Case Law updates
Posted by Roy Smith on
Feb 24th 2017
FLORIDA FAMILY LAW UPDATE: Week of February 20, 2017
Trial court properly calculated wife’s income. Courts must include reimbursed expenses or in kind payments to the extent that they reduce living expenses when calculating income of a party. Therefore, the amount husband agreed to pay for the mortgage on the formal marital home, where wife lived and the in kind contribution by wife’s mother to wife’s cell phone bill was properly included as income. Further, trial court’s imputation of part time work was also proper under the circumstances as wife was voluntarily unemployed.
Trial court’s disqualification of attorney representing wife from entire case was too broad. Opposing counsel had set the deposition of counsel for wife and wife’s counsel failed to appear. Instead, trial court should have compelled the deposition to allow discovery on the counsel’s involvement in the underlying dissolution of marriage case and then considered the issue of possible disqualification.
Trial court order finding contempt for failure to pay alimony was deficient on its face as there was no finding of present ability to pay support.
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Posted by Roy Smith on
Feb 13th 2017
Family Law Firm Case Results
Ard v. Ard: 1st DCA: February 10, 2017:
Award for temporary support was reversed. While court has broad discretion with regards to temporary support the movant needs competent and substantial evidence of need and ability to pay. In this case, Wife based her needs on “future” needs when she moved from her mother’s home (where she was living rent free). No evidence was presented as to when, or if, Wife was going to move.
Stokes v. Stokes: 2nd DCA: February 8, 2017:
Trial court’s two orders, one on modification of final judgment and one on modification of parenting plan were supported by competent evidence and included proper findings. However, they conflicted in part and therefore was remanded for clarification.
Ryans v. Bell: 2nd DCA: February 10, 2017:
Adoption of Mother’s proposed final judgment in paternity case did not constitute a "substitute for a thoughtful and independent analysis of the facts, issues, and law by the trial judge" however court did err in not taking into consideration Father’s payment of child’s health insurance when calculating his income for child support purposes.
Zapiola v. Kordecki: 2nd DCA: February 10, 2017:
While a single incident of violence can support a claim for domestic violence, the trial court’s reliance of an event that occurred in 2012 (years before) was insufficient without allegations of more recent events. Petitioner’s allegations that she has fearful based on communications from Respondent were not supported. Further, “generalized threats to engage in unpleasant, but not violent, behavior are not sufficient to support the issuance of a domestic violence injunction.”
Garcia-Lawson v. Lawson: 4th DCA: February 8, 2017:
Trial court erred by awarding, as a sanction, the former husband an equitable lien upon her equitable distribution interest in the former husband’s retirement benefits, as a remedy for the former wife’s failure to make an equalization payment.
Garcia-Lawson v. Lawson (2): 4th DCA: February 8, 2017:
It was proper to deny child support claim made by Wife for a child who reached the age of majority 3 years before the petition was filed. “In an initial determination of child support…the court has discretion to award child support retroactive to the date when the parents did not reside together in the same household with the child, not to exceed a period of 24 months proceeding the filing of the petition, regardless of whether that date precedes the filing of the petition.”
Duke v. Duke: 5th DCA: February 10, 2017:
While there was no transcript of the trial, the Court’s determination of alimony, attorney’s fees, requirement to maintain life insurance to secure support and the ultimate parenting plan were reversed and remanded as error was clear on the face of trial court’s order. The trial court failed to impute to Wife the interest that could be earned from her half of sizable asset (1.2 million dollar deferred retirement account) which was distributed in the judgment when determining her need for alimony.
As to attorney’s fees, trial court order failed to make a finding of the reasonable amount of hours and the reasonable rate of Wife’s attorney when calculating the attorney fee award.
As to the requirement to carry life insurance to secure support, the judgment failed to “make specific evidentiary findings regarding the availability and cost of insurance, the obligor’s ability to pay, and the special circumstances that warrant the requirement for security of the obligation.”
The parenting plan was found to be insufficient for failure to list all determinations under Florida Statutes 61.13(2)(b).
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Posted by Roy Smith on
Apr 29th 2016
Case Results from the Smith Family Law Firm
Mills v. Mills: 5th DCA (April 29, 2016): Where Husband forged signature of Wife on a loan and Wife had no knowledge of a loan made during the marriage, the loan should be considered non-marital debt of Husband where Wife never subsequently ratified the liability.
Turk v. Turk: 4th DCA (April 27, 2016): Trial court was incorrect in finding Father in contempt for violating terms of timesharing agreement where Father’s behavior did not violate the letter of the timesharing arrangement. A person cannot be held in contempt for failure to comply with something a judicial order does not say.
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