Florida Family Law Case Updates May 17, 2013

FAMILY LAW CASE LAW UPDATES
MAY 16, 2013
PATERNITY-CHILD CUSTODY-TIME SHARING-MODIFICATION
In Winthrop v. Castellano, 38 FLW D873a (Fla. 5th DCA opinion filed April 17, 2013) the Father appealed an Order that restricted his rights of contact with his 13 year-old daughter. The DCA quashed that part of the trial court’s order that restricted the father’s contact to take place in a “therapeutic environment.” The Order was entered following a hearing which was only to address Thanksgiving contact. The imposition by the trial court on the father’s right to in-person contact with his daughter was a violation of his due process rights because the Order significantly modified his time-sharing rights when the only matter to be addressed at the November 9, 2012 hearing was the upcoming Thanksgiving contact.
DISSOLUTION OF MARRIAGE-SETTLEMENT AGREEMENT-CHILD SUPPORT
In Weaver k/n/a Corey and Weaver, 38 FLW D874b (Fla. 2d DCA opinion filed April 19, 2013) in a consolidated appeal, the Former Husband appealed the final judgment awarding his adult son and former Wife reimbursement of funds they paid toward the son’s college expenses. He also appealed a final judgment awarding the former wife the costs of litigating the marital settlement agreement.
The DCA affirmed the trail court’s order making the former husband responsible for college expenses. The son and former wife sued the former husband for breach of contract for failure to contribute the amount they expected towards his college expenses. The former wife and former husband entered into an MSA on May 26, 2007, as part of their dissolution of marriage. The agreement provided that [b]oth parties agree that each will use their best efforts to provide funds” and that “[t]he contribution of each parent shall be calculated on the basis of the ratio between their gross annual incomes as reported [i]n their most recent federal income tax return immediately preceding the academic year.”
The trial court found that the former husband had not used his best efforts and entered an Order for him to pay $41,603 to the son and the former wife as costs of college education. The Former Husband argued on appeal that the former wife has not used her best efforts to contribute funds as required by their MSA; that she was willfully under-employed, which resulted in the former husband being 97.4%-99.9% responsible for their son’s college education expenses. However, because the former husband did not plead these arguments as affirmative defenses and did not argue them at trial, the DCA could not review them for the first time on appeal and accordingly, affirmed the trial court’s award.
In the companion case, the former husband’s appealed of the award of attorney fees and costs. The DCA, stating that the discretion afforded to the trial court to award fees and costs is not unbridled. See Brophy v. Condon, 771 So. 2d 7 (Fla. 2d DCA 2000). The burden of proving costs is on the moving party. In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So. 2d 612, 616 (Fla. 2005). Specifically the Former Husband challenged expert witness fee of $10,536.88. The DCA finding that the fee was not for deposition, trial testimony or of a type required of a CPA and the result was not an expert opinion. He described expenses, tabulated totals and examined the source of payment. Accordingly, the award of the expert witness fee as costs was reversed.
CHILD CUSTODY-VISITATION-ORDER
In Ingram v. Ingram, 38FLW D856b (Fla. 4th DCA, opinion filed April 17, 2013), an Order establishing summer visitation was affirmed and restriction regarding possession of firearms by child or by father in presence of child was found to be overly broad absent evidence showing child should not be allowed to play with toy guns.
This was affirmed per curiam finding that none of the arguments made by appellant had been preserved by proper objection in the trial court. In addition, the issue was moot for previous summer’s vacation, but stating the restriction regarding guns was overly broad as there was no evidence that a pop gun, BB gun, water pistol or some other childhood toy should not be allowed. Therefore the visitation schedule was affirmed and the gun restriction reversed.
DISSOLUTION OF MARRIAGE-INJUNCTION AGAINST DV-JURISDICTION
In Rudel v. Rudel, 38 FLW D858a (Fla. 4th DCA, opinion filed April 27. 2013) The Wife appealed and the DCA found that the trial court did nor err in determining that it did not have subject matter jurisdiction over the Wife’s dissolution of Marriage petition where the Wife was in the United States on a non-immigrant tourist visa, has not established actual residency within an intent to remain permanently within the state-Contrary to Wife’s assertion, trial court did not rule as a matter of law that Wife’s tourist visa prevented court form acquiring subject matter jurisdiction-Claim that under Uniform Child Custody Jurisdiction and enforcement Act, trial court has jurisdiction over wife’s petition insofar as she sought child custody may not be raised for the first time on appeal. Moreover, even if trial court had jurisdiction, it was apparent trial court dismissed action on grounds that Florida was inconvenient forum where parties and child were German citizens, and husband’s suit for dissolution of marriage was pending in Germany. The trial court was found to have prematurely entered final judgment dismissing petition for injunction against domestic violence where the wife had presented sufficient evidence to require the husband to counter the evidence. The trial court’s conclusion that the wife lured the husband to Florida to serve him with papers did not defeat the undisputed evidence of acts of domestic violence. The case was remanded for a new hearing on this issue.
JURISDICTION-DISSOLUTION OF MARRIGE-TORTS
In Chanin v. Feigenheiner, et al. (Fla.4th DCA, opinion filed April 17, 2013) The Wife appealed the trial court’s dismissal for lack of jurisdiction her claim in torts for deceptive and unfair trade practices where the Mother who was divorced from the father filed a petition for modification of child support as well as various counts of fraud, deceptive and unfair trade practices, and negligence against the father’s company, it’s managers and accountant’s for alleged assistance in helping the father to hide his income so as to lower his child support. The DCA found that the trial court erred in dismissing for lack of jurisdiction all fraud, statutory violation and negligence counts without prejudice to filing them in civil division. The DCA found that the proper remedy was to simply transfer them and not dismiss.