Family Law Case Updates – March 2024 – Stephens & Stephens Marital & Family Law

Appeals:

Siegmeister v. Hellard, 49 Fla.L.Weekly D581 (Fla 3^rd DCA 2024).  Former husband appeals after mandate hearing from first appeal, arguing he met burden to prove certain assets were non-marital.  The trial court’s decision is cloaked with a presumption of correctness and the former husband presented limited record that did not demonstrate an error.  Judge Marcia B. Caballero affirmed.

Attorney’s Fees:

Shah v. Siddiqui, 49 Fla.L.Weekly D597 (Fla. 4^th DCA 2024).  Trial court erred denying post judgment motion for attorney’s fees for initial proceedings because the final judgment did not specifically reserve jurisdiction to do so.  However, there was a previous order granting the Wife entitlement to all of her attorney’s fees incurred in the divorce, which reserved on the amount and this was sufficient to reserve jurisdiction.  Judge Darren Shull reversed.

Haslauer v. Haslauer, 49 Fla.L.Weekly D544 (Fla. 1^st DCA 2024).  Trial court erred awarding attorney’s fees to wife, when husband unilaterally used a marital account to pay his attorney.  The trial court’s conclusory finding that husband had the ability and the wife had the need was not sufficient, as there were no findings about the wife’s needs.  There is nothing in F.S. 61.16 that provides for an award of fees when one party pays from marital assets.  Award of attorney’s fees vacated.  Judge John T. Brown affirmed in part, vacated in part.

Levy v. Levy, 49 Fla.L.Weekly D527 (Fla. 3^rd DCA 2024).  Order denying request for fees because former wife was receiving assistance from her brother and boyfriend, and the former wife may also be responsible for causing fees herself.  Remanded to determine if financial assistance is regular and continuing, and to make findings as to fees caused by former wife.  Judge Ivonne Cuesta reversed.

Pimienta v. Rosenfeld, 49 Fla.L.Weekly D454 (Fla. 3^rd DCA 2024).  The trial court erred summarily denying wife’s motion for attorney’s fees without making any findings as to need and ability to pay, after properly dismissing her petition for modification. Judge Scott M. Bernstein, affirmed in part and reversed in part.

Enforcement:

Merlihan v. Skinner, 49 Fla.L.Weekly D602 (Fla. 4^th DCA 2024).  Order finding mother in contempt reversed because it lacked finding Wife had ability to comply with order, and Court failed to identify specific language in order Wife allegedly violated. Judge Mariya Weekes reversed.

Montemurro v. Obaya, 49 Fla.L.Weekly D580 (Fla. 3^rd DCA 2024).  DOR conceded husband’s payment of support was not considered it calculating his arrears, and it was unclear whether husband’s payment of alimony was considered in calculation, so matter reversed and remanded.  Judge Jason Emilios Dimitris reversed.

Kritzman v. Kritzman, 49 Fla.L.Weekly D452 (Fla. 3^rd DCA 2024).  Order requiring former husband to pay alimony arrears from his 401(k) that was already being used as an equitable lien to enforce alimony reversed, when order imposing 401(k) as an equitable lien was reversed.  Judge Spencer Multack reversed.

Equitable Distribution:

Bartolotta v. Bartolotta, 49 Fla.L.Weekly D456 (Fla. 2^nd DCA 2024).  Trial court erred awarding ½ of marital portion of FRS to Wife when agreement clearly provided wife gets ½ of the entire benefit, and it was not limited to the marital portion in the parties’ agreement.  Court should not have taken parole evidence as agreement was not ambiguous.  Judge Steve D. Berlin reversed.

Hines v. Williams, 49 Fla.L.Weekly D400 (Fla. 4^th DCA 2024).  Even without a transcript, final judgment attaching an equitable distribution chart was not sufficient, as judgment on its face contained no findings of fact explaining why substantial assets were deemed non-marital.  Judge James L. Martz affirmed in part, reversed in part.

Exclusive Use and Possession:

Lowry v. Lowry, 49 Fla.L.Weekly D498 (Fla. 5^th DCA 2024).  The trial court erred partitioning marital residence with $800,000 of equity as opposed to granting Mom with majority timesharing exclusive use and possession until youngest child emancipates.  Trial court found there would be a substantial cost for both parties to obtain new residences.  A trial court should award the primary residence to the parent until youngest child emancipates or wife remarries, unless there are special circumstances.  Judge Joan Anthony affirmed in part, reversed in part.

Grandparent Visitation:

Mattingly & Mattingly v. Hatfield 49 Fla.L.Weekly D492 (Fla. 1^st DCA 2024).  Opinion withdrawn and replaced with 2024 WL 3281867 (July 3, 2024).

Modification:

Pappas v. Pappas, 49 Fla.L.Weekly D429 (Fla. 2^nd DCA 2024).  Trial court properly granted a motion to temporarily suspend alimony based upon short-term disability leave, but erred modifying alimony permanently because of it.  Judge Hunter W. Carroll affirmed in part, reversed in part.

Parenting:

Southwell v. Southwell, 49 Fla.L.Weekly D655 (Fla. 2^nd DCA 2024).  The trial court affirmed for awarding Father no timesharing because he did not complete the required parenting class.  F.S. 61.21(4)(a) mandates each party has 45 days to file a notice of completion of the course.  F.S. 61.21(5) authorizes the court to excuse a party for good cause, but a motion must be filed within 45 days of filing.  Court has authority to deny decision-making, deny timesharing and otherwise sanction a party as the court deems appropriate for those who have been ordered to, but fail to, take this parenting class pursuant to F.S. 61.21(9).  Final judgment provided once Father filed notice of completion, he would be entitled to a “best interests” hearing on timesharing so he was not permanently foreclosed from timesharing with his child. Judge Alissa M. Ellison affirmed.

Merlihan v. Skinner, 49 Fla.L.Weekly D602 (Fla. 4^th DCA 2024).  Trial court’s order that adopted one party’s proposed final judgment and the Guardian Ad Litem’s recommendation in their entirety, was reversed.  Order did not contain required elements of a parenting plan and had an inconsistency regarding the definition of shared parental responsibility.  Interesting mix of Berg-Perlow and delegating authority to third party.  Judge Mariya Weekes reversed.

Paternity:

N.D. v. J.B., 49 Fla.L.Weekly D613 (Fla. 2^nd DCA 2024).  Trial court erred dismissing Father’s paternity action because he was not the child’s biological Father.  F.S. 742.10(1) provides that if an affidavit acknowledging paternity is executed by both parties, there is a rebuttable presumption of paternity for 60 days.  Either has 60 days to rescind affidavit.  If not rescinded after 60 days, the acknowledgement constitutes a determination of paternity and may only be challenged on basis of fraud, duress or material mistake of fact.  Judge Maria Ruhl reversed.

Relocation:

Vanderhoof v. Armstrong, 49 Fla.L.Weekly D646 (Fla. 5^th DCA 2024).  Trial court entered an order granting mother’s temporary petition for parental relocation, so that mother could stay with her new husband and new child, when new husband was in military and stationed 3 hours away.  Order reversed because other than conclusory statement that relocation was in child’s best interest, the Mother offered no evidence as to why the relocation would benefit the child, and the Father presented evidence that he could not maintain the same relationship he has with child if Mother moved 3 hours away.  Lengthy discussion of burden in opinion.  Judge Lester Bass reversed.

Morales v. Cruz, 49 Fla.L.Weekly D580 (Fla. 3^rd DCA 2024).  Temporary order allowing father to relocate with minor children affirmed.  Mother initially agreed but now asserts underlying petition is defective.  The comprehensive findings rendered in the challenged order were legally sufficient and well supported by the testimony and evidence.  Judge Marcia del Rey affirmed.

Sanctions:

Pino v. Pino, 49 Fla.L.Weekly D538 (Fla. 4^th DCA 2024).  The trial court erred granting motion for contempt and striking former husband’s petition to terminate alimony as a sanction under 12.380(b)(2), when trial court ended hearing and did not allow former husband to present evidence and testimony.  Judge Darren Shull reversed.

Malek v. Malek, 49 Fla.L.Weekly D394 (Fla. 3^rd DCA 2024).  The trial court was reversed for requiring husband to complete 50 hours of community service for shooting and maiming the wife’s dog with a pellet gun.  The trial court’s inherent authority to sanction a litigant does not extend to imposition of a penal sanction, without following procedural requirements of Fla.R.Crim.P. 3.840.  Judge Jason E. Dimitris, reversed.

UCCJEA:

Kilcrease v. Brown, 49 Fla.L.Weekly D557 (Fla. 1^st DCA 2024).  Mother sought enforcement of Oklahoma support order in Florida, and the Florida Court made additional findings that support order was temporary in nature and subject to modification without a showing of a substantial change of circumstances.  Mother appealed this provision. Appellate court explained that legal determination had no relation to the relief granted to the Mother, and the Mother should rest assured the statement is a legal nullity.  Appellate court provides detailed explanation why Florida court cannot modify an Oklahoma support order which has concurrent jurisdiction and no exceptions were met.  Florida court lacks jurisdiction to modify.  Judge Tiffany M. Baker-Carper’s erroneous order dismissed.