Family Law Case Updates 2.5.13

Family Law Case Law Updates
February 5, 2013
ADVERTISING RULES
We have a Rules Amendment to our advertising rules, which deletes all rules in existing Subchapter 4-7 of the rules regulating The Florida Bar, including the amendments adopted in In Re: Amendments to the Rules Regulating The Florida Bar-Rule 4-7.6 Computer Accessed Communication, 24 So. 3d 172 (Fla. 2009). New advertising rules adopted are attached to the opinion in an appendix. The entire appendix can be viewed at http://www.floridabar.org.
ALIMONY
In McClain v. McClain, 38 FLW D167a the Third DCA vacated the portion of the final judgment awarding permanent periodic alimony to the Wife. The Husband appealed the award on the grounds that she never pled for alimony. The DCA Agreed. Specifically, the Husband filed the initial Petition, which did not raise the issue of alimony. The Wife, who was represented by counsel, filed an Answer, which did not request spousal support or alimony. The Wife then filed a Motion to amend her answer to include counterclaims for alimony and for damages resulting from an alleged tort?? The Wife apparently never set her Motion to Amend for hearing and never obtained an Order. The case was set for trial. The Wife did not list alimony as an issue to be tried. The Judge advised at trial that he intended to award alimony over the Husband’s objections that same was never pled and there was no counterclaim for alimony. Nevertheless, the court awarded permanent periodic alimony in the amount of $1,000.00 per month to the Wife. The DCA agreed with the Husband stating, the “mere filing of a Motion to Amend the Pleadings does not constitute an actual amendment to the pleadings.” Accordingly that portion of the Order was vacated.
MARITAL SETTLEMENT AGREEMENT-AMBIGUITY
In Toussaint v. Toussaint, 38 FLW D194a, the First DCA reversed and remanded with direction to admit parole evidence to resolve the ambiguity in the MSA finding that where a General Magistrate and the trial Judge read the same MSA and came to opposite, but reasonable conclusions, as to whether the provision proving the Wife’s entitlement to 50% of the Husband’s military retirement would be calculated based on his service during the marriage or his service both during and after the marriage, the court should have admitted parole evidence to resolve the ambiguity and it was error to rule the agreement was unambiguous.
EQUITABLE DISTRIBUTION-ANTINUPTIAL AGREEMENT-ATTORNEY FEES
In Heiny v. Heiny, 38FLW D200b, Our Second DCA, in a very long opinion but instruction opinion, affirmed in part, reversed in part and remanded. The court consolidated both party’s appeals of the Final judgment and the Order awarding attorney fees. Both parties argued that the trial court made errors in the equitable distribution plan. The parties were married in 1996 and had two children born during their marriage. The Husband was a pool contractor, and the wife an accountant. During the marriage they both worked together in the Husband’s pool contracting business.
The first challenge is to the distribution of the Wife’s premarital home. Before, the parties married, they signed an antenuptial agreement with the general purpose and intent to protect each party’s premarital assets as separate property. The agreement had a specific provision regarding the Wife’s premarital home. It stated that the parties intended to live in her home as a family, that the house was to remain in the wife’s name only, and that in the event a petition for DOM was filed by either party, Upon entry of an order on the DOM the wife would pay to the Husband “a sum equal to one half of all principal payments and any capital improvements made with respect to the house between the date of the marriage of the parties and the date on which a petition for Dom was filed.” There was no challenge below to the enforceability or validity of the agreement. The trial court awarded the Wife her home as a nonmarital asset. As part of the Equitable distribution plan, the trial court awarded the Husband a one-half interest in the appreciation of the Wife’s premarital home. The trial court assigned a value of 285K at the time of the marriage in 1996. The trial court found that the value had increased to $557,813K at the time of DOM-an increase of $272,813K. The trial court then calculated the Husband’s one half of those capital improvements to award to the husband would be $136,406.50. The Wife argued the Husband was only entitled to credit for one half of the costs of the capital improvements and one-half of the principal mortgage payments made during the marriage. Review of the antenuptial agreement is de novo, as such agreements are governed by the law of contracts. The DCA Agreed with The Wife finding that the plain language of the agreement clearly limited the Husband to one half of the costs of the capital improvements and one-half of the principal mortgage payments made during the marriage. It was error to take into consideration the appreciation in the value of the home. The court remanded to calculate the value. The court also made note that there was no record evidence for the value assigned to the premarital home at the time of the marriage. The only evidence was the undisputed testimony that s was worth $341K, yet the trial court found it was worth $375K. This finding was reversed.
The next issue is the division of the party’s rental property valued at $103,898.69. There was a mortgage on the property, but conflicting evidence as to the amount and how it was paid off. The Husband paid it, but failed to prove he had done so with non-marital funds. The property was awarded to the Husband. The mortgage was not listed in the final Judgment, which was error as all liabilities and assets must be listed and distributed. This portion of the equitable distribution plan was reversed with directions to make findings regarding the amount of debt the Husband paid on the rental property, whether he used marital or nonmarital funds to pay the debt, and to factor the outcome into the overall ED plan.
The next issue on appeal is $75K that was paid to the pool business. The trial court found that the parties had loaned $75K to the pool business. The trial court awarded the pool business to the Husband as a nonmarital asset, “with the exception of the one-half of the $75,000.00 investment that was to be made payable to the Wife. The Husband argued that the funds were used to pay both business and personal expenses. The Wife testified as such and evidence was that it was a jointly depleted asset. The Wife argued it was a receivable. However there was no note or anything to indicate an intention that the 75K be repaid and therefore, The DCA reversed and remanded to delete the $75K from the parties’ marital assets.
The next issue was inclusion of a $48K+ savings account in ED plan and assigning it to the wife where the funds had been depleted during the pendency of the DOM on family expenses. The Husband conceded this issue. Again citing the Mobley case 18 So. 3d at 727 for the holding that depleted assets cannot be distributed or assigned absent proof of misconduct, this portion of the ED plan was reversed and remanded to delete the account from the marital assets.
Lastly, the trial court ordered the Husband to pay 100% of the Wife’s reasonable attorney fees totaling $210,810!! As a sanction for his misconduct in the underlying litigation. The Husband argued he should have only been responsible for that portion of fees caused by his misconduct. The DCA agreed, citing Pietras v. Pietras, 842 So.2d 956, 962-63 (Fla. 4th DCA 2003) holding that the fees imposed as a sanction must be based on the “additional work” that resulted from the husband’s litigious behavior. Id. At 962-963. The court noted the misconduct of the Husband was obvious and they affirmed the finding in that regard, but reversed to determine the amount of fees caused by the misconduct.