Smith Family Law Firm Blog

Smith Family Law Update: Week of March 13, 2017 (HAPPY ST. PATRICK'S DAY!)

Viscito v. Viscito: 3rd DCA, March 15, 2017:

On rehearing the 3rd DCA withdrew and replaced its pervious ruling of December 21, 2016 as follows:

Equitable Distribution: Marital Condo (good Kaaa discussion):

Wife and sister bought a condo prior to Wife being married. Upon being married, Wife and Husband bought sister's 50% share. The condo remained in Wife's name. At the time of marriage the fair market value was $225,000.00 with a mortgage of $133,000.00. At the time of trial the fair market value was $690,000.00 with a mortgage of $224,448.00. The passive appreciation was calculated properly by the trial court by taking the Loan-to-value ratio at time of marriage (.522) x Current fair market value ($699,000.00) = $360,180.00 - Current mortgage amount ($224,448.00) = Total passive appreciation ($135,732.00). Trial court did not abuse its discretion by only awarding Husband 50% of the passive appreciation ($67,866.00) for his entire share of the condo even though some marital funds had been used to acquire sister's 50% share and to make certain mortgage payments as Husband's voluntary unemployment and gambling losses had caused the aggregate mortgage debt to increase. Husband's argument that he should be awarded based on ½ of the net fair market value, plus one 1/2 of the passive appreciation on Wife's marital interest, plus certain mortgage payments from marital funds which reduced the mortgage debt on the non-marital debt was rejected. Husband's position did not take into consideration his gambling loss and unemployment ramifications nor did his calculation comply with the requirements of Kaaa.

Alimony:

Husband had only pled for permanent alimony (no other form or forms of alimony) based on the 21 year marriage. The trial court's rejection of this request was supported by the record as evidence existed to show that Husband was employable but voluntarily unemployed and Husband's gambling debts and misuse of marital funds adversely affected the family's financial position and lifestyle (Fla. Stat 61.08(2)). Further, Husband could not request other forms of alimony as he had only requested permanent alimony.

Pierre v. Jonassaint: 3rd DCA, March 15, 2017:

Trial court did not err in denying rehearing based on alleged fraud without an evidentiary hearing as Wife had failed to raise her allegations of fraud with sufficient specificity to raise a colorable claim of entitlement to relief. However, trial court did err by not including specific written findings of fact in the final judgment to "facilitate effective appellate review of the trial court's property distribution scheme." The court's referencing the parties' financial affidavits was inadequate as the final judgment did not correspond with either financial affidavit and the final judgment only specifically referenced two marital assets, neither being clearly identified or valued.

Smith Family Law Update: Week of March 6, 2017

Henson v. Henson: 1st DCA, March 7, 2017:
Trial court erred in not conforming rulings in the final judgment to the evidence and its oral pronouncements at trial. However, when trial court indicated that it would take father’s proposed timesharing schedule into consideration, but then failed to mention it in the final judgment there was no error as trial court’s remark that it would take it into consideration was not a pronouncement.

McClure v. Beck: 4th DCA, March 8, 2017:
Trial court erred in giving father ultimate decision making authority for the children but not defining the “specific aspects of the child’s welfare” over which father shall have ultimate responsibility. Giving the primary residential parent unlimited decision making authority over all matters regarding the children is incompatible with shared parental responsibility.

Gonzalez v. Hewitt: 5th DCA, March 10, 2017:
Trial court erred in denying mother’s motion to set aside default judgment in paternity case without an evidentiary hearing regarding her allegations of excusable neglect. Further, the trial court erred in failing to make appropriate findings regarding the best interest of the child pursuant to Florida Statutes 61.13(3) and by failing to include an explanation of the method by which mother can establish timesharing with the child.

J.S. V. DCF: 5th DCA, March 7, 2017:
Trial court erred in terminating parental rights (as conceded by DCF) as evidence supporting termination was not legally sufficient. Only basis for termination was mother’s failure to substantially comply with the case plan (which was the result of the children being exposed to domestic violence of mother’s boyfriend on mother and mother testing positive for controlled substances. Th plan included drug testing and substance abuse counseling).

Florida Family Law Update: Week of Feb. 27, 2017

Florida Family Law Update: Week of Feb. 27, 2017

Conlin v. Conlin, 2nd DCA, March 1, 2017:
Trial court erred in using husband’s gross income, as opposed to his net income, in determining his alimony calculation. Trial court also erred in not making a determination as to whether a loan taken out for the benefit of the couple’s daughters was marital or non-marital (no guidance provided by appellate court as to which type it should have been though).

Tepedino v. Baker, 3rd DCA, March 1, 2017:
Father’s petition for writ of prohibition to prevent the trial court from hearing a Motion to Establish Time-Sharing (alleging non-compliance with Rule of Civil Procedure 1.110(h) and Florida Family Law Rule of Procedure 12.110/ as the pleading was titled a “motion” and not a “supplemental complain or petition") was denied. Appellate court did not reach determination as to whether Mother’s filing would act as a procedural bar to her relief. Instead seeking prohibition was simply improper because where a trial court has subject matter jurisdiction, prohibition is inappropriate to prevent an erroneous exercise which can be corrected on appeal. Concurring opinion cautions that the trial court allowing the motion of Mother to go forward without correcting the pleading to convert it to a supplemental petition or complaint will create a waste of judicial resources (I.e. Father had right legal argument but used wrong legal vehicle to make his argument).

Singer v. Singer, 4th DCA, March 1, 2017:
Trial court erred when its order denied Wife attorney’s fees after indicating at the hearing that the court was reserving as to entitlement. Further, appeal of court’s determination of Husband’s entitlement to fees was not ripe as an amount of fees had not yet been set.

Foley v. Foley, 5th DCA, March 3, 2017:
Trial court ordered that child time-sharing be modified and that child support would be modified based upon a new child support guidelines worksheet to be prepared by father’s counsel. However, trial court erred in ordering, after subsequent review, that the court lacked the authority to modify support where the matter was not plead or tried by consent and where no financial affidavits were submitted. The record, contrary to the trial court’s order, revealed that financial affidavits had been admitted into evidence and that both parties were on actual notice that child support modification was at issue.