Case Law updates

Smith Family Law Florida Case Law Update: Week of December 4, 2017

Dennis v. Dennis, Fla 1st DCA, December 7, 2017:
Trial court’s refusal to allow attorney’s fees on a contempt motion for actual failure to pay alimony because the court “did not find Former Husband to be in contempt, and declines to award attorney’s fees and costs” was insufficient as there was no hearing on the issue of fees and no findings regarding the financial situation of the parties. Matter was remanded for the court to consider these issues.

Dogoda v. Dogoda, Fla 2nd DCA, December 6, 2017:
Trial court erred in denying modification of alimony based on changes in circumstances occurring before entry of Final Judgment but AFTER signing of Marital Settlement Agreement. In cases involving a marital settlement agreement the effective date of the agreement establishes the date to which a trial court should look in determining whether a substantial change in circumstances was contemplated by the parties (especially in cases such as this where there is a long delay).

Smith Family Law Case Law Update: Week of October 23, 2017

Duncan v. Brickman: Florida 2nd DCA, October 25, 2017:
A simply disastrous case from the stand point of delays in magistrate reports and orders. The result was overlapping rulings that negated one another. However, as a matter of law, a trial court cannot modify a custody order as a sanction for contempt. Further, the contempt order itself, rendered three years after the underlying evidentiary hearing cannot stand as a matter of judicial discretion (which is the typical deference given to trial courts with regard to contempt orders).

West v. West: Florida 5th DCA, October 27, 2017:
Trial court adoption one party’s proposed final judgment was error. In this case the court did not allow closing arguments but simply had the party’s submit proposed final judgments. While doing so is not uncommon, it was uncommon for husband to submit his proposed final judgment without copying wife. This did not allow her to make corrections or objections. Further, as the court did not make any oral rulings or findings, the simple adoption of one party’s judgment without any alteration when the final judgment had portions not supported by evidence was enough to remand for a completely new final judgment.

Smith Family Law Update: Week of October 16, 2017

Hodge v. Hodge: Florida 5^th DCA, October 20, 2017:

On a second appeal, the 5th DCA found that the trial court again misapplied the Kaaa factors when determining the marital value of a premarital property.  As such, Wife's share in the property would increase and the investment income from said asset would also necessarily increase requiring a recalculation of alimony for wife.

Lovejoy v. Poole: Florida 5^th DCA, October 20, 2017:

Trial court's reliance on Pyne v. Black to dismiss a motion to enforce child support was error.  Trial court's denial of standing based on Pyne ignored that the only standing issue in Pyne dealt with post-majority child support.  Further, the trial court, unlike in Pyne, did not allow an evidentiary hearing before dismissing the motion.

Smith v. Smith: Florida 4^th DCA, October 18, 2017:

Remand from the Florida Supreme Court which noted that although the marriage was invalid as it stood the parties are not foreclosed from seeking court approval in further proceedings.

Fuller v. Sandler: Florida 3^rd DCA, October 18, 2017:

"Stay away" orders are not appealable as they are nonfinal orders pending an evidentiary hearing for injunction.

Scudder v. Scudder: Florida 2^nd DCA, October 20, 2017:

While Wife's challenge of Final Judgment of Dissolution adopting Marital Settlement Agreement, and Parenting Plan that she agreed to may ultimately be successful based upon both parties essentially lying to the Florida court so that the Florida court could initially take jurisdiction (as subject matter jurisdiction cannot be conferred by waiver, acquiescence, or agreement of the parties), the issue had to be remanded to the lower court as an evidentiary hearing had not yet been held on the matter.