Smith Family Law Firm Blog

Smith Family Law Update: April 3 through April 14, 2017

Martinez v. Martinez: Fla. 2nd DCA, April 5, 2017:
Where evidence that Wife’s need (in a 30 year marriage) exceeded the trial court’s award of alimony where Husband had ability to pay the articulated need, it was error to award less than the need as evidenced by Wife. It was improper to impute to Wife some additional form of income which was only speculative.

Sciame v. Sciame: Fla. 2nd DCA, April 5, 2017:
Trail court erred in ordering Former Husband to elect survivor benefits to secure the award of a portion of his pension to Wife. Adding such a provision in an enforcement proceeding was an effective modification of equitable distribution without authority.

Cook v. Cook: Fla. 2nd DCA, April 5, 2017:
Trial court erred by deny permanent alimony in 18 year marriage without including the statutory findings of facts to support the denial of alimony. Statement that”[t]here was no competent substantial evidence to support the wife’s request for alimony. The Court has reviewed the Wife’s alimony claim in accordance with Florida Statute 61.08” was insufficient.

Rodriguez v. Lorenzo: Fla. 3rd DCA, April 5, 2017:
Trial court’s ruling denying Wife of a short term marriage alimony was upheld. Further, Wife’s claim for “psychological damages” for acts which occurred after the entry of the final judgment were improper and court did not have jurisdiction to entertain such claims.

Fawcett v. Gainey: Fla 5th DCA, April 7, 2017:
Trial court erred in including Wife’s engagement ring in value of jewelry for equitable distribution as engagement rings a pre-marital property.

Noe v. Noe: Fla. 1st DCA, April 13, 2017:
Trial court did not err in denying a motion to dissolve and injunction for domestic violence. While Father may have demonstrated that the scenario underlying the injunction no longer existed, it did not mean that the Mother could not show that she reasonably maintained a fear of becoming a victim of domestic violence.
***Facts are horrible on this one. Click link to learn more.

Regan v. Regan: Fla. 4th DCA, April 12, 2017:
Husband, on appeal claimed that the reduction of his alimony from $9,000.00 (which was previously agreed to) a month to $7,800.00 a month was insufficient. He claimed that Wife should have had minimum wage imputed to her and that she be required to withdraw from her retirement to reduce alimony obligation. Trial court found that Wife’s steps to decrease her monthly need (by downsizing) was a basis for a reduction in alimony. However, trial court did not have to impute minimum wage to Wife when such earnings were not contemplated by the Marital Settlement Agreement. Further the Marital Settlement Agreement did not contemplate the use of retirement funds or income which could be derived from such funds a source of income for modification.

Brussot v. Brussot: Fla. 4th DCA, April 12, 2017:
Trial court erred in awarding property without providing written findings determining whether the property was a marital asset and making written findings valuing and equitably distributing the property.

Aranda v. Padilla: Fla. 4th DCA, April 12, 2017:
Trial court erred in paternity case by 1) awarding the mother sole parental responsibility without finding that shared parental responsibility would be detrimental to the child; 2) failing to address timesharing on holidays, special occasions, and school breaks; and 3) failing to consider the parties’ financial positions when denying father’s request that travel expenses be shared.

Smith Family Law Update: Week of March 27, 2017

Hooker v. Hooker: Fla Sup Ct, March 30, 2017:
Fourth DCA erred by not deferring to the trial court’s findings as to whether there had been donative intent (converting non-marital property to marital property). The 4th DCA should have only focused on whether the finding was sufficiently supported by the record as would have been appropriate under the “competent, substantial evidence” standard. The 4th DCA made the error of substituting its own judgment and findings of fact regarding whether the interspousal gift existed by improperly reevaluating the evidence to determine if it satisfied the preponderance of the evidence standard (which is applicable at trial, not on appeal).

***Interesting facts in the underlying case at the trial level as the parties had a prenuptial agreement indicating that the parties would keep their premarital assets and any appreciation of those assets. The two properties at issue were indeed premarital and neither were converted to Wife’s name in whole or in part. Wife argued that there was still an interspousal gift (elements being a) donative intent, b) delivery or possession of the gift, and c) surrender of dominion and control of the gift). Husband used non-marital funds to build on the properties and pay for expenses on the properties. The properties were used as the family’s summer homes. However, the trial court found that there was donative intent stating that “In contrast to the evidence presented at the Final Hearing regarding the way the Husband exclusively handled his other real property, assets and investments, [the subject properties] were treated as the joint family property of the Wife.”


Patel v. Shah: Fla 3rd DCA, March 29, 2017:
Trial court erred in finding that Wife had not filed a counter-petition and therefore had not raised a need for alimony. The Wife’s responsive pleading, though titled “Reply,” was functionally a counter-petition as it a) contested the Husband’s claim that there was no marital property, b) identified Husband’s property, c) described Husband’s income, and d) described Wife’s non-marital belongings. Wife’s “Reply” also included thirty “Prayers” including requests for the equivalent of alimony and equitable distribution. Trial court’s failure to accept the “Reply” as a counter-petition led to several additional errors such as failing to require Husband to comply with mandatory disclosure as well as the finding that Wife had waived a claim for alimony.


Rorrer v. Orban: Fla 3rd DCA, March 29, 2017:
Trial court erred in several ways by applying its own calculation when awarding attorney’s fees based upon its belief that the parties should share in the expense of attorney’s fees. The court wrongfully combined the attorney’s fees and costs of the parties and then awarded Wife only a portion of that total based on a comparison of the parties’ incomes rather than on a determination of need and ability to pay. The court further erred by not considering Husband’s documented improper litigious behavior which ran contrary to the court’s own stated goal of encouraging litigant to economize legal expenses. Finally, Husband’s argument that the post-judgment fees should not have been considered as the Court had not retained jurisdiction was rejected.


Riddle v. Riddle: Fla. 4th DCA, March 29, 2017:
A court does not need to find a substantial change in circumstances to modify a temporary time sharing (custody) order. Such a finding is only necessary when modifying a final decree. The trial court need only not abuse its discretion in entering such a modification.

Smith Family Law Update: Week of March 20, 2017

Blair v. Blair: Fla 2nd DCA, March 22, 2017:

Trial court erred in aspects of valuation of marital portion of non-marital business, “dissipated assets”, as well as calculation of Husband’s income:

BUSINESS VALUATION:

1. Several of Husband’s arguments were rejected by the appellate court as there was simply a difference of opinion between Husband’s expert and Wife’s expert and the trial court had discretion to choose which expert it found more credible.
2. The parties did agree that the business was non-marital but that there had been an increase in the value of the company due to Husband’s efforts.
3. Trial court erred in not including the business real property when valuing the company. While the change in value of the real property may have been due to passive factors (and the calculation of the marital portion of the non-marital business is dependent on an increase of value resulting from Husband’s marital labor under Florida Statutes 61.075(6)(a)(1)(b)), the failure to include the property owned by the business, which had depreciated during the marriage, resulted in an inflated valuation of the “marital portion” of the non-marital business. Even if some of the appreciation or depreciation of some of the assets of the business resulted from passive market forces, the overall appreciation of the business resulted from Husband’s marital labor, at least in part, and so the portion of the overall appreciation resulting from the marital labor was subject to equitable distribution.
4. In valuing the business, trial court erred in including the retained earnings of the company while, at the same time, ordering that all retained earning be paid out the executives as part of equitable distribution. This constituted a double-dip.

DISSIPATED ASSETS:

Trial court erred in charging Husband in the distribution scheme with dissipation of assets where there was no evidence that there was misconduct in the dissipation. Here the record reflected that the use of these assets were indeed for living expenses and actually, in part, paying expenses of Wife.

INCOME:

While a company’s retained earnings can be included in calculating income if the earnings were retained for noncorporate purposes, such as to shield this income from the reach of the other spouse during dissolution, (the improper motive for its retention making it available “income”), the Wife in this case offered no evidence or theory that this was the case. As such, the trial court erred in counting the retained earnings as income for alimony and child support calculations.

***As a side note, Husband also challenged the Final Judgment as it had been entered 8 months after the respective counsels submitted written closing arguments and proposed Final Judgments. While the 2nd DCA found the delay troubling it was not per se a basis for reversal citing to McCartney v. McCartney.

Myrick v. Myrick: Fla 2nd DCA, March 24, 2017:
Trial court erred in awarding attorney’s fees to Father from Mother based upon, what the appellate court was forced to assume was, the inequitable conduct doctrine. The order lacked the proper findings of fact. However, the 2nd DCA went further and stated that the trial court also erred as Mother’s refusal to agree to an increase in timesharing did not constitute the type of behavior contemplated by the inequitable conduct doctrine.

Rebolledo v. Cordero: Fla. 3rd DCA, March 22, 2017:
Wife filed for divorce in June of 2011. Husband filed a counter-petition. Wife then filed a dismissal of her petition for dissolution. Wife did not file a response to the counter-petition for dissolution. Husband secured a default on April 23, 2012 on his counter-petition. Wife filed a motion to set aside the default which attached as exhibits a proposed answer and counter-claim. On the eve of the hearing on Wife’s motion, Husband dismissed his counter-petition.

Trail court erred in lifting the default and then subsequently awarding Wife temporary and back support ($50,000.00 a month and $668,037.00 respectively). The trial court did not have jurisdiction to provide any of this relief (lifting of default or temporary relief) after Husband voluntarily dismissed his counter-petition. The only pleading Wife could file after the entry of the default was a motion to set the default aside. The filing of the dismissal by Husband rendered that pending motion moot and the court no longer had jurisdiction.

Van Maerssen v. Gerdts: Fla. 4th DCA, March 22, 2017:
Trial court erred in awarding wife temporary “undifferentiated” spousal and child support ($6,500.00 a month). There should have been separate awards (temporary spousal support and child support). The undifferentiated nature of the support further compounded the 4th DCA’s inability to determine whether the award was supported by the evidence presented.

Bernard v. Bernard: Fla. 4th DCA, March 22, 2017:
Former Husband, in violation of court order did not transfer his 401K to his Wife. Instead he withdrew the money, gave none to his Wife, and also failed to pay her support. Trial court found Husband in contempt, ordered that Husband pay Wife a specified amount in 30 days or the court would issue a writ of arrest and commitment and 179 days of incarceration. Trial court erred only in its decision regarding incarceration as the trial court relied solely on the statutory presumption of ability to pay and former husband’s failure to rebut said presumption. On remand trial court needs to make affirmative findings as to whether Former Husband has ability to pay or not.

Harriger v. Harriger: Fla 5th DCA, March 24, 2017:
Trial court erred by not including written findings stating whether accounts, which the court obviously treated as non-marital, were or were not non-marital.

D.O.R. v. Silva: Fla. 5th DCA, March 24, 2017:
Lower court erred in ordering paternity testing in a matter wherein the Department of Revenue was attempting to register and enforce a Texas order which established paternity and ordered child support. A party whose parentage of a child has been previously determined by or pursuant to law may not plead nonparentage as a defense to a proceeding under Florida Statutes 88.3151. Further, father had not filed a petition to disestablish paternity (which is possible in certain circumstances under Florida Statutes 742.18(1) if there is a basis and a petition if filed with a specific affidavit).