Family Law Updates

Smith Family Law Case Law Update: Week of October 23, 2017

Duncan v. Brickman: Florida 2nd DCA, October 25, 2017:
A simply disastrous case from the stand point of delays in magistrate reports and orders. The result was overlapping rulings that negated one another. However, as a matter of law, a trial court cannot modify a custody order as a sanction for contempt. Further, the contempt order itself, rendered three years after the underlying evidentiary hearing cannot stand as a matter of judicial discretion (which is the typical deference given to trial courts with regard to contempt orders).

West v. West: Florida 5th DCA, October 27, 2017:
Trial court adoption one party’s proposed final judgment was error. In this case the court did not allow closing arguments but simply had the party’s submit proposed final judgments. While doing so is not uncommon, it was uncommon for husband to submit his proposed final judgment without copying wife. This did not allow her to make corrections or objections. Further, as the court did not make any oral rulings or findings, the simple adoption of one party’s judgment without any alteration when the final judgment had portions not supported by evidence was enough to remand for a completely new final judgment.

Smith Family Law Update: Week of October 16, 2017

Hodge v. Hodge: Florida 5^th DCA, October 20, 2017:

On a second appeal, the 5th DCA found that the trial court again misapplied the Kaaa factors when determining the marital value of a premarital property.  As such, Wife's share in the property would increase and the investment income from said asset would also necessarily increase requiring a recalculation of alimony for wife.

Lovejoy v. Poole: Florida 5^th DCA, October 20, 2017:

Trial court's reliance on Pyne v. Black to dismiss a motion to enforce child support was error.  Trial court's denial of standing based on Pyne ignored that the only standing issue in Pyne dealt with post-majority child support.  Further, the trial court, unlike in Pyne, did not allow an evidentiary hearing before dismissing the motion.

Smith v. Smith: Florida 4^th DCA, October 18, 2017:

Remand from the Florida Supreme Court which noted that although the marriage was invalid as it stood the parties are not foreclosed from seeking court approval in further proceedings.

Fuller v. Sandler: Florida 3^rd DCA, October 18, 2017:

"Stay away" orders are not appealable as they are nonfinal orders pending an evidentiary hearing for injunction.

Scudder v. Scudder: Florida 2^nd DCA, October 20, 2017:

While Wife's challenge of Final Judgment of Dissolution adopting Marital Settlement Agreement, and Parenting Plan that she agreed to may ultimately be successful based upon both parties essentially lying to the Florida court so that the Florida court could initially take jurisdiction (as subject matter jurisdiction cannot be conferred by waiver, acquiescence, or agreement of the parties), the issue had to be remanded to the lower court as an evidentiary hearing had not yet been held on the matter.

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.