Case Law updates

The Smith Family Law Florida Case Law Update: Week of April 23, 2018

Preudhomme v. Preudhomme: Fla 1st DCA, May 3, 2018.

Trial court erred in ruling that timesharing would be rotating (50/50) until the child reached school age at which point the child would be with one parent the majority of the time (as the parents lived in different states).  Such a determination was prohibited prospective-based analysis.  The trial court was ordered to remove the portion of the order relating to the future events (starting of school).

Quillen v. Quillen: Fla 1st DCA, May 3, 2018.

Trial court erred in granting a motion to dismiss former wife’s petition for modification and motion for contempt.  First, it was improper to utilize a motion to dismiss as a vehicle to address the motion for contempt.  Second, there existed a latent ambiguity in the parties’ agreement with regards to alimony and child support set-off to require an evidentiary hearing and parol evidence to resolve the intent of the parties.

Morris v. Morris: Fla 1st DCA, April 30, 2018.

Trial court erred in using the best interest of the child standard to grant temporary custody to step-parent (widower) over father as preference to the natural parents prevails despite the fact third persons are capable and willing to provide better care unless there is sufficient proof to establish parental unfitness or substantial threat of significant and demonstrable harm to the child.  

De La Piedra v. De La Piedra: Fla 1st DCA, April 25, 2018.

Trial court erred in its determination of temporary alimony as there was not sufficient evidence to find an ability to pay.  Further, the temporary child support award did not take into consideration the award of temporary alimony or in-kind alimony.  Finally, the award of temporary attorney’s fees had to be revisited given that the alimony and child support calculations would ultimately impact need and ability to pay.

Overstreet v. Overstreet: Fla 1st DCA, April 25, 2018.  CASE OF FIRST IMPRESSION!!!

Florida Statutes 61.13002(2) which allows a military servicemember to designate a family member to exercise that parent’s time sharing while the servicemember is under temporary assignment orders to relocate away from the child does not apply to permanent change of station.  (1st DCA in case of first impression found that legislature used the term “temporarily assigned” to mean a duty assignment of up to six months away from the member’s permanent duty station that provides for the member’s next duty assignment, whether that be resuming duty at the former PDS, beginning duty at a new PDS, or further temporary duty.). **Note, the court did not need to address the issue of the constitutionality of the statute under the circumstances.

SMITH FAMILY FLORIDA CASE LAW UPDATE: Week of March 26, 2018

The Smith Family Law Florida Case Law Update: Week of March 26, 2018.

HAPPY EASTER!

Harris v. Harris: Fla 5^th DCA, March 29, 2018:

A party cannot complain of inadequate findings on appeal unless the alleged defect was raised in a motion for rehearing.

Crespo v. Lebron: Fla 5^th DCA, March 29, 2018:

While business loss (gross receipts minus ordinary and necessary expenses required to produce income) can be utilized to decrease income for calculation of support it cannot be based on conclusory testimony, but instead, must be established through competent, substantial evidence.

Zarudny v. Zarudny: Fla. 3^rd DCA, March 28, 2018:

Trial court properly entered permanent injunction based on domestic violence.  Although separate findings as to each factor in section 61.13(3) are not required to sustain a temporary award of temporary timesharing, the record or the final judgment must reflect that the custody determination was made in the best interest of the child.  Here, the trial court’s award of temporary 100% timesharing with Mother (with supervised timesharing with Father) under the circumstances was supported.

SMITH FAMILY FLORIDA CASE LAW UPDATE: Week of March 19, 2018:

Gimonge v. Gimonge: Fla 5^th DCA, March 23, 2018:

While Mother’s initial move to Michigan after filing for dissolution in Florida was improper and in violation of Florida Statutes 61.13001, Father’s stipulation to a contact schedule (with Mother in Michigan), under the facts, constituted an agreement for temporary relocation as contemplated by section (2) of the same statute.  Thus, the trial court properly granted Mother’s Emergency Pick-up motion when Father would not return the child after summer break.