Case Law updates

Smith Family Law Firm Update: Week of October 9, 2017

Dukes v. Griffin: 1st DCA, October 11, 2017:
While districts have required trial courts to set forth specific steps and requirements by which a parent can restore reduced time-sharing and eliminate time-sharing restrictions the 1st DCA finds no statutory basis for such a requirement.

Brock v. Brock: 1st DCA, October 11, 2017:
A trial court's adoption of a party's proposed final judgment is not evidence that it resulted in a substitute for the court's thoughtful and independent analysis of the facts, issues, and law.

Betts v. Betts: 2nd DCA, October 13, 2017:
A dollar-for-dollar equitable credit to the former husband for the contributions he made to the mortgage of a martial property was improper as when marital assets are used during the marriage to reduce the mortgage on property, the increase in equity is a martial asset subject o equitable distribution.

Goodman v. Goodman: 2nd DCA, October 13, 2017:
Trial court erred in failing to make findings that supported its treatment of stock options awarded to Husband as a source of income and marital assets (if a trial court treats a stock option as an asset it cannot also treat the same option as income for calculating child support). The trial court also failed to include wife;s trust income as income for child support purposes,

Broga v. Broga: 1st DCA, October 11, 2017:
Trial court improperly imputed income to Husband where no evidence was shown that he could actually earn said income. As the award of attorneys fees was based on the same faulty calculation, the issue was also remanded for further determination by court.

Smith Family Law Update: Week of October 2, 2017

Perkins v. Simmonds: 4th DCA, October 4, 2017: The presumption of paternity to the husband of the mother is not absolute. In this case it was uncontested that putative father was the father, the child was given the putative father's last name, mother had represented she was getting a divorce when she had the child, putative father financially supported the child, and putative father had a strong parent/child bond with the child. Therefore the trial court erred in granting mother's motion to dismiss simply because she was in an intact marriage at the time of the birth of the child.

Schroll v. Schroll: 1st DCA, October 6, 2017: A trial court may award a nominal award of permanent alimony to a spouse who has a clear need for permanent alimony but the other spouse does not have a current ability to pay. However, in this case the trial court awarded wife $1,200,000 in assets and originally held that alimony was not necessary. On rehearing the trial court awarded the nominal alimony without an explanation. Therefore, the issue of nominal permanent periodic alimony was remanded for further explanation. Trial court erred in valuing certain accounts as of date of filing as evidence showed the husband had utilized the accounts to pay for marital expenses during the dissolution including living expenses, attorney's fees and costs, new vehicles for both parties, moving expenses, and paying off the mortgage on the former marital residence before it sold. Issue of valuation of retirement accounts was remanded for explanation as to why valuation of said accounts was tied to date of filing when evidence showed that the accounts had fallen significantly in value based on passive market factors.

Frost v. Frost: 1st DCA, October 6, 2017: Former Wife did not preserve the issue of whether the trial court abused its discretion by not setting forth the steps the former wife must take to restore unsupervised visitation with the minor child. Former wife could have filed a motion for rehearing but she failed to do so nor did she take any other steps to address the issue.

Smith Family Law Update: Week of May 1, 2017

Robinson v. Robinson: Fla 1st DCA, May 5, 2017:
Husband’s argument that trial court should have reduced support more than it did was mooted by the heavier burden resting upon a movant seeking reduction when the parties agreed upon original agreement. However, trial court erred in requiring payments be made through State Disbursement Unit when neither party requested such relief.

Gotro v. Gotro: Fla 1st DCA, May 5, 2017:
In general, it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceeding unless a party’s misconduct during the proceedings resulted in dissipation. This must be supported by a specific finding of intentional misconduct such as use for a party’s own benefit unrelated to the marriage. In this case, the trial court erred by essentially punishing Husband even though the money utilized was for marital expenses including wife’s temporary alimony, temporary fees and a majority of the marital expenses. As equitable distribution had to be recalculated, alimony had to be recalculated (although court noted that the 39 year marriage created a presumption for permanent alimony). Further, trail court has discretion to order life insurance to secure alimony but needs to list the special circumstances supporting such insurance.

Hua v. Tsung: Fla 4th DCA, May 3, 2017:
Trial court erred by not making an explicit finding as to Husband’s ability to pay alimony and failing to note or address the presumption of permanent alimony in this long term marriage and indicating why it was not awarded. Trial court was directed that if it still ordered conditional alimony the trial court would still need to set forth an alternative alimony option if the condition was not met. Trial court also erred in classifying business shares as non-marital. Husband’s Father converted ownership of his shares in a company to Husband during the marriage. Husband’s Father intended to bequeath the shares to son upon his death, but transferred ownership during life to avoid taxes. Their wish to circumvent foreign tax obligations by placing ownership of the stock in Husband’s name, yet circumvent Florida’s equitable distribution scheme by arguing the assets were actually still Husband’s Father’s was not persuasive. Trial court also erred in ordering that the proceeds from the sale of property would be split after a loan was repaid from the proceeds of the sale. Even though the loan was for the purposes of buying the property, the court could not convert an unsecured creditor to the status of a secured creditor.

Isnord v. Isnord: Fla. 4th DCA, May 3, 2017:
Trial court did not abuse discretion in dismissing paternity action due to petitioner’s failure to serve a petition for paternity within 120 days of filing. While service by publication could be utilized where the whereabouts of the other party are not known, the petitioner did not attempt to do so before the expiration of the 120 day period.