Family Law Updates
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
Apr 27th 2015
BRANDON-THOMAS v. BRANDON-THOMAS: April 24, 2015 Fla 2d DCA
Florida has jurisdiction to dissolve the marriage of same sex couples who were married in other states. In this case, a same sex couple married in Massachusetts and subsequently moved to Florida. The relationship soured and one party filed for dissolution. The other party challenged the ability of the Florida courts to hear the dissolution case claiming that Florida did not recognize gay marriage (see Florida’s Defense of Marriage Act, Florida Statutes 741.212 and article I, section 27 of the Florida Constitution). The state of Florida joined in on the appeal arguing along with one of the parties that Florida courts cannot dissolve such a marriage because it would effectively providerecognition of the marriage, contrary to Florida’s public policy. According to the 2nd DCA, while sexual orientation is not a protected class entitled to strict scrutiny analysis, the state of Florida bears the burden of presenting only a legitimate purpose for the law or statute.
No rational basis for the refusal to allow the requested dissolution. First, the argument that there needed to be “ a societal inducement for opposite-sex couples to marry, thus decreasing the percentage of children accidentally conceived outside of a stable, long-term relationship” ignored the fact that, biologically, same sex couples cannot accidentally conceive. Further, the States argument that allowing the dissolution would thwart Florida’s “long-standing history of defining marriage as being between a man and a woman.” However, the 2nd DCA found that the dissolution would actually support this “long-standing history” by stating that:
“If the policy is to prevent, eliminate, discourage, or otherwise preclude same-sex marriage in Florida, permitting the courts to dissolve same-sex marriages that have been previously entered into in other states would arguably further that policy by reducing the number of same-sex married couples in Florida”
Further, to allow otherwise would keep the parties financially bound to one another without any forum to be heard regarding their claimed rights to their assets and their child.
The challenging spouse and the Attorney General failed to establish that Florida Statutes section 741.212 or article I, section 27 of the Florida Constitution bear any rational relationship toward furthering any legitimate public policy that should preclude the dissolution of an out of state marriage.
HARRIS v HARRIS: April 17, 2015 Fla 5th DCA:
Trial court abused its discretion by using different standards for calculating each spouse’s income. While wife was imputed minimum wage for a forty-hour work week, trial court did not consider her reserve pay. Husband was imputed minimum wage in addition to his pension and disability. Trial court was also asked to revisit its finding that Wife only received $400 to $600 a month from the Reserves as record evidence appeared to support a higher figure. Finally, court erred in awarding Wife attorney’s fees when Wife explicitly indicated that she reserving her claim for attorney’s fees for a separate hearing and that hearing had not been held.
GILLIARD v. GILLIARD: April 24, 2015 Fla 5th DCA
Trial court erred in numerous ways regarding equitable distribution and alimony award. Court improperly ruled that a consolidated debt of $56,000.00 would be the responsibility of Husband when it was clear that it was a marital debt. The Court also erred by equally distributing Husband’s TSP account but not taking into consideration the partial liquidation of the account during litigation to pay for Wife’s attorney’s fees. This resulted in a double-dip by Wife. The court also failed to place any value on the parties’ automobiles, furniture and furnishings despite the fact they had more than a de minimis value. While the trial court is not precluded from making an inequitable distribution it must make specific findings as to each factor listed in section 61.075(1)(a)-(j), Florida Statutes. The trial court also erred in its award of permanent alimony. While permanent alimony may be appropriate, the Court calculated the amount improperly by using husband’s gross income as opposed to his net income. Further, the trial court erred in considering Husband’s future retirement benefits as current income. Finally, the court failed to make specific findings in its judgment as to all of the factors set forth in section 61.08(2), Florida Statutes to justify the type of alimony awarded.
BROGA v. BROGA: April 15, 2015 Fla 1st DCA
While Husband was voluntarily unemployed (although he refuted this at trial) the Court failed to specifically address the availability of jobs for which he was qualified before imputing income. Evidence of former husband’s prior earnings are not, in and of themselves, enough. Trial court also failed to make findings of fact regarding the necessity, cost, and availability of life insurance before ordering husband to provide it to secure child support. Finally, the trial court erred by double counting a 529 Savings Plan for purposes of equitable distribution.
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Posted by Roy Smith on
Apr 03rd 2015
Ledoux-Nottingham v. Downs: 5th DCA, April 2, 2015
The parties lived in Colorado. Ex-Wife moved to Florida with the minor children shortly after her ex-husband's death. Ex-husband's parents (paternal grandparents) timely initiated a proceeding in Colorado, seeking visitation with the children (something that is allowed in Colorado but not in Florida). In 2012 the Colorado court rendered a final order determining that it was in the best interest for the minor children for the Grandparents to have visitation and telephone contact. Mother, in 2014, moved to domesticate the Colorado in Florida (which does not recognize grandparent visitation rights) and to modify the the Colorado order to remove the grandparent time sharing as not being constitutional and against public policy in Florida. Domestication was granted but modification was denied. Mother, on appeal, did not challenge the jurisdiction of the Colorado court to enter its final order or the domestication of the Colorado order pursuant to the Full Faith and Credit Clause of the U.S. Constitution. Instead, Mother argued that the Colorado order in unenforceable as a matter of Florida law and public policy because it violates child rearing autonomy guaranteed to parents under the Florida Constitution. The 5th DCA affirmed the trial court's decision but also noted conflict with the 4th DCA which has found that the Full Faith and Credit Clause does not trump Florida's overriding public policy of a guarantee. This is the second time the 5th DCA has certified this conflict between the DCAs and may finally result in a Florida Supreme Court decision in the near future.
Horowitz v. Horowitz: 2nd DCA, April 1, 2015
As there was not competent, substantial evidence establishing that wife was a victim of domestic violence or that she was in imminent danger of becoming a victim of domestic violence, the trail court's granting of an injunction was reversed. An analysis of cyberstalking was provided and it was found that posts to Facebook did not constitute cyberstalking as posts were not directed at a specific person under Florida Statutes 784.048(1)(d). Further, Husband's posts did not "tag" his Wife or mention her explicitly in any way. While the Wife's assertion that her Facebook account was "hacked" was concerning, said behavior, even if true was not cyberstalking as it is not an electronic communication. Wife did claim that the posts were a "matter of concern" and "prevented [her] from having any privacy within [her] own home. However, said statements were conclusory and vague and not sufficient to show that she had been a victim of domestic violence. Wife also failed to establish that she had a reasonable belief that she was in imminent danger of becoming a victim of domestic violence as the alleged past incidents of domestic violence occurred 15 years ago.
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