Family Law Updates

Smith Family Law Update: Week of March 20, 2017

Blair v. Blair: Fla 2nd DCA, March 22, 2017:

Trial court erred in aspects of valuation of marital portion of non-marital business, “dissipated assets”, as well as calculation of Husband’s income:

BUSINESS VALUATION:

1. Several of Husband’s arguments were rejected by the appellate court as there was simply a difference of opinion between Husband’s expert and Wife’s expert and the trial court had discretion to choose which expert it found more credible.
2. The parties did agree that the business was non-marital but that there had been an increase in the value of the company due to Husband’s efforts.
3. Trial court erred in not including the business real property when valuing the company. While the change in value of the real property may have been due to passive factors (and the calculation of the marital portion of the non-marital business is dependent on an increase of value resulting from Husband’s marital labor under Florida Statutes 61.075(6)(a)(1)(b)), the failure to include the property owned by the business, which had depreciated during the marriage, resulted in an inflated valuation of the “marital portion” of the non-marital business. Even if some of the appreciation or depreciation of some of the assets of the business resulted from passive market forces, the overall appreciation of the business resulted from Husband’s marital labor, at least in part, and so the portion of the overall appreciation resulting from the marital labor was subject to equitable distribution.
4. In valuing the business, trial court erred in including the retained earnings of the company while, at the same time, ordering that all retained earning be paid out the executives as part of equitable distribution. This constituted a double-dip.

DISSIPATED ASSETS:

Trial court erred in charging Husband in the distribution scheme with dissipation of assets where there was no evidence that there was misconduct in the dissipation. Here the record reflected that the use of these assets were indeed for living expenses and actually, in part, paying expenses of Wife.

INCOME:

While a company’s retained earnings can be included in calculating income if the earnings were retained for noncorporate purposes, such as to shield this income from the reach of the other spouse during dissolution, (the improper motive for its retention making it available “income”), the Wife in this case offered no evidence or theory that this was the case. As such, the trial court erred in counting the retained earnings as income for alimony and child support calculations.

***As a side note, Husband also challenged the Final Judgment as it had been entered 8 months after the respective counsels submitted written closing arguments and proposed Final Judgments. While the 2nd DCA found the delay troubling it was not per se a basis for reversal citing to McCartney v. McCartney.

Myrick v. Myrick: Fla 2nd DCA, March 24, 2017:
Trial court erred in awarding attorney’s fees to Father from Mother based upon, what the appellate court was forced to assume was, the inequitable conduct doctrine. The order lacked the proper findings of fact. However, the 2nd DCA went further and stated that the trial court also erred as Mother’s refusal to agree to an increase in timesharing did not constitute the type of behavior contemplated by the inequitable conduct doctrine.

Rebolledo v. Cordero: Fla. 3rd DCA, March 22, 2017:
Wife filed for divorce in June of 2011. Husband filed a counter-petition. Wife then filed a dismissal of her petition for dissolution. Wife did not file a response to the counter-petition for dissolution. Husband secured a default on April 23, 2012 on his counter-petition. Wife filed a motion to set aside the default which attached as exhibits a proposed answer and counter-claim. On the eve of the hearing on Wife’s motion, Husband dismissed his counter-petition.

Trail court erred in lifting the default and then subsequently awarding Wife temporary and back support ($50,000.00 a month and $668,037.00 respectively). The trial court did not have jurisdiction to provide any of this relief (lifting of default or temporary relief) after Husband voluntarily dismissed his counter-petition. The only pleading Wife could file after the entry of the default was a motion to set the default aside. The filing of the dismissal by Husband rendered that pending motion moot and the court no longer had jurisdiction.

Van Maerssen v. Gerdts: Fla. 4th DCA, March 22, 2017:
Trial court erred in awarding wife temporary “undifferentiated” spousal and child support ($6,500.00 a month). There should have been separate awards (temporary spousal support and child support). The undifferentiated nature of the support further compounded the 4th DCA’s inability to determine whether the award was supported by the evidence presented.

Bernard v. Bernard: Fla. 4th DCA, March 22, 2017:
Former Husband, in violation of court order did not transfer his 401K to his Wife. Instead he withdrew the money, gave none to his Wife, and also failed to pay her support. Trial court found Husband in contempt, ordered that Husband pay Wife a specified amount in 30 days or the court would issue a writ of arrest and commitment and 179 days of incarceration. Trial court erred only in its decision regarding incarceration as the trial court relied solely on the statutory presumption of ability to pay and former husband’s failure to rebut said presumption. On remand trial court needs to make affirmative findings as to whether Former Husband has ability to pay or not.

Harriger v. Harriger: Fla 5th DCA, March 24, 2017:
Trial court erred by not including written findings stating whether accounts, which the court obviously treated as non-marital, were or were not non-marital.

D.O.R. v. Silva: Fla. 5th DCA, March 24, 2017:
Lower court erred in ordering paternity testing in a matter wherein the Department of Revenue was attempting to register and enforce a Texas order which established paternity and ordered child support. A party whose parentage of a child has been previously determined by or pursuant to law may not plead nonparentage as a defense to a proceeding under Florida Statutes 88.3151. Further, father had not filed a petition to disestablish paternity (which is possible in certain circumstances under Florida Statutes 742.18(1) if there is a basis and a petition if filed with a specific affidavit).

Smith Family Law Update: Week of March 13, 2017 (HAPPY ST. PATRICK'S DAY!)

Viscito v. Viscito: 3rd DCA, March 15, 2017:

On rehearing the 3rd DCA withdrew and replaced its pervious ruling of December 21, 2016 as follows:

Equitable Distribution: Marital Condo (good Kaaa discussion):

Wife and sister bought a condo prior to Wife being married. Upon being married, Wife and Husband bought sister's 50% share. The condo remained in Wife's name. At the time of marriage the fair market value was $225,000.00 with a mortgage of $133,000.00. At the time of trial the fair market value was $690,000.00 with a mortgage of $224,448.00. The passive appreciation was calculated properly by the trial court by taking the Loan-to-value ratio at time of marriage (.522) x Current fair market value ($699,000.00) = $360,180.00 - Current mortgage amount ($224,448.00) = Total passive appreciation ($135,732.00). Trial court did not abuse its discretion by only awarding Husband 50% of the passive appreciation ($67,866.00) for his entire share of the condo even though some marital funds had been used to acquire sister's 50% share and to make certain mortgage payments as Husband's voluntary unemployment and gambling losses had caused the aggregate mortgage debt to increase. Husband's argument that he should be awarded based on ½ of the net fair market value, plus one 1/2 of the passive appreciation on Wife's marital interest, plus certain mortgage payments from marital funds which reduced the mortgage debt on the non-marital debt was rejected. Husband's position did not take into consideration his gambling loss and unemployment ramifications nor did his calculation comply with the requirements of Kaaa.

Alimony:

Husband had only pled for permanent alimony (no other form or forms of alimony) based on the 21 year marriage. The trial court's rejection of this request was supported by the record as evidence existed to show that Husband was employable but voluntarily unemployed and Husband's gambling debts and misuse of marital funds adversely affected the family's financial position and lifestyle (Fla. Stat 61.08(2)). Further, Husband could not request other forms of alimony as he had only requested permanent alimony.

Pierre v. Jonassaint: 3rd DCA, March 15, 2017:

Trial court did not err in denying rehearing based on alleged fraud without an evidentiary hearing as Wife had failed to raise her allegations of fraud with sufficient specificity to raise a colorable claim of entitlement to relief. However, trial court did err by not including specific written findings of fact in the final judgment to "facilitate effective appellate review of the trial court's property distribution scheme." The court's referencing the parties' financial affidavits was inadequate as the final judgment did not correspond with either financial affidavit and the final judgment only specifically referenced two marital assets, neither being clearly identified or valued.

Smith Family Law Update: Week of March 6, 2017

Henson v. Henson: 1st DCA, March 7, 2017:
Trial court erred in not conforming rulings in the final judgment to the evidence and its oral pronouncements at trial. However, when trial court indicated that it would take father’s proposed timesharing schedule into consideration, but then failed to mention it in the final judgment there was no error as trial court’s remark that it would take it into consideration was not a pronouncement.

McClure v. Beck: 4th DCA, March 8, 2017:
Trial court erred in giving father ultimate decision making authority for the children but not defining the “specific aspects of the child’s welfare” over which father shall have ultimate responsibility. Giving the primary residential parent unlimited decision making authority over all matters regarding the children is incompatible with shared parental responsibility.

Gonzalez v. Hewitt: 5th DCA, March 10, 2017:
Trial court erred in denying mother’s motion to set aside default judgment in paternity case without an evidentiary hearing regarding her allegations of excusable neglect. Further, the trial court erred in failing to make appropriate findings regarding the best interest of the child pursuant to Florida Statutes 61.13(3) and by failing to include an explanation of the method by which mother can establish timesharing with the child.

J.S. V. DCF: 5th DCA, March 7, 2017:
Trial court erred in terminating parental rights (as conceded by DCF) as evidence supporting termination was not legally sufficient. Only basis for termination was mother’s failure to substantially comply with the case plan (which was the result of the children being exposed to domestic violence of mother’s boyfriend on mother and mother testing positive for controlled substances. Th plan included drug testing and substance abuse counseling).