Smith Family Law Firm Blog

Smith Family Law Firm Case Law Update: Week of November 6, 2017

Shaleesh v. Shaleesh: Florida 3rd DCA, November 8, 2017:
Trial court’s decision to allow a temporary suspension (a non-final order) of the parties’ timesharing plan was upheld. In order to obtain a temporary custody modification, the moving party must satisfy a two-part test by establishing through competent, substantial evidence that (1) there has been a substantial or material change in circumstances and (2) the modification is in the best interest of the child involved. Here the mother testified and the minor child underwent an in camera interview.

Brady v. Brady: Florida 5th DCA, November 9, 2017:
Trial court’s judgment was remanded because a) alimony was incorrectly calculated on the parties’ gross incomes as opposed to their net incomes, b) while insurance may be necessary to secure an award, the judgment did not include the findings necessary as to insurability, affordability, and whether appropriate circumstances existed to require said insurance and c) the award of attorney’s fees did not include a finding of need, ability to pay, and factual findings to justify the award (such as reasonable number of hours and reasonable hourly rate).

Smith Family Law Case Law Update: Week of October 23, 2017

Duncan v. Brickman: Florida 2nd DCA, October 25, 2017:
A simply disastrous case from the stand point of delays in magistrate reports and orders. The result was overlapping rulings that negated one another. However, as a matter of law, a trial court cannot modify a custody order as a sanction for contempt. Further, the contempt order itself, rendered three years after the underlying evidentiary hearing cannot stand as a matter of judicial discretion (which is the typical deference given to trial courts with regard to contempt orders).

West v. West: Florida 5th DCA, October 27, 2017:
Trial court adoption one party’s proposed final judgment was error. In this case the court did not allow closing arguments but simply had the party’s submit proposed final judgments. While doing so is not uncommon, it was uncommon for husband to submit his proposed final judgment without copying wife. This did not allow her to make corrections or objections. Further, as the court did not make any oral rulings or findings, the simple adoption of one party’s judgment without any alteration when the final judgment had portions not supported by evidence was enough to remand for a completely new final judgment.

Smith Family Law Update: Week of October 16, 2017

Hodge v. Hodge: Florida 5^th DCA, October 20, 2017:

On a second appeal, the 5th DCA found that the trial court again misapplied the Kaaa factors when determining the marital value of a premarital property.  As such, Wife's share in the property would increase and the investment income from said asset would also necessarily increase requiring a recalculation of alimony for wife.

Lovejoy v. Poole: Florida 5^th DCA, October 20, 2017:

Trial court's reliance on Pyne v. Black to dismiss a motion to enforce child support was error.  Trial court's denial of standing based on Pyne ignored that the only standing issue in Pyne dealt with post-majority child support.  Further, the trial court, unlike in Pyne, did not allow an evidentiary hearing before dismissing the motion.

Smith v. Smith: Florida 4^th DCA, October 18, 2017:

Remand from the Florida Supreme Court which noted that although the marriage was invalid as it stood the parties are not foreclosed from seeking court approval in further proceedings.

Fuller v. Sandler: Florida 3^rd DCA, October 18, 2017:

"Stay away" orders are not appealable as they are nonfinal orders pending an evidentiary hearing for injunction.

Scudder v. Scudder: Florida 2^nd DCA, October 20, 2017:

While Wife's challenge of Final Judgment of Dissolution adopting Marital Settlement Agreement, and Parenting Plan that she agreed to may ultimately be successful based upon both parties essentially lying to the Florida court so that the Florida court could initially take jurisdiction (as subject matter jurisdiction cannot be conferred by waiver, acquiescence, or agreement of the parties), the issue had to be remanded to the lower court as an evidentiary hearing had not yet been held on the matter.