Smith Family Law Update: Week of March 27, 2017
Hooker v. Hooker: Fla Sup Ct, March 30, 2017:
Fourth DCA erred by not deferring to the trial court’s findings as to whether there had been donative intent (converting non-marital property to marital property). The 4th DCA should have only focused on whether the finding was sufficiently supported by the record as would have been appropriate under the “competent, substantial evidence” standard. The 4th DCA made the error of substituting its own judgment and findings of fact regarding whether the interspousal gift existed by improperly reevaluating the evidence to determine if it satisfied the preponderance of the evidence standard (which is applicable at trial, not on appeal).
***Interesting facts in the underlying case at the trial level as the parties had a prenuptial agreement indicating that the parties would keep their premarital assets and any appreciation of those assets. The two properties at issue were indeed premarital and neither were converted to Wife’s name in whole or in part. Wife argued that there was still an interspousal gift (elements being a) donative intent, b) delivery or possession of the gift, and c) surrender of dominion and control of the gift). Husband used non-marital funds to build on the properties and pay for expenses on the properties. The properties were used as the family’s summer homes. However, the trial court found that there was donative intent stating that “In contrast to the evidence presented at the Final Hearing regarding the way the Husband exclusively handled his other real property, assets and investments, [the subject properties] were treated as the joint family property of the Wife.”
Patel v. Shah: Fla 3rd DCA, March 29, 2017:
Trial court erred in finding that Wife had not filed a counter-petition and therefore had not raised a need for alimony. The Wife’s responsive pleading, though titled “Reply,” was functionally a counter-petition as it a) contested the Husband’s claim that there was no marital property, b) identified Husband’s property, c) described Husband’s income, and d) described Wife’s non-marital belongings. Wife’s “Reply” also included thirty “Prayers” including requests for the equivalent of alimony and equitable distribution. Trial court’s failure to accept the “Reply” as a counter-petition led to several additional errors such as failing to require Husband to comply with mandatory disclosure as well as the finding that Wife had waived a claim for alimony.
Rorrer v. Orban: Fla 3rd DCA, March 29, 2017:
Trial court erred in several ways by applying its own calculation when awarding attorney’s fees based upon its belief that the parties should share in the expense of attorney’s fees. The court wrongfully combined the attorney’s fees and costs of the parties and then awarded Wife only a portion of that total based on a comparison of the parties’ incomes rather than on a determination of need and ability to pay. The court further erred by not considering Husband’s documented improper litigious behavior which ran contrary to the court’s own stated goal of encouraging litigant to economize legal expenses. Finally, Husband’s argument that the post-judgment fees should not have been considered as the Court had not retained jurisdiction was rejected.
Riddle v. Riddle: Fla. 4th DCA, March 29, 2017:
A court does not need to find a substantial change in circumstances to modify a temporary time sharing (custody) order. Such a finding is only necessary when modifying a final decree. The trial court need only not abuse its discretion in entering such a modification.
Posted by Roy Smith on Mar 31st 2017
