Smith Family Law Firm Blog

Grandparent Rights via Colorado and Facebook/Cyberstalking

Ledoux-Nottingham v. Downs:  5th DCA, April 2, 2015

The parties lived in Colorado.  Ex-Wife moved to Florida with the minor children shortly after her ex-husband's death.  Ex-husband's parents (paternal grandparents) timely initiated a proceeding in Colorado, seeking visitation with the children (something that is allowed in Colorado but not in Florida).  In 2012 the Colorado court rendered a final order determining that it was in the best interest for the minor children for the Grandparents to have visitation and telephone contact.  Mother, in 2014, moved to domesticate the Colorado in Florida (which does not recognize grandparent visitation rights) and to modify the the Colorado order to remove the grandparent time sharing as not being constitutional and against public policy in Florida.  Domestication was granted but modification was denied.  Mother, on appeal, did not challenge the jurisdiction of the Colorado court to enter its final order or the domestication of the Colorado order pursuant to the Full Faith and Credit Clause of the U.S. Constitution.  Instead, Mother argued that the Colorado order in unenforceable as a matter of Florida law and public policy because it violates child rearing autonomy guaranteed to parents under the Florida Constitution.  The 5th DCA affirmed the trial court's decision but also noted conflict with the 4th DCA which has found that the Full Faith and Credit Clause does not trump Florida's overriding public policy of a guarantee.  This is the second time the 5th DCA has certified this conflict between the DCAs and may finally result in a Florida Supreme Court decision in the near future.

Horowitz v. Horowitz: 2nd DCA, April 1, 2015

As there was not competent, substantial evidence establishing that wife was a victim of domestic violence or that she was in imminent danger of becoming a victim of domestic violence, the trail court's granting of an injunction was reversed.  An analysis of cyberstalking was provided and it was found that posts to Facebook did not constitute cyberstalking as posts were not directed at a specific person under Florida Statutes 784.048(1)(d).  Further, Husband's posts did not "tag" his Wife or mention her explicitly in any way.  While the Wife's assertion that her Facebook account was "hacked" was concerning, said behavior, even if true was not cyberstalking as it is not an electronic communication.  Wife did claim that the posts were a "matter of concern" and "prevented [her] from having any privacy within [her] own home.  However, said statements were conclusory and vague and not sufficient to show that she had been a victim of domestic violence.  Wife also failed to establish that she had a reasonable belief that she was in imminent danger of becoming a victim of domestic violence as the alleged past incidents of domestic violence occurred 15 years ago.

Business Valuation, Parent Coordinators and Bad E-Mails

MARCHECK v. MARCHECK: (2^nd DCA March 27, 2015)

While the trial court can consider, for calculation of income, any of the marital business’ net income regardless of how it was subsequently distributed (salary, reinvested into business, etc.) the court cannot hypothesize amounts, nor can gross incomes substitute for net incomes without more information.  In this case, trial court apparently relied on gross income and then further double counted part of this income.

WADE v. WADE: (3^rd DCA March 25, 2015)

Appellate Court found that trial court’s adjustments of the prior written notice requirements in the parties’ FCJ (Final Custody Judgment) were not modifications under the meaning of Florida Statutes 61.13(3).  The Court found that procedural aspects and logistics of transportation of children, and the consequences of non-compliance are ordinarily in the discretion of the trial judge and that, regardless of the parties’ ability to pay for full post-judgment modification, the Court did not have to hold a full modification trial to grant the relief requested.

 The case is most interesting for its instructions to the parties and their attorneys to avail themselves to the Parenting Coordinator provision of the judgment and a caution for the language utilized in their emails to one another.

Alimony, Violence and Recusal

Wolfson v. Wolfson: March 18, 2015: 3rd DCA
3rd DCA granted writ of prohibition.  Trial judge should have recused herself as the trial judge's comments indicated that she had prejudged the case.

Polcz v. Polcz: March 18, 2015: 4th DCA
Trial court's calculation and ultimate finding that no alimony arrears were owed appeared to be in error as it was not reflected by the application of math to the facts before the court.  Further, no other explanation was provided as to why a finding of no arrearages was entered by the court.

Hair v. Hair: March 18, 2015: 4th DCA
Injunction for protection against domestic violence was reversed.  Petitioner failed to present sufficient evidence that she was a victim of domestic violence or was in imminent danger of becoming such a victim.  The fact that the daughter did not want to see the mother and mother's violation of an order entered in the domestic relations case did not support the entry of the restraining order.