Case Law updates
Posted by Roy Smith on
Apr 28th 2017
Strawitch v. Strawitch: Fla 1st DCA, April 24, 2017:
Though granting of modification of child support was appropriate, when calculating the amount of father’s resulting overpayment, court erred in accepting father’s counsel’s figure for overpayment without evidence to support it.
Ziruolo v. Ziruolo: Fla 1st DCA, April 28, 2017:
Trial court erred in providing one parent with ultimate decision making authority with regards to health needs, school matters and other activities without providing a basis for this determination. Trial court erred by requiring one party to take on a marital debt due to his higher income. While an inequitable distribution can occur, the court must consider the factors under Florida Statutes 61.075(1)(a)-(j). Trial court also erred by not calculating child support pursuant to child support guidelines. Finally, due to the myriad of errors above, the attorney fee award had to be remanded for additional calculation with guidance that a critical factor for a trial court to consider in awarding fees is the financial situation of the parties after the dissolution proceeding has concluded.
Hanson v. Hanson: Fla 2nd DCA, April 28, 2017:
Trial court erred in basing alimony calculation on Husband’s gross income as opposed to his net income. However, 2nd DCA rejected Husband’s argument that the parties’ lifestyles had been considered inappropriately. Further, trial court did not abuse discretion in including SBP (Survivor Benefit Plan) coverage over and above her coverture amount in calculating her need for alimony. While the court could have determined that this was a voluntary expense incurred by the Wife, it was within the trial court’s discretion to consider the premium as part of Wife’s need. Finally, it was error to order Husband to pay additional attorney’s fees to Wife in addition to that which he already paid temporarily where the parties assets were equally divided and their incomes equalized through the alimony award.
Stephens v. Whittaker: Fla 5th DCA, April 28, 2017:
While it would have been preferred that the trial court explicitly listed the value of the marital home in the final judgment, as opposed to simply dividing the equity in the home, there was no error as calculation was correct. Further, while trial court erred in failing to place a value on the marital liability of the credit cards (and simply stated that the parties would take their respective credit card debt) Wife did not raise said issue on appeal. Finally, trial court did not err in denying alimony and attorney’s fees where the court noted that the parties agreed that there was no need and no ability for ongoing alimony payments or attorney’s fees.
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Posted by Roy Smith on
Apr 21st 2017
C.J.I-R v. C.M.: Fla 2nd DCA, April 19, 2017:
Trial court erred in a paternity case by using an improper figure for Father’s net income when calculating child support (the guideline used a tax liability which was not supported by any evidence provided).
Frezza v. Frezza: Fla. 2nd DCA, April 19, 2017:
Trial court’s decision was affirmed as there was no transcript and former wife, who brought appeal, failed to submit a statement of the evidence. However, case was remanded for clarification of attorney fee provision as one section called for fees to be paid by Wife but a separate section provided for the parties to pay their own fees. Otherwise, the judgment met all requirements under Rowe.
Wayne v. Einspar: Fla. 5th DCA, April 21, 2017:
Trial court should have listed, as marital liabilities in equitable distribution, the student loan of the parties’ child and a car loan for a vehicle belonging for the child as both were cosigned for by the parties prior to the petition for dissolution being filed. Further, the matter was remanded to determine credits for temporary alimony made during the pendency of the case.
Wilkerson v. Wilkerson: Fla. 5th DCA, April 21, 2017: FIRST IMPRESSION!!
Husband was not “blindsided” by Wife’s claim for child support. While Wife’s petition for dissolution did not include a claim for child support, her pretrial statement addressed the issue and Husband likewise responded to said claim. In a case of first impression, the 5th DCA held that a court can set an initial child support obligation by imputing income to an incarcerated parent. (aligning with the 4th DCA in McCall and conflicting with the 1st DCA in Llamas). The 5th DCA noted that an individual’s actions that lead to incarceration are voluntary for purposes of Florida Statutes 61.30 and that “[i]t would be inconsistent to allow an incarcerated parent’s child support obligation, which was set before incarceration, to continue to accrue until the parent’s release from prison, and yet not allow the trial court to initially set a minimum amount of child support for an individual already incarcerated.”
Interesting dissent by Justice Palmer.
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Posted by Roy Smith on
Apr 14th 2017
Martinez v. Martinez: Fla. 2nd DCA, April 5, 2017:
Where evidence that Wife’s need (in a 30 year marriage) exceeded the trial court’s award of alimony where Husband had ability to pay the articulated need, it was error to award less than the need as evidenced by Wife. It was improper to impute to Wife some additional form of income which was only speculative.
Sciame v. Sciame: Fla. 2nd DCA, April 5, 2017:
Trail court erred in ordering Former Husband to elect survivor benefits to secure the award of a portion of his pension to Wife. Adding such a provision in an enforcement proceeding was an effective modification of equitable distribution without authority.
Cook v. Cook: Fla. 2nd DCA, April 5, 2017:
Trial court erred by deny permanent alimony in 18 year marriage without including the statutory findings of facts to support the denial of alimony. Statement that”[t]here was no competent substantial evidence to support the wife’s request for alimony. The Court has reviewed the Wife’s alimony claim in accordance with Florida Statute 61.08” was insufficient.
Rodriguez v. Lorenzo: Fla. 3rd DCA, April 5, 2017:
Trial court’s ruling denying Wife of a short term marriage alimony was upheld. Further, Wife’s claim for “psychological damages” for acts which occurred after the entry of the final judgment were improper and court did not have jurisdiction to entertain such claims.
Fawcett v. Gainey: Fla 5th DCA, April 7, 2017:
Trial court erred in including Wife’s engagement ring in value of jewelry for equitable distribution as engagement rings a pre-marital property.
Noe v. Noe: Fla. 1st DCA, April 13, 2017:
Trial court did not err in denying a motion to dissolve and injunction for domestic violence. While Father may have demonstrated that the scenario underlying the injunction no longer existed, it did not mean that the Mother could not show that she reasonably maintained a fear of becoming a victim of domestic violence.
***Facts are horrible on this one. Click link to learn more.
Regan v. Regan: Fla. 4th DCA, April 12, 2017:
Husband, on appeal claimed that the reduction of his alimony from $9,000.00 (which was previously agreed to) a month to $7,800.00 a month was insufficient. He claimed that Wife should have had minimum wage imputed to her and that she be required to withdraw from her retirement to reduce alimony obligation. Trial court found that Wife’s steps to decrease her monthly need (by downsizing) was a basis for a reduction in alimony. However, trial court did not have to impute minimum wage to Wife when such earnings were not contemplated by the Marital Settlement Agreement. Further the Marital Settlement Agreement did not contemplate the use of retirement funds or income which could be derived from such funds a source of income for modification.
Brussot v. Brussot: Fla. 4th DCA, April 12, 2017:
Trial court erred in awarding property without providing written findings determining whether the property was a marital asset and making written findings valuing and equitably distributing the property.
Aranda v. Padilla: Fla. 4th DCA, April 12, 2017:
Trial court erred in paternity case by 1) awarding the mother sole parental responsibility without finding that shared parental responsibility would be detrimental to the child; 2) failing to address timesharing on holidays, special occasions, and school breaks; and 3) failing to consider the parties’ financial positions when denying father’s request that travel expenses be shared.
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