Family Law Updates

The Smith Family Law Florida Case Law Update: Week of January 1, 2018

The Smith Family Law Florida Case Law Update: Week of January 1, 2018.

HAPPY NEW YEAR!!!

Robinson v. Robinson: Fla. 1st DCA, January 3, 2018:

Trial court’s denial of former husband’s motion to set aside mediated settlement agreement and judgment adopting agreement was upheld. Former Wife utilized her possession of pictures of former husband to coerce agreement. However, former husband’s claim for intrinsic fraud had to be brought within one year (former husband waited 2 ½ years). Trial court result was correct and therefore upheld under “tipsy coachman” rule even though the basis it utilized (a venue issue) was incorrect.

D.O.R. v. Augustin: Fla. 3rd DCA, January 3, 2018:

Lower court’s order disestablishing paternity was reversed. Legal father provided evidence of a paternity test showing he was not the father. Paternity was established in 2013. Father testified that he began doubting paternity in 2009 after the DNA test. However Florida Statutes 742.18 requires the satisfaction of seven factors including “newly discovered evidence relating to the paternity of the child [that] has come to the petitioner’s knowledge since the initial paternity determination” and that a scientific test to show probability of paternity was properly conducted.

Arancibia v. Castillo: Fla 3rd DCA, January 3, 2018:

Lower court had jurisdiction to vacate order of dismissal for lack of prosecution that was incorrectly entered. The dismissal did not divest the lower court of jurisdiction to correct its error by vacating the order.

McNulty v. Bowser: Fla. 5th DCA, January 5, 2018: (IMPORTANT! Change in precedent.)

The 5th DCA chose to recede from its opinion in Starkey v. Linn (which provided that Florida Statute 742.045 does not authorize or allow an award of appellate attorney’s fees in paternity actions) finding that a party could be entitled to such appellate fees under the statute if the party can establish need and the other party’s ability to pay.

Smith Family Case Law Update: Week of December 18, 2017:

Brunsman v. Brunsman, 5th DCA, December 22, 2017:

Trial court's award of non-modifiable alimony was in error. Florida Statutes Section 61.08(7) requires durational alimony to be modifiable absent an agreement by the parties to the contrary or exceptional circumstances. Trial court also erred in using gross income as opposed to net income in calculating the amount of child support. Further, court erred in requiring life insurance to secure the alimony without a finding as to cost, the amount required, and special circumstances justifying it.

Akin v. Jacobs, 5th DCA, December 22, 2017:

An injunction based on stalking under Florida Statutes 784.0485 requires a willfully, maliciously, and repeated following, harassing (engaging in a course of conduct directed at a specific person which causes substantial emotional distress based on a reasonable person standard to and serves no legitimate purpose), or cyberstalking of another person. In this case, nothing in the petition alleged following or cyberstalking. Further no testimony was provided as to emotional distress. Further still all of the evidence submitted was inadmissible hearsay or subject to objection based on the best evidence rule. Concurring opinion indicates that injunction may have been proper if the letters at issue had actually been submitted into evidence. Concurring opinion also points out that a trial judge should serve as a neutral arbiter in proceedings. In this case the trial court seemed to cross that line and thus aided the pro se litigant beyond "clearing up issues" or assisting in helping the pro se litigant understand the process.

Reidy v. Reidy, 4th DCA, December 20, 2017:

After the trial judge entered a Final Order of Dissolution of Marriage denying former wife request for alimony and attorney's fees, the trial judge granted former wife's motion for disqualification and the case was assigned to another judge. The new judge then awarded temporary alimony and attorney fees based on need and ability to pay. The court refused to hear former husband's allegations of former wife's frivolous litigation (which had been a main theme in the underlying case). Further, no evidence was presented as to the need for attorney's fees to protect former wife's interests in the appeal or former wife's access to assets given to her in the equitable distribution.

Where a trial court has rejected a claim for alimony after a full trial an award of temporary alimony pending appeal is permitted in very narrow circumstances. Florida Statutes 61.071 does not address post dissolution temporary alimony awards. Florida Statutes 61.16(1) discusses attorney's fees but not alimony. Florida Rule of Appellate Procedure 9.600(c)(1) is interpreted as allowing for temporary alimony during an appeal even when alimony was denied by the trial court if the alimony is necessary to protect the welfare and rights of the party pending appeal (such as the alimony award being inextricably intertwined with an equitable distribution, the benefits of which will be delayed until resolution of the appeal.). 

Ivko v. Ger, 3rd DCA, December 20, 2017:

Transfer of child support action to state of Pennsylvania was improper where both parties did not agree and where the mother and children now lived in Pennsylvania but the father lived in Florida. Section 88.2051 of the UIFSA mandates that a tribunal that has issued a child support order retains continuing, exclusive jurisdiction to modify its order where the state remains the residence of either the obligor or obligee, or remains the residence of the child unless all parties have filed written consents for a tribunal of another state to modify the order and assume continuing exclusive jurisdiction. A circuit court retains continuing exclusive jurisdiction to modify its custody orders, including visitation privileges, until such time as the minor children reach the age of majority or the court expressly determines some other basis that jurisdiction is no longer appropriate until virtually all contacts with Florida have ceased.

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).