DISSOLUTION OF MARRIAGE, TEMPORARY MAINTENANCE AND SUPPORT, ARREARAGES, LIFE INSURANCE, PERMANENT ALIMONY
In the case of Payton v. Payton, 38 FLW D513 (Fla. 1st DCA opinion filed March 6, 2013) The Husband appealed the Final Judgment on several issues. First, the Trial Court denied the Husband's Motion for rehearing, without explanation, and failed to correct the child support arrearage. His counsel reserved the issue of the arrearage at trial as none of the parties knew exactly what was owed. The Husband's detailed payment records were subsequently faxed to the Wife's counsel showing an arrearage of $1,255.00 rather than the $2,530.09 reflected in the Final Judgment. As there was no competent substantial evidence to support the arrearage amount, the issue was remanded for more specific findings.
Next, The Husband alleged error in the Court's calculation of the Wife's monthly health insurance expenses. Her financial affidavit listed $300.00 a month for the cost of health insurance for "children common to both parties." In the monthly insurance section, the Wife listed $300.00 for health insurance excluding the portion paid for any minor children of this relationship. The Husband contends the Wife erroneously calculated $300.00 twice for one monthly expense overstating her monthly expenses. The temporary order indicated she paid $300.00 a month for coverage of both herself and their minor child. Because the error was evident on its face, the court remanded directing the trial court to make findings regarding the actual costs of the Wife's insurance.
Next, the Husband challenged the trial court's Order for him to obtain and maintain $50,000.00 to secure his alimony obligation asserting there was no evidence adduced regarding reasonable availability, cost and his ability to pay for same. The DCA agreed and reversed the award and remanded for the trial court to make the requisite findings.
Lastly, the Husband contended error with the award of permanent alimony based on the parties 20 year marriage. The Final Judgment determined the Wife's needs were more than that found and ordered in the Temporary Order. The trial Court concluded no other form of alimony was fair and reasonable under the circumstances. The DCA finding error in the health insurance and life insurance issues reversed the alimony award and instructed the trial court to either award an amount that did not result in a significant discrepancy between the parties' net incomes, or to make findings explaining why a different amount was appropriate citing the general rule that a former spouse should not be left "shortchanged" by marital obligations to the other former spouse.
DISSOLUTION OF MARRIAGE-TEMPORARY SUPPORT-PRENUPTIAL AGREEMENT
In Schecter v. Schecter, 38 FLW D517 (Fla. 3rd DCA opinion filed March 6, 2013) the Former Wife appealed a non-final order terminating her former Husband's previously agreed to and court ratified temporary alimony and attorney fees obligations. The DCA found no abuse of discretion in termination of her temporary alimony as the amount the Former Husband had already paid to her exceeded the amount agreed to in the parties' prenuptial agreement. The Court did find error in the termination of payment of her temporary attorney fees. The prenuptial agreement in this case provided for attorney fees " every month . . ..so long as this matter is pending," The clause addressed a 15% holdback. The parties agreed that 15% of the fees would be reviewed after judgment to determine reasonableness and that the court below would ultimately determine to the total amount of fees and costs to which she would be entitled. The matter was clearly still pending and therefore, unless the Former Husband could demonstrate that consideration of the financial resources of both parties or some other equitable imparative mandated termination, the trial court abused its discretion in deciding to terminate this obligation.
DISSOLUTION OF MARRIAGE-ATTORNEY FEES
In Dybalski v. Dybalski, 38 FLW D585 (Fla. 5th DCA opinion filed March 8, 2013), the trial court abused its discretion in awarding attorney fees to the Former Wife in connection with several post-dissolution motions filed by the Former Husband, as his conduct was not sufficiently vexatious to justify the award.
This was the parties' third appeal. They were divorced by a consent Final Judgment dated 2/6/2009 that resolved most issues related to a 13 year marriage. A Supplemental Final Judgment was entered resolving the equitable distribution issues. The Husband appealed that Order and same was remanded because of a lack of findings to support an unequal distribution of the marital assets. On remand, the Court redistributed to roughly a 50/50 split. The court awarded the Former Wife $5,000.00 in attorney fees. The Husband appealed the award of attorney fees and the fee was affirmed per curium on 5/15/2012. In this latest appeal, the Husband appeals the attorney fees awarded to the Wife for defense of his post dissolution motions. He filed a Supplemental Petition To Modify the Final Consent Judgment seeking custody of the parties' minor children. He also filed a Motion for Contempt and for Enforcement of the Final Consent Judgment. The Wife filed a Motion to Dismiss the Supplemental Petition To Modify the Final Consent Judgment, which was denied finding it was likley stale due to a stay pending appeal. The Husband's Motion's were referred to a Magistrate on 5/11/2011. A hearing took place on 9/22/11. Immediately prior to hearing the Magistrate denied the Husband's Motion for a Continuance filed. His grounds were to have time to ascertain the effect testifying would have on his children. Upon this denial, the Husband dismissed all the motions set for hearing. On 9/30/11, the Former Wife moved to be awarded $5,200.00 in attorney fees with no grounds alleged in her Motion other than the Husband's withdrawal of his pending motions. The Court awarded the Former Wife her attorney's fees based on the Husband's withdrawal of his pending motions finding the withdrawal a de facto voluntary dismissal even though the Husband testified he might bring them up at a later date. The only findings of his ability to pay were a motorcycle he had listed on his financial affidavit worth $9K; the fact that he had appealed a prior order pro ce; and that he was currently represented by a private attorney. He, however, testified that he had previously sold the motorcycle listed on his financial affidavit; that his private attorney had not been paid, and that his pay had just been cut. The DCA reviewed the award under an abuse of discretion standard. Finding that both parties were left in an equal financial position following dissolution, it is an abuse of discretion to award attorney's fees absent evidence of conduct which causes the opposite party to unreasonably incur fees. In this case, the DCA found there was no evidence that the husband engaged in unnecessary or vexatious litigation. His Motions did not appear frivolous and he offered a valid excuse for dismissing them. The award was reversed.
DISSOLUTION OF MARRIAGE-CHILD CUSTODY
In Fazzaro v. Fazzaro, 38 FLW D578 (Fla. 2d DCA opinion filed March 8, 2013) The Husband appealed the Final Judgment dissolving his marriage. The DCA found an abuse of discretion where the parenting plan provided for shared parental responsibility, but the trial Judge gave the Former Wife final decision making authority over matters involving the parties' children should they be unable to agree; and by including a parenting plan, which assigned the Former Wife ultimate responsibility for child's education and non-emergency health care. The Court rejected the Former Wife's assertion that the award of ultimate responsibility was supported by the level of hostility between the parties. As noted by a sister court, "such a ruling gives one parent complete control over all the decision making, which undermines the intent of the child custody statute regading shared parental responsibility." See Kuharcik v. Kuharcik, 629 So. 2d 224, 225 (Fl.a 4th DCA 1993). The provisions in the final Judgment granting the Former Wife ultimate authority were reversed.
DISSOLUTION OF MARRIAGE-ALIMONY-IMPUTED INCOME-VOLUNTARY UNEMPLOYMENT
In Broemer v. Broemer, 38 FLW D536 (Fla. 1st DCA opinion filed March 6, 2013), the former wife appealed portions of the amended final judgment dissolving her 27 year marriage contending the trial court abused its discretion in imputing income to her and in denying her motion for attorney fees and costs. She also alleged error in awarding durational alimony rather than permanent. The DCA affirmed the imputation of income and denial of an award of her attorney's fees and costs and remanded the alimony issue. Income can be imputed to a voluntarily unemployed or underemployed spouse with the burden of proof on the spouse seeking to impute income. The Former Husband presented evidence such that there was no abuse of discretion found in the income imputed to her. The Former Husband had a vocational expert testify.
The issue of whether the trial court correctly applied the law to the facts of the case regarding an alimony award was reviewed de novo. In this case, there were insufficient facts to support the refusal to award permanent alimony and the case was remanded for the requisite findings to be made. The award of attorney fees was reviewed for an abuse of discretion. The general standard being need and ability to pay, the court had ordered the Former Husband to pay $9,600.00 towards the Former Wife's temporary attorney fees and costs and finding that the equitable distribution enabled her to pay her current fees and costs denied any additional award. The issue was remanded only insofar as the findings on the other remanded issues might impact an award of attorney fees and costs such that the issue might be revisited.
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