled in her Mother’s name with the Wife having a right of survivorship. No marital funds had been used to purchase the property. The husband testified that he used marital funds to pay the mortgage and made repairs on the property. However, the trial court failed to make any factual findings of enhanced value. The Husband also failed to produce any evidence supporting his testimony that he enhanced the value with marital funds.
With regard to attorney fees, the DCA noted the Wife had 5 attorneys during the course of litigation. Her request to be awarded almost 25K was the result of three months worth of legal services performed by the fifth attorney. The trial court based its denial on the Wife’s ability to draw from her non-marital bank account and on speculation that the parties were on equal footing because the Husband was going to retire a few months after trial. The DCA found that the trial court should have evaluated the request for attorney fees on the parties’ financial resources at the time of final judgment and remanded with directions to make findings based on the applicable factors and a finding on the reasonableness of the fees considering the Wife’s repeated change in counsel.
CHILD CUSTODY/PATERNITY
In Weeld v. Weeld, 38 FLW D313a, Our Second DCA reversed and remanded the trial court’s summary judgment “de-legitimizing” the Wife’s child and denying the Husband’s request for a parenting plan and determination of child support.
The trial court’s ruling failed to consider whether there was a clear and compelling reason, based on the child’s best interests, to overcome a presumption of legitimacy and remove the Husband as the legal father .The Husband appealed only the earlier order granting summary judgment on the issue of de-legitimizing the child. When the couple met, the Wife was already pregnant. There was no dispute that the Husband was not the biological father. However, he was present at the child’s birth, he was named as the father on the birth certificate, both parties signed a voluntary acknowledgement of Paternity pursuant to Sec. 382.013(2)(c) Fla. Sta. naming the Husband as the father. The couple later married when the child was 16 months old. The Husband had been held out as the child’s father. The Husband is the only father the child has ever known. The biological father lived in Texas and had no known contact and had done nothing to support the child. The Wife filed a petition pleading that there were no children born of the marriage. The Husband filed an answer and a counter-petition and admitted he was not the biological father, but the legal father and the child had the right to maintain that legal status. The DCA agreed with the father based on the following:
Sec. 382.013(2)(c), states that if the Mother is not married at the time of birth the father cannot be named on the birth certificate unless an affidavit is executed by both parties. The facility has to notify the father of the responsibilities that arise from acknowledgment of paternity and same is executed under penalty of perjury. If this is done, it creates a rebuttable presumption of paternity and is subject to be rescinded within 60 days of signing. Under Sec. 742.10(1)(4) after the 60 day period has passed the acknowledgment shall constitute an establishment of paternity and may be challenged in court only on the basis of fraud, duress or material mistake of fact, with the burden of proof on the challenger. (5) provides that no judicial or administrative proceeding is required to ratify an unchallenged acknowledgement establishing legal paternity regardless of biology. There is no requirement that the “father” be the biological father and the Wife’s argument that the Husband’s acknowledgement amounted to fraud where he knew he was not the biological father when he signed it are without merit. Next, the Wife signed the acknowledgement also with full knowledge that the Husband was not the biological father and thus was complicit in any alleged fraud and therefore estopped from asserting a claim of fraud against her husband. Lastly, the Wife is equitably estopped from denying the Husband’s paternity at this point in time as the father’s legal paternity may be ruled unassailable when the legal father has established a mutually rewarding relationship with the child which he desires to continue and where he is supporting the child to the best of his ability and maintaining the relationship is in the child’s best interests. Citing Privette v. Privette, 617 So. 2d at 308 n.3, Holding that the trial court erred in granting summary judgment, the DCA could not rule but remanded with directions for the trial court to apply the correct legal standard and advising that pursuant to Privette, a guardian ad litem must be appointed to represent the child’s interests in making this determination. Id.