January 9, 2012 FAMILY LAW -CASE LAW UPDATES
By Elizabeth Wolt
Well you can certainly tell the Holidays are over: There was a plethora of new and interesting Florida cases to report on this week as well as some very interesting cases from around the country, which I have added at the end. Enjoy:
ALIMONY:
In the case of Gray v. Gray, 37 FLW D2862b First DCA reported December 28, 2012 held that awarding permanent periodic alimony without findings regarding Wife’s need and Husband’s ability to pay was error. At first glance a “no kidding” holding, but the facts are interesting. The DCA found that the trial Court abused its discretion in finding a “need” for the Wife by refusing to impute income to her Wife even though the Husband presented an expert who testified to her ability to earn income. The Court failed to explain why it rejected the expert testimony regarding the Wife’s employability. The DCA also found that the trial court lacked any record support for a conclusion that it was in the children’s best interest for the wife to stay home where the children went to school full time and had after school care available during her parenting time. The DCA pointed out that consideration of an award of alimony under Sec. 61.08 (2) Fla. Stat, the trial court must find actual need and ability to pay AND then examine “all relevant economic factors, including, but limited to” the nine factors identified in the statute and “any other factors necessary to do equity and justice between the parties.” Reversed and remanded.
CHILD SUPPORT/PATERNITY:
In this short opinion Shultz v. Shultz, 37 FLW D2865b First DCA reported December 28, 2012, the DCA found error in the trial court’s denial of the Former Husband’s petition to disestablish paternity where he provided unrebutted scientific evidence that he was NOT the biological father of the two children born during the party’s marriage! The DCA found the Former Husband had no child support obligation while carefully distinguishing paternity from legitimacy and stating that both children would retain their status as legitimate children. It appears this statement was made based on the definition of legitimate children born in lawful wedlock. It left me wondering what effect this may have on estate issues?
INJUNCTIONS-DOMESTIC VIOLENCE:
In the case of Reyes v. Reyes, 37FLW D 2853a Fifth DCA reported December 28, 2012, Holding that to allow a Motion to Modify go forward without an allegation of a change in circumstances would amount to “an improper attempt . . .to evade a court order and gain retrial of the issues without a timely motion for new trial or appeal.” Citing Shadow Lakes Woods Inc. v. Schneider, 414 So. 2d 3,4 (Fla. 5th DCA 1982). The court recognized that Sec. 741.30 Fla. Stat (2011) authorizes either party to a domestic violence injunction to file a motion to modify of dissolve the injunction at any time, and the statute provides that no specific allegations are required. The court also made note of the inconsistent and confusing state of cases on this issue, as recognized in Colarusso v. Lupetin, 28 So. 3d 238 (Fla. 4th DCA 2010). The court rejected arguments that a movant can obtain a modification based on a challenge to the initial procurement by looking to cases on other types of injunctions and concluding the movant does not get a second bite at the apple to argue matters that should have been initially argued-This Affirmed opinion still leaves us with inconsistent holdings between the DCA’s. We’ll have to await the Fla. SC to resolve this. I was hoping the question would have been certified and sent up.
EQUITABLE DISTRIBUTION:
In Liberatore v. Liberatore, 37 FLW D 2854a Fifth DCA reported December 28, 2012, the DCA, citing a Second DCA case, in a very short opinion ,found it error to allocate depleted marital assets to the Wife, which were used during the pendency of the DOM to pay her attorney absent a finding of misconduct.
CHILD SUPPORT MODIFICATION:
In a very long opinion with five separate issues, the case of Mayfield v. Mayfield, 37 FLW D2857a First DCA reported December 28, 2012 held that a Former Husband’s agreed voluntary payments above and beyond the ordered child support could not be credited against the increased support ordered. They came to this conclusion because there was no written agreement between the parties that the excess payments were intended to be credited or an advance on future payments. The DCA reversed the credit awarded to the Former Husband for his voluntary overpayment and vacated the corresponding reduction in his ongoing support obligation.
The second issue was the trial courts failure to make the modification retroactive to the date of filing. The DCA agreed and reversed stating that retroactive is the rule rather than the exception.
The third issue and fourth issues on appeal were easily resolved. The trial court ordered the parties to split unreimbursed medical costs equally rather than in proportion to their incomes. While the Court pointed out that “in proportion to their incomes” is the general rule, the parties consent Final Judgment required them to split them evenly. Therefore, the trial court’s even split was affirmed. The fourth issue dealt with uninsured orthodontic expenses. The trial court lumped them in as “health expenses” to be split evenly because they were uncovered expenses. However, the parties consent Final Judgment contained a separate provision specifically making the Husband 100% responsible for all non-insurance covered orthodontic expenses for the children. Therefore, the court reversed on this issue.
Lastly, the fifth issue dealt with the trial court’s refusal to award the Former Wife attorney fees on the grounds that, “despite what was reflected on the financial affidavits, there was not a disparity in incomes.” Apparently the trial court added the Former Wife’s new child support amount of her income in error. Therefore, the denial of attorney fees was reversed and remanded for reconsideration. Hmmm. Does anyone think the FH got the short end of the stick here. The increased child support was ordered retroactive to the date of filing. The FH already had voluntarily paid the increased amount yet was not allowed a credit for same. Therefore, didn’t he end up paying it twice?? I guess the lesson is to advise our clients to get a written agreement anytime they are requested and agree to pay an increased amount voluntarily that same shall be credited against future payments.
CHILD CUSTODY MODIFICATION:
In what must have been a very emotional case from our Second District, Weissman v. Weissman, 37 FLW D2819a Second DCA reported December 28, 2012, reversed a denial of visitation ordered per an ex-parte Order to a father. The facts were as follows: The parties were divorced in 2005. In 2011 the Former wife (FW) filed a motion for modification alleging the Former Husband (FH) and his girlfriend were alienating her oldest daughter from her. A guardian ad litem, Dr. Day, who was a licensed psychologist, was appointed for the children. In July 2012 the FW filed a motion to enjoin the FH’s girlfriend from having any contact with the parties’ three children based upon the report and recommendation of Dr. Day. FH moved to dissolve the injunction. FW filed for contempt for violating the injunction and to suspend his unsupervised visitation. FW then sought temporary sole parental responsibility to determine the best treatment for her oldest daughter. In response FH filed a motion to modify the injunction and to have supervised contact between his oldest daughter and his girlfriend. At hearing the FH withdrew his motion to modify the injunction based on a report by a Dr. Kuehnle (the opinion did not clearly identify her role, but it is assumed she was hired as an expert) that the FH’s girlfriend may pose a risk of emotional harm to the children. The trial court found the FH violated the injunction, but declined contempt because of the effect it would have on his medical career. The Trial court granted FW’s motion for temporary sole parental responsibility and found the oldest daughter needed immediate intensive psychiatric intervention. Parenting time between the younger children and their father was reduced. The oldest daughter would stay with her father. An Order was entered on all the Motions on 9/5/12.
On 9/18/12 the FW filed an ex-parte letter and a proposed order for a treatment program for the oldest daughter in California, which had the recommendation of Dr. Day-the guardian Ad Litem. An Ex-parte Order was requested because there was a concern the daughter would run away rather than go into the treatment program. The trial court entered the ex-parte order on 9/20/12, which ordered the FH to bring the oldest daughter to the court house on 9/21/12, so that the FW could take her to the program. The Order also ordered that the Father could have no contact with his children for ninety days after the family returned from the out-of-state treatment program.
In a writ of cert petition filed by the FH, while the petition and counter-petition for modification were still pending in the trial court, the FH claimed his rights of due process were violated. The DCA agreed, in part, finding that the trial court did not depart from the essential requirements of law in entering an order ex-parte for the children to participate in the treatment program selected by Dr. Day as the FH did have notice and an opportunity to be heard on those issues in the prior motion hearing. However, the language in the Order preventing him from any contact with his children for ninety days after treatment was completed was entered without any notice or opportunity to be heard. The Opinion states that, “Once the urgent situation regarding the oldest child ‘s treatment was resolved, the trial court should have held a hearing to decide the issue of visitation and contact that would occur after the treatment program was concluded, giving the Former Husband notice and an opportunity to be heard on that issue.” This is based on the fact that the DCA found no emergency situation that justified preventing visitation or contact for 90 days upon the family’s return from the treatment program without first affording the Husband Notice and an opportunity to be heard. When an emergency ex-parte order is entered, an opportunity to be heard should be provided to the opposing party as soon thereafter as possible. Failure to do so deprived the FH of his procedural due process. Petition denied in part; petition granted in part.
Recent cases from other states reported by the ABA:
CHILD CUSTODY:
(Alabama Civil Court of Appeals, December 14, 2012) Incredulously Held that a trial court may, in an initial custody determination, consider a parent’s sexual conduct as it relates to that parent’s character, without a showing that the conduct has been detrimental to the child; court may also consider fact that parent does not regularly attend church. WOW This is from the Alabamaappellatewatch.com
CHILD CUSTODY-UCCJEA
In re Dean
No. 11-0891
(Texas Supreme Court, December 21, 2012)
New Mexico was child's "home state" under Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), and, thus, New Mexico had jurisdiction over issue of child custody, although divorce action was filed in Texas first, where child was born in New Mexico and had lived there ever since; divorce and custody determinations involved different inquiries, and custody determinations were governed by the Act, regardless of whether there was an ongoing divorce. Read opinion at: www.supreme.courts.state.tx.us
Child Support
Richardson v. Boozer
No. 0774, Sept. Term 2011
(Maryland Court of Special Appeals, December 20, 2012)
For purposes of determining whether child's enrollment at community college to make up credits required for his high school graduation constituted enrollment in secondary school, and thus extended father's obligation to pay child support past age of 18, statutory term "secondary school education" included high school equivalency program, as high school equivalency programs were excluded from definition of "post-secondary education" and equated with secondary school for purposes of determining entitlement to in-state college tuition. From: Read opinion at:MDJudiciary@mdcourts.gov
Nuveen v. Nuveen
No. 20120246
(North Dakota Supreme Court, December 18, 2012)
Sufficient evidence supported trial court's conclusion that an upward deviation from the presumptive amount of child support in determining father's monthly support obligation was in children's best interests; trial court found that a deviation would be in the best interests of the children based on their more expansive needs, absent an upward deviation, parties' two younger children would miss out on trips, camps, and other comforts of life they used to enjoy, and there was a large disparity between parties' household budgets, specifically with regard to the difference between the two budgets for entertainment, with mother's lower than it should be. Read at: ND Supreme Court@ www.ndcourts.gov
Coleman v. McCullough
No. S-14367
(Alaska Supreme Court, December 14, 2012)
Child support rule defining adjusted annual income as "the parent's total income from all sources minus child support for children from prior relationships living with the parent" did not entitle biological father to deduction, when calculating his child support obligation for one out-of-wedlock child, for support he provided to later born child of another woman with whom he had long-term relationship and with whom he was cohabiting; father's support obligation for first child arose on date of its birth, and date of inception of prior relationship was immaterial. Read at: AK courts@courts.alaska.gov
Child Support – UIFSA
Jasen v. Karassik
2012 N.Y. Slip Op. 08525
(New York Supreme Court, Appellate Division, Second Department, December 12, 2012)
Equitable principles embodied in Uniform Interstate Family Support Act (UIFSA), as well as traditional common-law principles of comity, required Family Court to enforce terms of Canadian child support order providing for award of interest on child support arrears, absent showing of fraud in the procurement of the judgment or that recognition of the judgment would do violence to some strong public policy. Read at: NY Unified Courts@NYcourts.gov
Marital Agreements - Post-Nuptial Agreements
In re Marriage of Traster
No. 106,092
(Kansas Court of Appeals, December 7, 2012)
Postmarital agreement which contained specific stipulation in which husband and wife agreed that, if the marriage did not survive, wife was entitled to receive virtually all of the personal property acquired during the marriage through gift, inheritance, and joint effort of the parties did not violate public policy by encouraging husband to file for divorce as soon as possible, although agreement supported inference that the sooner husband filed for divorce, the sooner he would be able to acquire nonmarital assets for his retirement that would not be subject to distribution under the terms of the postmarital agreement. Read at: KS JudicialBranch@www.kscourts.org
Marital Agreements - Property Settlement Agreements
Grisham v. Grisham
289 P.3d 230
(Nevada Supreme Court, December 6, 2012)
Parties' oral open-court stipulation to their property settlement agreement (PSA) satisfied rule governing conditions under which a court may, on motion, enforce an agreement to settle pending litigation such that trial court could later enter divorce decree incorporating the PSA even without husband's signature; husband acknowledged, under oath, the PSA's key terms, that he had reviewed it, and that he agreed to its terms, and court minutes stated, "COURT ORDERED, absolute DECREE OF DIVORCE is GRANTED pursuant to the terms and conditions as outlined in the proposed Property Settlement Agreement, marked and admitted as Exhibit A, and lodged in the left hand side of the file." Read at: NVJudiciary@www.nevadajudiciary.us
Property Division
Smith v. Villareal
No. 108829
(Oklahoma Supreme Court, December 18, 2012)
Clear and convincing evidence existed to rebut presumption that husband intended to gift two properties purchased with his separate funds, for benefit of his daughters from previous marriage, to marital estate, even though husband and wife took title as joint tenants; closing company in charge of handling the transaction erroneously placed the properties in joint tenancy, mortgagee testified that husband was to take title in his individual name, sale contracts indicated buyer as husband's trust, and wife did not dispute that properties were purchased with husband's separate property. Read at: Justia.com@ law.justia.com
Devries v. Gallio
No. 57199
(Nevada Supreme Court, December 13, 2012)
Order denying allocation to husband of any portion of wife's share in business she obtained with separate property, to which husband devoted labor and skill without compensation, was adequately supported by trial court's findings in record that all of wife's contributions to business derived from her separate property, and that there was no evidence in record that husband's labor contributed to increase in business' value. Read at: NV Judiciary @ www.nevadajudiciary.us
Spousal Support
Banks v. Banks
No. 45A03-1203-DR-96
(Indiana Court of Appeals, December 14, 2012)
Ex-husband's deteriorating health from a chronic illness and his resulting unemployment and bankruptcy were sufficient to support reduction in amount of his incapacity spousal maintenance obligation based on ex-wife's physical incapacity, even if there had been no improvement in ex-wife's medical condition, where ex-wife had current ability to earn some part-time income, which was not present at the time of the divorce. Read at: IN Judicial Branch @ courts.in.gov
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