Weekly Case Results from The Smith Family Law Firm
Family Law Weekly Case Results
Molina v. Perez: (3rd DCA March 9, 2016):
Trial judge should have disqualified herself. The allegations of a motion for disqualification must be assumed to be true and the statements of the judge should be weighed based on the reasonable effect on the party seeking disqualification, not the subjective intent of the judge.
Marquez v. Lopez: (4th DCA March 9, 2016):
The trial record was incomplete and the Final Judgment failed to contain the necessary findings a to several issues. It was unclear if the timesharing plan for the children was decided by the court or pursuant to agreement. Regardless, the court had the responsibility to articulate a minimum finding that the timesharing (whether agreed to, or not) was in the best interests of the child. The trial court also simply awarded the parties the property in their respective possession but did not complete an equitable distribution schedule. While this is allowed when to evidence is presented as to valuation, the trial court, in this case did have evidence of value of certain assets as a trial court may rely on one spouse’s testimony where neither presents expert testimony. The child support order was also inaccurate as it did not take into consideration wife’s payroll deductions when calculating her net income.
Farghali v. Farghali: (4th DCA March 9, 2016):
The 4th DCA formally adopted the rule set forth in Simmons v. Simmons, 979 So. 2d 1063 (Fla 1st DCA 2008) that “a party is not entitled to complain that a judgment in a marital and family law case fails to contain sufficient findings unless that party raised the omission before the trial court in a motion for rehearing.” In this case there was no motion for rehearing and no trial transcript to facilitate a review of the decision below.
Husband attempted to challenge the trial court amendment of a QDRO (Qualified Domestic Relations Order) claiming that the court lost jurisdiction after the final judgment was entered and the case was on appeal. However, the trial court’s amendment did not materially change the original judgment and only modified terminology of the transfer. While this was not error, the appellate court pointed out that the order was still ambiguous and therefore the QDRO could not be utilized. Instead, the issue was remanded to the court for a different solution. The 4th DCA suggested an order wherein Husband would simply need to pay Wife half of his monthly pension benefits upon receipt would be a possibility. The appellate court noted that a lump sum calculation, under these facts, would be inherently speculative and unfair to one of the parties. The trial court also erred by ordering that equitable distribution would be enforceable through contempt power.
Longarzo v. Castillo: (4th DCA March 9, 2016):
Trial court’s dismissal of former wife’s petition to modify custody, timesharing, and child support based on wife’s “unclean hands” in failing to purge a contempt order entered years earlier was improper as trial court did not hold an evidentiary hearing as to wife’s present ability to purge the contempt. Although wife had ability to pay when contempt order was entered, it is the present ability to pay that must be considered in determining whether the doctrine of “unclean hands” should be applied.
Posted by Roy Smith on Mar 14th 2016
