Case Law updates

SMITH FAMILY FLORIDA CASE LAW UPDATE:  Week of March 12, 2018:

The Smith Family Law Florida Case Law Update: Week of March 12, 2018.

HAPPY ST. PATRICK’S DAY!!!

Erlinger v. Federico: Fla 1^st DCA, March 15, 2018:

Detailed discussion of disqualification.  Wife’s request for disqualification of judge was properly denied even where court allegedly (1) interrupted cross examination and made comments such as “you do what you want”, (2) loudly sighed and shook head during testimony, (3) interrupted opposing counsel’s questioning of wife to question and comment on testimony of wife.  While a judge may not prejudge a case, a judge can form mental impressions and opinions during an evidentiary hearing.  Subjective fears regarding non-verbal expressions are not grounds for disqualification.  Adverse rulings without more are not legally sufficient grounds for disqualification.

Subramanian v. Subramanian: Fla 4^th DCA, March 14, 2018:

While the trial court properly set forth the specific steps the former husband must take to reestablish timesharing and it was within its discretion to condition increased timesharing on the successful completion of parenting course and therapy, the trial court erred in delegating authority to determine visitation to therapists and the guardian ad litem.  Further, court erred in equitably distributing loans/liabilities incurred after the filing of the petition for dissolution.

Lamorte v. Testoni: Fla 4^th DCA, March 14, 2018:

While Mother did not preserve the issue of child support continuing for special needs child past the age of majority for purposes of appeal, Mother has not waived this argument as Mother may seek a modification on the basis that Florida Statutes 743.07(2) applies.

Hedden v. Hedden: Fla 5^th DCA, March 16, 2018:

Trial court erred in awarding permanent alimony of $1,000.00 a month and durational alimony of $2,700.00 a month until Wife reached age of sixty-two and received Social Security benefits.  While permanent periodic alimony and durational alimony may be awarded together if justified, here it was clear that permanent periodic alimony was justified and court erred in taking into consideration future Social Security benefits as alimony awards must be based on “current existing circumstances, and not on possibilities likely but as of yet unrealized.”

Carter v. Carter: Fla 5^th DCA, March 16, 2018:

Former Husband was not entitled to relief from contempt order entered against him as the trial court held a simultaneous evidentiary hearing on Former Wife’s motion for contempt and Former Husband’s motion for temporary reduction or termination of alimony (which contained the same allegations and grounds included in his amended supplemental petition).  While trial court did mention Former Husband’s ability to use credit cards to pay purge amount, the trial court nevertheless did not err as it found that Former Husband had actual assets sufficient to pay the purge amount.  Former Husband’s argument that his due process rights were violated for failure of the notice of hearing to have language from Florida Family Law Rule of Procedure 12.615(b) was rejected as Former Husband attended the hearing and therefore no adverse effects were suffered.

SMITH FAMILY CASE LAW UPDATE: Week of March 5, 2018:

Jones v. Jones: Fla. 1st DCA, March 8, 2018:

Where husband partially liquidated a marital asset (Thrift Savings Plan) during the pendency of the dissolution but testified the money was used to pay marital debts as well personal expenses during the pendency of litigation the trial courted erred in equitably distributing the account value prior to liquidation without providing a specific finding of misconduct.

Albassam v. Klob: Fla 4th DCA, March 7, 2018:

Husband was prevented from raising a 1.540 motion (relief from judgment motion) with regards to his 2014 dissolution of marriage judgment as he claimed wife’s 2000 Jordanian divorce was invalid. The 4th DCA found it was within the trial court’s discretion to find that to allow otherwise would be inequitable. Interesting dissent.

SMITH FAMILY FLORIDA CASE LAW REVIEW: Week of February 19, 2018:

Eberhart v. Eberhart : Fla. 1st DCA, February 23, 2018:

1st DCA found that trial court's interpretation of "imprecise language" in a consent judgment was incorrect. Husband and Wife agreed that Husband would get "a one-half share of the marital portion" of the Wife's pension. The agreement then had parenthetical guidance stating "marital portion means the date of marriage to the date of this Final Judgment." The marital portion includes all retirement benefits accumulated from the date of the marriage until the final judgment was entered. If the wife stopped accruing benefits when she retired in 2004, then that is when the marital portion was set, even if the marriage lasted years longer.

Brooks v. Brooks : Fla. 1st DCA, February 23, 2018:

1st DCA quashed some medical and psychiatric records requests from third parties in case involving "child custody." While the mental health of a parent is a factor to be considered this does not waive the statutory psychotherapist-patient privilege. Mere allegations of mental or emotional instability cannot overcome this privilege. The privilege can be involuntarily waived under "extreme circumstances." Medical records must also be relevant to the present ability to parent. Further, the trial courts must conduct an in-camera inspection of the records to prevent improper overbroad disclosures.

Perez v. Perez : Fla. 5th DCA, February 23, 2018:

Alimony award was remanded for further findings as the trial court did not explain how it reached its conclusions, including its calculation of Husband's income. Further, even though son, who had been deeded marital properties during the marriage, testified that he would return the properties to his parents if they needed the properties, the court erred in distributing the non-marital properties (as they had been deeded to the son) to the parties. Even if the trial court simply considered the value of the property deeded to the son when arriving at its equitable distribution it erred because it made no finding of fraud, waste or dissipation on part of Husband.

Stufft v. Stufft : Fla. 5th DCA, February 23, 2018:

Trial court erred by entering a final judgment that indicated Husband's equitable distribution payments to Wife would be treated as support and enforceable by contempt. Trial court also erred in failing to distribute the parties' federal income tax liability.

Pitcher v. Schneider : Fla. 5th DCA, February 23, 2018:

Father's attempt to appeal a timesharing determination in an establishment of paternity case was without merit and there was no transcript. Further, the 5th DCA praised the completeness and excellence of the trial judge's judgment.