Case Law updates
Posted by Roy Smith on
Mar 14th 2016
Family Law Weekly Case Results
Molina v. Perez: (3rd DCA March 9, 2016):
Trial judge should have disqualified herself. The allegations of a motion for disqualification must be assumed to be true and the statements of the judge should be weighed based on the reasonable effect on the party seeking disqualification, not the subjective intent of the judge.
Marquez v. Lopez: (4th DCA March 9, 2016):
The trial record was incomplete and the Final Judgment failed to contain the necessary findings a to several issues. It was unclear if the timesharing plan for the children was decided by the court or pursuant to agreement. Regardless, the court had the responsibility to articulate a minimum finding that the timesharing (whether agreed to, or not) was in the best interests of the child. The trial court also simply awarded the parties the property in their respective possession but did not complete an equitable distribution schedule. While this is allowed when to evidence is presented as to valuation, the trial court, in this case did have evidence of value of certain assets as a trial court may rely on one spouse’s testimony where neither presents expert testimony. The child support order was also inaccurate as it did not take into consideration wife’s payroll deductions when calculating her net income.
Farghali v. Farghali: (4th DCA March 9, 2016):
The 4th DCA formally adopted the rule set forth in Simmons v. Simmons, 979 So. 2d 1063 (Fla 1st DCA 2008) that “a party is not entitled to complain that a judgment in a marital and family law case fails to contain sufficient findings unless that party raised the omission before the trial court in a motion for rehearing.” In this case there was no motion for rehearing and no trial transcript to facilitate a review of the decision below.
Husband attempted to challenge the trial court amendment of a QDRO (Qualified Domestic Relations Order) claiming that the court lost jurisdiction after the final judgment was entered and the case was on appeal. However, the trial court’s amendment did not materially change the original judgment and only modified terminology of the transfer. While this was not error, the appellate court pointed out that the order was still ambiguous and therefore the QDRO could not be utilized. Instead, the issue was remanded to the court for a different solution. The 4th DCA suggested an order wherein Husband would simply need to pay Wife half of his monthly pension benefits upon receipt would be a possibility. The appellate court noted that a lump sum calculation, under these facts, would be inherently speculative and unfair to one of the parties. The trial court also erred by ordering that equitable distribution would be enforceable through contempt power.
Longarzo v. Castillo: (4th DCA March 9, 2016):
Trial court’s dismissal of former wife’s petition to modify custody, timesharing, and child support based on wife’s “unclean hands” in failing to purge a contempt order entered years earlier was improper as trial court did not hold an evidentiary hearing as to wife’s present ability to purge the contempt. Although wife had ability to pay when contempt order was entered, it is the present ability to pay that must be considered in determining whether the doctrine of “unclean hands” should be applied.
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Posted by Roy Smith on
Mar 07th 2016
Family Law Opinions & Appeals | Florida Courts
Widow who believed that deceased husband gave gifts to his former wife thus violating the widow’s post-nuptial agreement with her deceased husband sought information regarding the former wife’s banking accounts. Third DCA blocked the discovery as the widow had full access to her deceased husband’s banking accounts and therefore could discern from that documentation whether payments were made. Further, there had yet to be determination that widow was entitled to an accounting of the deceased husband’s estate or whether she would be entitled to recovery from former wife even if her allegations proved to be true.
Annulment of marriage of ward who was previously declared incompetent was upheld. Ward did not have right to marry without court approval and said approval was not secured. The court did not have the power to approve the marriage after the fact. Instead, the right to marry had to be approved prior to the marriage. However, the case is very interesting for its detailed dissent stressing the fundamental right to marriage protected by the United States Constitution.
On remand, trial court found that Wife was entitled to only $88.50 a month as her marital portion of the husband’s pension. The trial court found this amount to be de minimus, and based on other aspects of the divorce (such as wife receiving support for the three years it took to litigate the dissolution) did not award this portion of the pension in equitable distribution. The 5th DCA rejected the finding that that $88.50 a month was de minimum (especially in wife’s perspective) and that the amount should have been allowed as part of equitable distribution.
Order for psycho-sexual evaluation of Father that was allegedly essential to enable the court to adequately direct Father’s contact with children was remanded for further findings. There was no court reporter, and given the lack of findings in the order, good cause was not explained and the fact that father’s mental condition was in controversy was not evident from the appellate record. Further, the scope of the order was too broad as it did not specifically indicate the length of the examination, the type of testing, or whether the testing would be limited to methods routine to the profession.
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Posted by Roy Smith on
Feb 29th 2016
Once a trial court appoints a magistrate to take testimony and make findings, it loses the prerogative of substituting its judgment for that of the magistrate. The trial court erred in overturning the findings of the magistrate because competent, substantial evidence supported the magistrate's findings, including the income it imputed to the former husband based on the former wife's unrelated testimony regarding his historical earnings.
Mother's apparent gamesmanship lead the 3rd DCA to ignore the lower court's administrative order as not being in the best interests of the children. Very specific fact pattern but a case to keep in mind when administrative orders would yield inequitable results.
When Husband failed to respond to petition or to discovery and court entered default against Husband, it did not remove obligation of the court to include the individual valuation of significant assets and an explanation of distribution in its final judgment.
Trial courts's judgment granting modification of parenting plan which did not include the terms of new parenting plan was reversed. The judgment set forth time-sharing in only general terms. The 5th DCA rejected arguments that such general language was a scrivener's error. 61.12(2)(b) provides that a parenting plan must include certain specificity. For example, awarding the mother every other weekend does not specify when the weekend starts and stops. It is in the best interests of the child, the parties, and the court to include such specifics to minimize future litigation.
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