Family Law Updates

Smith Family Law Update: Week of October 2, 2017

Perkins v. Simmonds: 4th DCA, October 4, 2017: The presumption of paternity to the husband of the mother is not absolute. In this case it was uncontested that putative father was the father, the child was given the putative father's last name, mother had represented she was getting a divorce when she had the child, putative father financially supported the child, and putative father had a strong parent/child bond with the child. Therefore the trial court erred in granting mother's motion to dismiss simply because she was in an intact marriage at the time of the birth of the child.

Schroll v. Schroll: 1st DCA, October 6, 2017: A trial court may award a nominal award of permanent alimony to a spouse who has a clear need for permanent alimony but the other spouse does not have a current ability to pay. However, in this case the trial court awarded wife $1,200,000 in assets and originally held that alimony was not necessary. On rehearing the trial court awarded the nominal alimony without an explanation. Therefore, the issue of nominal permanent periodic alimony was remanded for further explanation. Trial court erred in valuing certain accounts as of date of filing as evidence showed the husband had utilized the accounts to pay for marital expenses during the dissolution including living expenses, attorney's fees and costs, new vehicles for both parties, moving expenses, and paying off the mortgage on the former marital residence before it sold. Issue of valuation of retirement accounts was remanded for explanation as to why valuation of said accounts was tied to date of filing when evidence showed that the accounts had fallen significantly in value based on passive market factors.

Frost v. Frost: 1st DCA, October 6, 2017: Former Wife did not preserve the issue of whether the trial court abused its discretion by not setting forth the steps the former wife must take to restore unsupervised visitation with the minor child. Former wife could have filed a motion for rehearing but she failed to do so nor did she take any other steps to address the issue.

Smith Family Law Update: Week of May 1, 2017

Robinson v. Robinson: Fla 1st DCA, May 5, 2017:
Husband’s argument that trial court should have reduced support more than it did was mooted by the heavier burden resting upon a movant seeking reduction when the parties agreed upon original agreement. However, trial court erred in requiring payments be made through State Disbursement Unit when neither party requested such relief.

Gotro v. Gotro: Fla 1st DCA, May 5, 2017:
In general, it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceeding unless a party’s misconduct during the proceedings resulted in dissipation. This must be supported by a specific finding of intentional misconduct such as use for a party’s own benefit unrelated to the marriage. In this case, the trial court erred by essentially punishing Husband even though the money utilized was for marital expenses including wife’s temporary alimony, temporary fees and a majority of the marital expenses. As equitable distribution had to be recalculated, alimony had to be recalculated (although court noted that the 39 year marriage created a presumption for permanent alimony). Further, trail court has discretion to order life insurance to secure alimony but needs to list the special circumstances supporting such insurance.

Hua v. Tsung: Fla 4th DCA, May 3, 2017:
Trial court erred by not making an explicit finding as to Husband’s ability to pay alimony and failing to note or address the presumption of permanent alimony in this long term marriage and indicating why it was not awarded. Trial court was directed that if it still ordered conditional alimony the trial court would still need to set forth an alternative alimony option if the condition was not met. Trial court also erred in classifying business shares as non-marital. Husband’s Father converted ownership of his shares in a company to Husband during the marriage. Husband’s Father intended to bequeath the shares to son upon his death, but transferred ownership during life to avoid taxes. Their wish to circumvent foreign tax obligations by placing ownership of the stock in Husband’s name, yet circumvent Florida’s equitable distribution scheme by arguing the assets were actually still Husband’s Father’s was not persuasive. Trial court also erred in ordering that the proceeds from the sale of property would be split after a loan was repaid from the proceeds of the sale. Even though the loan was for the purposes of buying the property, the court could not convert an unsecured creditor to the status of a secured creditor.

Isnord v. Isnord: Fla. 4th DCA, May 3, 2017:
Trial court did not abuse discretion in dismissing paternity action due to petitioner’s failure to serve a petition for paternity within 120 days of filing. While service by publication could be utilized where the whereabouts of the other party are not known, the petitioner did not attempt to do so before the expiration of the 120 day period.

Smith Family Law Update: Week of April 24, 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.